Draft Export Control Rules 2020 - Milk and Milk Products

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Summary of amendments to the Exposure Draft Export Control (Milk and Milk Products) Rules 2020

The Consultation Draft Export Control Rules 2020 – Milk and Milk Products was released for public consultation in February 2019. It is the basis from which the Exposure Draft Export Control (Milk and Milk Products) Rules 2020 (draft Milk Rules) has been developed.

The draft Milk Rules have been updated to respond to issues identified through stakeholder consultation, and to ensure the legislation will be fit for purpose and aligned with government policy and business practices. The following updates were made to the draft Milk Rules following consultation on the earlier version.

Departmental processes and business practices

A number of changes have been made to ensure that the draft Milk Rules better facilitate existing regulatory policies, processes and business practices and allow flexibility to accommodate changes in the future. For example, we have refined provisions relating to prescribed goods, government certificates, exemptions, registered establishments, approved arrangements and clarified the roles of people undertaking assessment of goods functions and the issuing of export permits.

We have also included new provisions enabling a decision to issue an export permit or government certificate to be made by a computer program. These provisions also detail who may use a computer program, and the conditions of use.

Clear and consistent definitions

We have reviewed terms in the draft Milk Rules to ensure they are clear, correct and consistent with recent amendments to the Export Control (Milk and Milk Products) Orders 2005.

We have made minor amendments to the definitions of ‘exporter’ and ‘installed’, removed the definition of ‘Joint Petroleum Development Area’ and added a new definition of ‘Timor Sea Maritime Boundaries Treaty.’

Editorial improvements to make rules clearer

A number of minor editorial changes have been made to make the draft Milk Rules easier to understand and comply with. The editorial changes include:

  • ensuring the provisions in the draft Milk Rules align with the Export Control Act 2020 (Act)
  • consolidating common provisions
  • incorporating more notes to assist readers to locate other relevant provisions.

The provisions have been renumbered. This is because the draft Milk Rules were initially structured as a chapter of the Export Control Rules. They are now structured to be a stand-alone set of Export Control Rules specifically relating to milk and milk products.

Refinement of prescribed export conditions

One of the objects of the Act is to ensure that goods that are exported meet relevant importing country requirements. The draft Milk Rules set out the detailed requirements relating to the export of milk and milk products that must be met in order for importing country requirements to be satisfied. The specific prescribed export condition mandating compliance with importing country requirements that was included in the consultation draft Milk Rules is redundant, and so has been removed from the table of prescribed export conditions in the draft Milk Rules.

Transitional provisions for draft Milk Rules

Incorporation of transitional provisions to ensure that a smooth transition of milk and milk product export operations on commencement of the new legislation. The transitional provisions are in addition to the Export Control (Consequential Amendments and Transitional Provisions) Act 2020.

The transitional provisions in the draft Milk Rules will predominantly include decisions approvals and authorisations that have been made under the current milk orders which are required to remain in force under the draft Milk Rules.

Consistency across the legislation

The Act and the draft Milk Rules must be read together. To make it easier to do this, the draft Milk Rules have been renumbered to align with the chapters in the Act. For example, Chapter 4 in the Act and Chapter 4 in the draft Milk Rules both deal with registered establishments. Chapter 3 of the Act relates to accredited properties. As the accredited properties provisions do not apply to milk establishments, the draft Milk Rules do not contain a Chapter 3.

There have also been changes, where appropriate, to standardise and harmonise the wording of provisions across the commodity-specific rules. It is anticipated that this will facilitate the development of harmonised forms and instructional training material for industry and government alike. Greater consistency across commodities, where appropriate, will make it easier to regulate and comply with regulations.

Further information

Email exportlegislation@agriculture.gov.au

Web agriculture.gov.au/market-access-trade/improving-export-legislation

How you had your say

We sought feedback from people across government and the agricultural export sector. This included:

  • Industry/peak bodies
  • Government agencies
  • Exporters and producers
  • Departmental officers
  • Authorised officers
  • Industry consultative committees.

You gave feedback through:

  • information meetings held around Australia
  • online written submissions
  • comments provided via emails.

Who engaged

Online Submissions

We received 7 submissions on the draft milk rules, from businesses, industry and departmental officers. Most submissions have been published. Some were marked confidential.

Meetings

We held information sessions on the draft rules for milk, eggs and fish. 177 industry representatives from across these export supply chains attended an information session. Information sessions were held in:

  • Sydney, NSW
  • Canberra, ACT
  • Brisbane, QLD
  • Melbourne, VIC
  • Perth, WA
  • Hobart, TAS
  • Adelaide, SA.

What you said

There was overall support in the submissions for making contemporary, more efficient and flexible legislation that is easier to understand and use, and recognition that an improved regulatory framework is needed to maintain and support future market access. You also provided constructive and useful feedback on specific issues and provisions.

What happens next

We have considered all submissions, and where appropriate, changes are being made to the draft milk rules. Policy issues, which are outside the scope of this project, have been provided to the department’s Export Dairy, Egg and Fish Program for consideration.

We will continue to collaborate with stakeholders as we draft the legislation. There will be a further opportunity to comment on the draft milk rules before they are finalised and come into effect.

Register your interest to stay informed about consultation on other draft export legislation.

Summary of amendments to the Exposure Draft Export Control (Milk and Milk Products) Rules 2020

The Consultation Draft Export Control Rules 2020 – Milk and Milk Products was released for public consultation in February 2019. It is the basis from which the Exposure Draft Export Control (Milk and Milk Products) Rules 2020 (draft Milk Rules) has been developed.

The draft Milk Rules have been updated to respond to issues identified through stakeholder consultation, and to ensure the legislation will be fit for purpose and aligned with government policy and business practices. The following updates were made to the draft Milk Rules following consultation on the earlier version.

Departmental processes and business practices

A number of changes have been made to ensure that the draft Milk Rules better facilitate existing regulatory policies, processes and business practices and allow flexibility to accommodate changes in the future. For example, we have refined provisions relating to prescribed goods, government certificates, exemptions, registered establishments, approved arrangements and clarified the roles of people undertaking assessment of goods functions and the issuing of export permits.

We have also included new provisions enabling a decision to issue an export permit or government certificate to be made by a computer program. These provisions also detail who may use a computer program, and the conditions of use.

Clear and consistent definitions

We have reviewed terms in the draft Milk Rules to ensure they are clear, correct and consistent with recent amendments to the Export Control (Milk and Milk Products) Orders 2005.

We have made minor amendments to the definitions of ‘exporter’ and ‘installed’, removed the definition of ‘Joint Petroleum Development Area’ and added a new definition of ‘Timor Sea Maritime Boundaries Treaty.’

Editorial improvements to make rules clearer

A number of minor editorial changes have been made to make the draft Milk Rules easier to understand and comply with. The editorial changes include:

  • ensuring the provisions in the draft Milk Rules align with the Export Control Act 2020 (Act)
  • consolidating common provisions
  • incorporating more notes to assist readers to locate other relevant provisions.

The provisions have been renumbered. This is because the draft Milk Rules were initially structured as a chapter of the Export Control Rules. They are now structured to be a stand-alone set of Export Control Rules specifically relating to milk and milk products.

Refinement of prescribed export conditions

One of the objects of the Act is to ensure that goods that are exported meet relevant importing country requirements. The draft Milk Rules set out the detailed requirements relating to the export of milk and milk products that must be met in order for importing country requirements to be satisfied. The specific prescribed export condition mandating compliance with importing country requirements that was included in the consultation draft Milk Rules is redundant, and so has been removed from the table of prescribed export conditions in the draft Milk Rules.

Transitional provisions for draft Milk Rules

Incorporation of transitional provisions to ensure that a smooth transition of milk and milk product export operations on commencement of the new legislation. The transitional provisions are in addition to the Export Control (Consequential Amendments and Transitional Provisions) Act 2020.

The transitional provisions in the draft Milk Rules will predominantly include decisions approvals and authorisations that have been made under the current milk orders which are required to remain in force under the draft Milk Rules.

Consistency across the legislation

The Act and the draft Milk Rules must be read together. To make it easier to do this, the draft Milk Rules have been renumbered to align with the chapters in the Act. For example, Chapter 4 in the Act and Chapter 4 in the draft Milk Rules both deal with registered establishments. Chapter 3 of the Act relates to accredited properties. As the accredited properties provisions do not apply to milk establishments, the draft Milk Rules do not contain a Chapter 3.

There have also been changes, where appropriate, to standardise and harmonise the wording of provisions across the commodity-specific rules. It is anticipated that this will facilitate the development of harmonised forms and instructional training material for industry and government alike. Greater consistency across commodities, where appropriate, will make it easier to regulate and comply with regulations.

Further information

Email exportlegislation@agriculture.gov.au

Web agriculture.gov.au/market-access-trade/improving-export-legislation

How you had your say

We sought feedback from people across government and the agricultural export sector. This included:

  • Industry/peak bodies
  • Government agencies
  • Exporters and producers
  • Departmental officers
  • Authorised officers
  • Industry consultative committees.

You gave feedback through:

  • information meetings held around Australia
  • online written submissions
  • comments provided via emails.

Who engaged

Online Submissions

We received 7 submissions on the draft milk rules, from businesses, industry and departmental officers. Most submissions have been published. Some were marked confidential.

Meetings

We held information sessions on the draft rules for milk, eggs and fish. 177 industry representatives from across these export supply chains attended an information session. Information sessions were held in:

  • Sydney, NSW
  • Canberra, ACT
  • Brisbane, QLD
  • Melbourne, VIC
  • Perth, WA
  • Hobart, TAS
  • Adelaide, SA.

What you said

There was overall support in the submissions for making contemporary, more efficient and flexible legislation that is easier to understand and use, and recognition that an improved regulatory framework is needed to maintain and support future market access. You also provided constructive and useful feedback on specific issues and provisions.

What happens next

We have considered all submissions, and where appropriate, changes are being made to the draft milk rules. Policy issues, which are outside the scope of this project, have been provided to the department’s Export Dairy, Egg and Fish Program for consideration.

We will continue to collaborate with stakeholders as we draft the legislation. There will be a further opportunity to comment on the draft milk rules before they are finalised and come into effect.

Register your interest to stay informed about consultation on other draft export legislation.

  • Most common issues you raised

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    28 August, 2019

    Consolidation of milk and egg rules

    Feedback

    Consolidating the draft milk rules with the egg rules, where a significant number of the provisions are identical, is sensible and supported, on the basis that it may increase efficiencies and reduce costs to exporters.

    Response

    We are considering combining the draft milk and egg rules into one set of rules due to the level of similarity in how the two commodities are regulated.

    We are still weighing up the potential advantages and disadvantages of doing this.

    Over time, a consolidated set of rules is anticipated to reduce administrative costs and increase efficiencies for government and industry.

    Clear and unambiguous legislation

    Feedback

    This is an opportunity to ensure the legislation is clear and unambiguous. This will make it easier for users to understand what is required and implement export requirements.

    The wording of a number of specific provisions requires further consideration.

    Response

    In keeping with the feedback, various parts of the draft milk rules are being reviewed to ensure the wording of provisions is clear and unambiguous. For example, we are reviewing the wording of provisions setting out requirements that apply for declarations of compliance, imported goods that are exported in the same covering, and to the application of trade descriptions to products that are not for retail sale. 

    Provisions will continue to be refined to ensure they are fit for purpose and correct.

    Prescribed goods

    Feedback

    The scope of products that are prescribed goods is uncertain (e.g. milk as a minor component of the finished product and milk-derived ingredients). It is unclear why some of the products listed as non-prescribed goods are excluded from the application of the Act.

    Response

    The draft milk rules specify the products that are prescribed goods and provides clarity on products that are non-prescribed goods. The current list of products at subclause MI-09(2) is intended to have the same effect as Division I of Part 2 of the Export Control (Milk and Milk Products) Orders 2005 and the department’s policy and guidelines. Listing the products that are non-prescribed goods, for example, ice-cream and colostrum, provides greater certainty for producers and exporters in knowing when export legislation applies.

    We will consider whether the draft milk rules need to be amended to clarify the scope of prescribed goods.

    Clear and consistent definitions

    Feedback

    The definitions in the draft milk rules need to be consistent with the Australia New Zealand Food Standards Code and with international standards such as the Codex Alimentarius.

    Response

    Where it is appropriate and applicable for export, definitions of terms in the draft milk rules have been aligned with the Australia New Zealand Food Standards Code and Codex Alimentarius.

    Feedback

    The definition of ‘food’ should be clear to ensure there is no confusion between human food and animal feed.

    Response

    Definitions in the draft milk rules must be consistent with the definitions in the Export Control Bill 2019, which defines food.
    To assist readers, a note will be included in subsection MI-09(1) in the draft milk rules to direct readers to the definition of ‘food’ provided by the Bill.

    10kg/litre limit for small export consignments

    Feedback

    The current 10kg/litre limitation for non-prescribed milk products has supported growth across industry and has provided broad benefits to the Australian economy. The status quo is supported by industry.

    Any changes to the current limits would significantly impact the export of certain goods.

    Response

    Changing the 10kg/litre rule is outside the scope of this project, and would require industry support and policy approval before any changes could be incorporated into the draft milk rules. We will ensure key industry participants are kept informed of any proposed changes to these limits.

    Timely decision making

    Feedback

    Decision making timeframes (consideration periods) are longer than the timeframe provided in the current legislation.

    Response

    Under the Export Control Bill 2019, the draft milk rules must set timeframes for the Secretary (or a delegate) to make certain decisions in relation to registered establishments and approved arrangements. The proposed timeframes provided by the draft milk rules are 120 days for applications for registration and approval of an arrangement, and 60 days for variations and renewals. These timeframes are a maximum timeframe only. The timeframes are still under consideration. Feedback on the proposed timeframes is welcome.

    Cost recovery arrangements

    Feedback

    Changes to cost recovery are not part of the scope of the consultation. However, changes to the new agricultural export legislative framework may lead to consequential changes to charges.

    Response

    Export legislation provides the authority for the Australian Government to recover costs for export regulatory activities. While changes to cost recovery arrangements are not part of the scope of improving agricultural export legislation, the legislation that supports cost recovery arrangements will need to be replaced to fit the new framework.

    The department regularly reviews and updates how we impose cost recovery fees and charges. This allows for accurate and efficient charging, and ensures that costs are correctly allocated to industry.

    Any new charges are subject to our cost recovery arrangements. These are in line with the Australian Government Cost Recovery Guidelines and the charging framework set out in relevant legislation.

    Ensuring no impact on free flow of trade

    Feedback

    Particular care is encouraged to ensure the draft rules do not impact the free flow of trade.

    Response

    While the improvements being made to the export legislation will alter the appearance of the legislation, the overall level of regulatory oversight provided will be maintained to support market access.

    Trading partners have been engaged and informed from the commencement of this project to ensure they are supportive of the new framework so that trade will be maintained. Engagement will continue. No concerns have been raised to date.

    Powers of the Secretary of the Department of Agriculture

    Feedback

    The power of the Secretary of the Department of Agriculture to make or change rules is supported and encouraged.

    Response

    The Export Control Bill 2019 enables the Secretary to make rules (and changes to the rules) for technical and operational reasons to ensure the export legislation operates as intended.

    This will allow the Australian Government to be more responsive to changing market conditions and importing country requirements, as well as the uptake of innovation within the industry, without undue delay.

    The Secretary will need to comply with the ordinary processes of government in making rules, including obtaining appropriate authority for changes in policy and undertaking relevant regulatory impact analysis.  Appropriate and reasonable consultations with stakeholders will need to be undertaken.

    The rules will be disallowable instruments, just as the current orders are.

    Transitional arrangements

    Feedback

    Industry should be kept informed of transitional arrangements, including any transition period.

    Response

    We are developing legislation that will enable regulatory controls in the existing legislation to transition, where possible. For example, existing registrations and approvals will carry across to the new framework when it commences. This will be done via the Export Control (Consequential Amendments and Transitional Provisions) Bill 2019 (C&T Bill) and related provisions in the commodity rules.

    We expect to provide the drat C&T Bill in 2019 for comment. We will work with relevant stakeholders to ensure operations are not interrupted and there is business continuity.

    We will continue to work collaboratively with stakeholders as the legislation is drafted.

    Guidance materials

    Feedback

    The development of industry guidance documentation is encouraged.

    Response

    We have developed supporting information to assist industry in understanding the new legislation. Further guidance on the new legislation will be made available as the legislation is developed and refined. We are also reviewing guidance material to ensure that it is updated, and reflects the new legislative framework.