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Agricultural and Veterinary Chemicals (Control of Use)
Amendment Bill 2011
CLAUSE NOTES
Clause 1 This Act may be sited as the Agricultural and Veterinary Chemicals (Control of
Use) Amendment Act 2011.
Clause 2 Commencement
The Act will commence on a day to be proclaimed.
Clause 3 Principal Act
The Act being amended i.e. the Agricultural and Veterinary Chemicals (Control
of Use) Act 1995.
Clause 4 Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by inserting after the definition of
"Registrar" the following definition:
"regulations" means regulations made under this Act;
Inserted definition due to the new infringement notice provisions.
Clause 5 Section 20 amended (Orders prohibiting or regulating handling, &c.)
Section 20 of the Principal Act is amended by inserting the following
subsections after subsection (3):
(4) Nothing in this section prevents regulations being made in respect of
prohibiting or regulating the handling, using or otherwise dealing with
a chemical product or a class of chemical products.
(5) If a provision of the regulations is inconsistent with an order made
under this section, the order prevails to the extent of the
inconsistency.
This amendment broadens the regulation-making capabilities of the Act by
allowing regulations to be made about the same matters that are currently
allowed to be dealt with by order. This is necessary because some of those
matters would be more appropriately dealt with through regulation. However,
in urgent circumstances, matters may be addressed more speedily by order
and in this case if there is an inconsistency between a regulation and an order,
the latter prevails.
Clause 6 Section 26 amended (Regulations with respect to use, &c., of certain
chemical products)
Section 26(2) of the Principal Act is amended by omitting paragraph (e) and
substituting the following paragraph:
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(e) providing for the grant of certificates of competency in
relation to
(i) the prescribed manner of handling, or use, of the
chemical product or class of chemical product; and
(ii) prohibiting that prescribed manner of handling or
use, or any work or operation in connection with that
handling or use, except by or under the supervision
of a person holding such a certificate; and
This amendment inserts the words "prescribed manner of" before the
word "handling" broadening the regulation-making capabilities to
enable differentiation between different types of handling or use (e.g.
storage, spraying etc) instead of competency requirements being
general in nature.
Clause 7 Section 27 amended (Orders controlling or prohibiting agricultural
spraying or use of chemical products)
Section 27 of the Principal Act is amended by inserting after subsection (2) the
following subsections:
(3) Nothing in this section prevents regulations being made in respect of
controlling or prohibiting of agricultural spraying for the purpose of
protecting susceptible plants and stock, public health, the
environment and trade.
(4) If a provision of the regulations is inconsistent with an order made
under this section, the order prevails to the extent of the
inconsistency.
This amendment broadens the regulation-making capabilities of the Act by
allowing regulations to be made about the same matters that are currently
allowed to be dealt with by order. This is necessary because some of those
matters would be more appropriately dealt with through regulation. However,
in urgent circumstances, matters may be addressed more speedily by order
and in this case if there is an inconsistency between a regulation and an order,
the latter prevails.
Clause 8 Sections 30 and 31 repealed
Sections 30 and 31 of the Principal Act are repealed. Provisions relating to
damage by spray drift and notification to neighbours of agricultural spraying
are better suited to be included at regulation level. Hence, this amendment to
the Act enables the implementation of detailed regulations to cover these
areas.
Clause 9 Section 37 repealed
Section 37 of the Principal Act is repealed. It would be more appropriate to
deal with requirements relating to the provision of information at regulation
level and this amendment enables the removal of the associated provisions in
the Act so that this can occur.
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Clause 10 Section 39 repealed
Section 39 of the Principal Act is repealed. These provisions have been
removed and inserted into section 67(1A) of the Act, for consolidation
purposes.
Clause 11 Part 5A repealed
Part 5A of the Principal Act is repealed. Requirements relating to infringement
notices have been removed and re-written in section 56A to ensure
consistency with the Monetary Penalties Enforcement Act 2005.
Clause 12 Section 56A inserted
The following section has been inserted after section 56 of the Principal Act:
56A. Infringement notices
(1) In this section
"infringement offence" means an offence against this Act, the
regulations or orders made under this Act to be an infringement
offence.
(2) The Registrar, or an inspector, may issue and serve an infringement notice
on a person if he or she reasonably believes that the person has
committed an infringement offence.
(3) An infringement notice may not be served on an individual who has not
attained the age of 16 years.
(4) An infringement notice
(a) is to be in accordance with section 14 of the Monetary Penalties
Enforcement Act 2005; and
(b) is not to relate to more than 3 offences.
(5) The regulations
(a) may prescribe, for infringement offences, the penalties payable
under infringement notices; and
(b) may prescribe different penalties for bodies corporate and
individuals.
(6) In the application of the Monetary Penalties Enforcement Act 2005 to
an infringement notice issued and served under this section
(a) the issuer and server of the infringement notice is taken to be a
public sector body within the meaning of the Act; and
(b) a penalty prescribed under subsection (5) is taken to be the
prescribed penalty applicable to that offence for the purposes of
section 14(a)(ii) of that Act.
Requirements relating to infringement notices have been re-written and
inserted here to ensure consistency with the Monetary Penalties Enforcement
Act 2005.
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Clause 13 Section 62 amended (Offences by employers and contractors)
Section 62 of the Principal Act is amended by inserting after subsection (2) the
following subsection:
(3) Nothing in this section prevents an employee, or person providing
service under a contract, from being found guilty of an offence,
whether or not the employer, or the person who contracted with the
person providing services, have proceedings brought against them by
virtue of this section for the same offence.
This amendment clarifies that both the employee and their employer can be
prosecuted in the event that an offence is committed by the employee.
Clause 14 Section 67 amended (Regulations)
Section 67 of the Principal Act is amended as follows:
(a) by inserting the following subsection after subsection (1):
(1A) Without limiting the generality of subsection (1), regulations
may be made in relation to one or more of the following:
(a) the prescribing of residue levels for one or more of the
following:
(i) a chemical, or class of chemical;
(ii) the distribution method for a chemical or class
of chemical;
(iii) the item which is being tested for residue;
(b) the procedures for testing residue levels in specified
circumstances, or generally;
(c) the prohibiting or regulating of the handling, storing, using
or otherwise dealing with a chemical product or a
class of chemical products;
(d) the controlling or prohibiting of agricultural spraying for the
purpose of protecting susceptible plants and stock,
public health, the environment and trade;
(e) to regulate the equipment used, or to be used, for the
purpose of agricultural spraying including, but not
limited to, the specifications, testing and maintenance
of such equipment.
(b) by omitting from subsection (5) "applied" and substituting "applied,
approved".
This amendment broadens the regulation-making capabilities of the Act
ensuring that there is a power under the Act to make all the regulations
required for the Act to operate as intended.
Clause 15 Schedule 5 amended (Permits, certificates and licences)
Schedule 5 to the Principal Act is amended by omitting "due date" from clause
7 of Part 1 and substituting "prescribed due date".
This amendment provides the power to actually prescribe a due date.
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Clause 16 Repeal of Act
This Act is repealed on the ninetieth day from the day on which it commences.
This is for administrative purposes to remove the Amendment Bill once the
amendments have been incorporated into the Principal Act.
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