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1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF
AUSTRALIA
SENATE
AGRICULTURAL AND
VETERINARY CHEMICALS LEGISLATION AMENDMENT BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Parliamentary Secretary to the Minister for Agriculture,
Fisheries and Forestry, Senator the Hon Judith
Troeth)
ISBN: 0642 468303
AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT BILL
2001
OUTLINE
This bill amends the Agricultural
and Veterinary Chemicals Act 1994 (the Act) to clarify the powers, functions
and duties of Commonwealth officials and authorities within the National
Registration Scheme (NRS) for agricultural and veterinary chemicals following
the decision of the High Court in R v. Hughes (2000) 171 ALR
155.
The bill also amends the Act to address certain gaps in the NRS
legislative scheme, arising independently of Hughes but also concerning
the conferral of duties, powers and functions on Commonwealth authorities and
officials, relating to the Commonwealth Administrative Appeals Tribunal (AAT)
and inspectors and analysts appointed under Commonwealth law.
Before the
High Court’s decision in Hughes, the Commonwealth had acted on the
assumption that a Commonwealth law which allowed Commonwealth officials and
authorities to perform functions or exercise powers under State laws was not
purporting to impose a duty on the Commonwealth official or authority to perform
those functions and powers. It was the State law that was intended to impose
any such duty. The Commonwealth law merely indicated that the Commonwealth
Parliament supported the conferral of duties, functions and powers by State
legislation. The legislative expression of that support removed any argument
that the State legislation conferring the duties, functions or powers would be
invalid on the basis that it was inconsistent with Commonwealth legislation,
discriminated against the Commonwealth or infringed the Commonwealth’s
immunity from State laws.
In Hughes, the High Court held that
Commonwealth legislation had purported to impose a duty on the Commonwealth
Director of Public Prosecutions (DPP) to exercise State powers, and that the
imposition of that duty needed to be firmly supported by a head of Commonwealth
constitutional power, particularly where the exercise of the power could
adversely affect the rights of individuals. As just noted, the finding that the
Commonwealth law itself operated to impose a duty to exercise State powers was
contrary to the assumptions made by the Commonwealth in relation to the
conferral of State duties, functions and powers on Commonwealth authorities and
officials.
The Court in Hughes left open the question whether
there was any ‘constitutional imperative’ for the Commonwealth law
to have imposed the duty on the DPP (at 171 ALR 164) – in other words,
whether it was necessary for this duty to have been imposed by Commonwealth
rather than by State law. It may be that the High Court will in future hold
that any duty which a Commonwealth body has to perform State functions or powers
must be imposed by Commonwealth law and cannot be imposed by State law. Of
course, such a finding may significantly undermine the rationale for
Commonwealth/State cooperative schemes.
The Hughes decision
related to the powers of the DPP within the Corporations Law cooperative
legislative scheme, but is also potentially relevant to other Commonwealth-State
cooperative schemes such as the NRS. Within the NRS there are a range of
Commonwealth officials and authorities which perform functions and exercise
powers conferred under State legislation.
The amendments made by this
Bill will:
• clarify that the Commonwealth authorises the conferral
by State law of duties, as well as functions and powers, on Commonwealth
officials and authorities;
• clarify that in authorising such a
conferral, the Commonwealth intends to rely to the fullest extent possible, but
not to exceed, the legislative powers available to it under the
Constitution;
• ensure, to the fullest extent possible within the
Commonwealth’s legislative power, that a duty, function or power of a
Commonwealth official or authority is conferred by Commonwealth law rather than
State law, where there is a constitutional imperative to do so to ensure the
valid conferral of the duty, function or power;
• clarify that where
duties, powers or functions of Commonwealth officials or authorities under State
law are taken to be conferred by Commonwealth law, the Commonwealth intends to
rely to the fullest extent possible, but not to exceed, the legislative powers
available to it; and
• specifically confirm, both prospectively and
retrospectively, that a State law may confer duties, functions and powers on the
AAT and on inspectors and analysts appointed under Commonwealth law.
In
relation to the issues raised by Hughes, the Bill is designed to ensure,
to the greatest extent possible, that within the NRS the duties, powers or
functions of Commonwealth officials or authorities under State law will be able
to be interpreted as being conferred by State law rather than Commonwealth
law.
FINANCIAL IMPACT STATEMENT
There are no direct
financial impacts from this Bill.
AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT BILL
2001
NOTES ON CLAUSES
Clause 1: Short
Title
1. The short title of the Act is the Agricultural and
Veterinary Chemicals Legislation Amendment Act 2001.
Clause 2:
Commencement
2. Schedule 2 (which deals with amendments consequential
on the commencement of the Administrative Review Tribunal Act 2001)
commences either immediately after the commencement of Item 2 of Schedule 1 of
the Bill, or at the time when Parts 4 to 10 of the Administrative Review
Tribunal Act 2001 commence, whichever is later. Otherwise, the Bill
commences on Royal Asset.
Clause 3: Schedules
3. This
clause gives effect to the amendments or repeals of Acts, or other items,
provided by each Schedule to the Bill, subject to commencement of each Schedule
under clause 2.
Schedule 1: Amendments relating to constitutional
matters
4. This schedule effects a number of amendments to the
Agricultural and Veterinary Chemicals Act 1994 (the Act) relating to the
Hughes case and to the conferral by State law of duties, functions or
powers on the AAT and inspectors and analysts appointed by under Commonwealth
law.
Item 1: Section 4
5. This item inserts a definition
of ‘confer’ into section 4 of the Act, to make it clear that a
reference to the conferral of a duty is to be interpreted to include the concept
of the imposition of a duty (see Items 2 and 3).
Item 2: Section 18
and Item 4: Application of Amendment
6. This item replaces section
18 of the Act. Previously, section 18 provided that a corresponding law of a
State may confer prescribed functions and powers upon Commonwealth authorities
and officers. New subsection 18(2) will expressly authorise the conferral of
duties, as well as functions and powers, in this manner. A ‘corresponding
law’ is defined in section 4 of the Act to be an Act or a related
legislative instrument of a State which corresponds to the Commonwealth
Act.
7. In addition to the general authorisation in new subsection 18(2),
new subsection 18(1) will specifically authorise the conferral of duties,
functions or powers under a corresponding law on the AAT, and on inspectors
appointed under section 69F and analysts appointed under section 69G of the
Agricultural and Veterinary Chemicals (Administration) Act 1992. The
duties, functions or powers may be conferred in respect of any matter relating
to the applicable provisions of the State; the applicable provisions are defined
in section 4 of the Act to be the Agvet Code or Regulations of the State or laws
of the Commonwealth that apply in that jurisdiction in relation to the Agvet
Code or Regulations of the State.
8. The specific authorisation in new
subsection 18(1) will have effect in relation to matters arising before, on or
after the commencement of that provision (see Item 4). This will provide a
foundation for State legislation validating the past actions of the AAT and
inspectors and analysts under relevant State laws where there is some doubt
about the past conferral of relevant functions or powers.
9. New
subsection 18(3) will provide that the intention of Parliament is to rely on all
legislative powers available to it under the Constitution in authorising the
conferral of duties, functions or powers on Commonwealth officers or authorities
under either subsection 18(1) or 18(2), thus ensuring the broadest possible
scope for the conferral of State duties, functions or powers as authorised by
those provisions.
10. The effect of new section 18, together with new
subsection 18A(1) (see Item 3), will be to ensure that to the maximum extent
possible, the many duties, functions or powers of Commonwealth authorities and
offices under the NRS which are set out in State laws will be taken to be
conferred by State rather than Commonwealth law.
Item 3: After
Section 18
11. This item will insert new section 18A into the Act.
New subsection 18A(1) will provide that where a Commonwealth authority or
officer has a duty, function or power conferred by a corresponding law of a
State, then that duty, function or power will not be taken to be conferred by
Commonwealth law and section 18 will not be taken to authorise that conferral
if the conferral or authorisation would contravene any constitutional doctrine
or otherwise exceed the legislative power of the Commonwealth. This is a
reading down provision which will limit the operation of section 18 to the
extent necessary to ensure that the authorisation of the conferral of duties,
functions and powers under section 18 is constitutionally valid.
12. New
subsections 18A(2) and 18A(3) will apply in a situation where it is necessary
for a constitutional reason for a particular duty, function or power which is
purportedly conferred on a Commonwealth authority or officer to instead be
conferred by Commonwealth law. The majority of the High Court in Hughes
seemed to leave open the question of whether there may be any such
‘constitutional imperative’ for a duty, power of function to be
conferred by Commonwealth law. In such a situation, subsection 18A(2) will
operate to confer the duty, function or power on the relevant Commonwealth
authority or officer. Subsection 18A(1) and 18A(3) will ensure that in doing
so, subsection 18A(2) operates to the fullest extent of the Commonwealth’s
constitutional powers, but is not taken to exceed those powers.
13. New
subsection 18A(4) provides that subsections 18A(2) and (3) do not operate to
limit section 18. Accordingly, there can be no argument that the scope of the
authorisation of the conferral of duties, functions and powers under section 18
is limited by the operation of subsections 18A(2) or (3).
Schedule 2:
Amendments consequential on changed administrative law
arrangements
14. This Schedule provides for the amendment of the
reference to the AAT in new paragraph 18(1)(a) of the Act, on the commencement
of the proposed Administrative Review Tribunal Act 2001.