Hansard debates

       AGRICULTURAL AND VETERINARY CHEMICALS (VICTORIA) (AMENDMENT) BILL
                                 Second reading

  Mr HAMILTON (Minister for Agriculture) -- I move:
That this bill be now read a second time.
This  bill will secure the  constitutional basis and  the conferral of functions
and powers  upon  which the National  Registration  Scheme for  Agriculture  and
Veterinary Chemicals is dependent following a recent decision of the High Court.
I shall provide some background on the bill and then deal briefly with its major
purposes.

When the Agricultural and Veterinary Chemicals (Victoria) Act was passed it 1994
it enabled the National Registration  Scheme  for  Agricultural  and  Veterinary
Chemicals (which I will now refer to as the NRS) to operate in Victoria. The NRS
provides a uniform national assessment and approval system for  agricultural and
veterinary chemicals. The NRS replaced separate state schemes for evaluating and
registering chemicals that existed prior to 1994.
The Agricultural  and Veterinary Chemicals (Victoria) Act 1994 adopts the NRS by
applying as a law  of Victoria, the Agvet code,  as set out in  the Agricultural
and Veterinary Chemicals Code Act 1994  of  the commonwealth. The Agvet code was
similarly adopted by the other states and territories at the same time.
The Agvet  code  provides a  uniform  regulatory  system  for  agricultural  and
veterinary chemicals  including clearance, registration, standards, permits  and
enforcement procedures.

The  legislative  package  provides for the National Registration Authority  for
Agricultural and  Veterinary Chemicals (which  I  will refer to  as the National
Registration Authority) to control agricultural and veterinary chemicals  up  to
and including the point of sale.
To help ensure that  the  Agvet  code  operates  on  a  uniform basis throughout
Australia,  the  adopting  legislation  of  the  states  provide   that  certain
commonwealth administrative laws and prosecution arrangements will apply to  the
NRS in the respective state.
The High Court case  of The Queen v. Hughes, which is  known as the Hughes case,
involved  a challenge  to  the  power of  the  commonwealth Director  of  Public
Prosecutions to prosecute breaches of state Corporations Law.

The High  Court held that the conferral  of a power on  a commonwealth agency or
officer  by a state law,  coupled  with a duty  to  exercise the power, must  be
linked to  a commonwealth  head of power. The case also highlighted the need for
the  commonwealth  Parliament to  authorise  the conferral of  duties, powers or
functions by the state on commonwealth  authorities and officers.  This decision
has  cast doubt on  the  ability of  commonwealth  authorities  and officers  to
lawfully exercise  powers and to perform  functions under state laws in relation
to intergovernmental legislative schemes.
The decision in  the Hughes  case impacts  on the NRS. The decision casts doubts
over  the exercise of powers in relation to the NRS by the national registration
authority,   the  commonwealth   Director  of  Prosecutions,   the  commonwealth
Administrative Appeals Tribunal and commonwealth inspectors and analysts.

The bill will underpin the foundations upon which the NRS is based following the
Hughes case.
The  bill re-confers powers  on commonwealth authorities and officers, where the
conferral was not specifically authorised by the commonwealth Parliament.  These
provisions  apply  to  the  national  registration  authority,  the commonwealth
Director of  Public Prosecutions  and  the commonwealth  Administrative  Appeals
Tribunal. The  bill  also  confers  powers  on  and validates  past  actions  of
inspectors  and analysts that were  done without proper  conferral of power. The
bill will  be proclaimed to commence after the commencement  of the commonwealth
Agricultural and Veterinary Chemicals Legislation Amendment Bill 

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2001 that will authorise the conferral  of these state powers. This commonwealth
bill was introduced into the Senate on 3 April this year.
In addition, I wish to make a statement under section 85 of the Constitution Act
1975 of the reason for altering or varying that section by the bill.
The proposed section 28B, being inserted by clause 6 of the bill, is intended to
alter or vary section  85  of  the  Constitution  Act  1975.  The  alteration or
variation is to the extent necessary to prevent the bringing before the  Supreme
Court of any action, suit  or proceeding in relation to anything done or omitted
to be done by a commonwealth inspector or analyst before the commencement of the
proposed clause  6. Before the enactment of clause 6 duties functions and powers
had not been properly conferred on these inspectors and analysts.

The reason for  preventing  the  bringing of these proceedings is to protect the
state  from potential liabilities  arising out of past  actions or omissions  by
commonwealth inspectors and analysts.
The bill complements  the proposed Cooperative  Schemes (Administrative Actions)
Bill   2001,   which  is   also   before   the  Parliament,   proposed   by  the
Attorney-General. This  other  bill  will  validate  past  acts  of commonwealth
authorities   and officers that were not linked to a commonwealth head of  power
under  the   constitution.  It  will  also  place  the  NRS  on  a  more  secure
constitutional footing by ensuring  that no duty, function or power is conferred
on a Commonwealth authority  or officer which is beyond the legislative power of
the state.

The Agricultural and Veterinary Chemicals (Victoria) (Amendment)  Bill  is vital
to  prevent  the  real threat of legal challenge to  actions  and  decisions  by
commonwealth authorities and officers, which is integral to the NRS. The bill is
also vital to the government's continued commitment to have an effective uniform
national registration system for agricultural and veterinary chemicals.
I commend the bill to the house.
Debate adjourned on motion of Mr McARTHUR (Monbulk).
Debate adjourned until Thursday, 31 May

Dr Napthine --  On  a point of order,  Madam  Deputy Speaker, I raise  for  your
attention the fact that the papers office is now out of copies of the Racial and
Religious Tolerance  Bill  and the  National  Parks (Marine  National  Parks and
Marine Sanctuaries) Bill. We have just had a debate on  the issue of time on the
National Parks (Marine National Parks and Marine Sanctuaries) Bill and you would
be aware of the  importance  of our being  able  to get information out  to  our
electorates for consultation  on this issue.  It  is therefore  frustrating  and
disappointing to find there  are no copies available  for honourable members  to
circulate in their electorates of  those two controversial pieces of legislation
that  require   considerable  consultation  and  consideration  by  the  broader
community.
I am advised by the papers office that it will take about a week for copies of a
circulation print to be available.

I ask you, Madam Deputy Speaker, to take up with the Speaker whether there is an
opportunity for the process to  be speeded  up. More  copies of  those two bills
need to be made available within 24 or 48  hours so that honourable members will
have the opportunity to circulate them broadly in their communities.