Enforcement

Fact Sheet No. 4

The APVMA lacks a modern graduated compliance regime. The current legislation provides no intermediate measures between the extremes of warning letters and criminal prosecution. In addition, some provisions prevent the APVMA from responding as effectively as possible when new information becomes available.

The Better Regulation of Agricultural and Veterinary Chemicals reforms would provide the APVMA with a range of measures to effectively manage and deter non-compliance¹. These would improve the ability of the APVMA to efficiently administer its regulatory decisions, and protect public health and safety and the environment. The measures are similar to those available to other regulators under Commonwealth laws. 

Modernised provisions

The reforms provide the APVMA with the capacity to tailor its response to the seriousness of the non-compliance through a graduated range of compliance and enforcement measures. To facilitate this and in addition to the existing criminal penalties, the reforms provide diversionary mechanisms to resolve non-compliance without court litigation, including infringement notices and civil penalties.

The reforms also modernise and improve evidence collection and update the provisions relating to warrants (including access to residential premises used for commercial purposes). These reforms provide for the ability to issue substantiation notices and notices to produce information or to attend to provide information.

The reforms will allow a prosecution for an offence to be brought within two years of the date of discovery or within three years of the commission of an offence (instead of the current two years).  This provides the regulator with more time to discover and investigate matters. 

The reforms also provide for a court to award the APVMA the costs of chemical analysis and related activities upon a conviction or a decision in favour of the APVMA. This allows these costs to be offset where a court considers this to be appropriate.

New requirements

The reforms would provide the APVMA with the authority to suspend or cancel approvals, registrations and permits, where there is an imminent risk to public health and safety (including without notice), animal welfare or where false or misleading information has been provided. This will allow the APVMA to respond more effectively when new information becomes available.

The reforms provide for statutory conditions of registration or approval to be updated. This will enable conditions to be changed if this is necessary. 

A new offence is proposed for breaching conditions of a permit. This ensures that regulatory action can be targeted to the person responsible for breaching a permit condition. The only response currently available to the APVMA is the cancellation or suspension of the permit, which may affect innocent third parties who are using the permit. The additional response tools will allow for proportionate and targeted actions by the APVMA where instances of permit non-compliance are identified.

Introducing a system of penalty infringement notices will enable the APVMA to more readily respond to high-volume or more minor non-compliance. The introduction of civil penalties (with significant maximum penalties) provides an opportunity to respond proportionately to serious, deliberate and sustained non-compliance, especially where commercial benefit has been obtained through non-compliant activities.

¹ _{Schedule 4 of the DRAFT Agricultural and Veterinary Chemicals Legislation Amendment Bill 2011 includes amendments to introduce modern compliance and enforcement provisions.}