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2022-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL ORGANIC STANDARD BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator McKenzie)
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NATIONAL ORGANIC STANDARD BILL 2024
OUTLINE
The National Organic Standard Bill 2024 (the Bill) creates a legislative framework to support
a National Organic Standard that outlines the requirements that organic goods must meet
when they are sold in Australia or imported into Australia.
Australia is the last nation in the OECD to not have a regulatory framework for the use of the
word 'organic' in a domestic context. The current regulatory framework is 'not fit for
purpose'. There is no legislated definition of 'organic' for non-export use, no mandatory
standard for domestic use and no requirement for certification of organic products produced
and sold domestically in Australia.
This leads to:
- a lack of clear information which may impact consumer confidence in organic
products
- costs to some businesses navigating current regulations
- potentially hindering market growth through barriers to trade and market access.
The Bill will:
- create a framework for regulating the sale or importation of organic goods in
Australia by:
̵ requiring businesses that sell organic produce to obtain an organic certificate
by an issuing body that covers organic goods for a 12-month period.
▪ There will be an exemption for an organic certificate if the reseller
made no changes to the organic goods and packaging.
▪ The reseller would still need to ensure they are not making false or
misleading representation about the organic goods.
̵ requiring importers to have an organic certificate, or similar, issued in the
exporting country through a similar process that occurs in Australia and meets
similar requirements to the National Organic Standard.
- allow an exemption to the requirement to have an organic certificate if the annual
turnover of organic produce does not exceed $25,000 or a different amount prescribed
by the rules.
- make the 'National Standard for Organic and Bio-Dynamic Produce' published by the
Department of Agriculture, Fisheries and Forestry (the 'export standard') the National
Organic Standard for domestic purposes, which is updated from time to time.
- enable audit, compliance and enforcement of the Bill.
- impose penalties for selling or intending to sell organic product where there is no
organic certificate where one is required.
- provide a transition period of 3 years from the time of the Bill's Assent.
- require an independent review of the Bill after 6 years of operation.
The Organic Industry stands united to have a suitable regulatory framework for the benefit of
the industry and consumers.
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NOTES ON CLAUSES
PART 1 - PRELIMARY
Clause 1: Short Title
1. This section would provide that the Bill, when enacted, may be cited as the National
Organic Standard Act 2024.
Clause 2: Commencement
2. The Bill commences the day the Bill receives the Royal Assent except Division 1 of Part
2, which relates to civil penalty provisions and Part 4, which relates to audits, compliance
and enforcement, which will both commence 3 years after the Bill receives the Royal
Assent.
Clause 3: Simplified outline of this Act
3. The simplified outline is included to assist the reader to understand the substantive
provisions of this Bill; however, it is not intended to be comprehensive. It is intended the
reader will rely on the substantive provisions of this Bill to which the outline relates.
Clause 4: Act binds the Crown
4. This section would provide that while the Crown in each of its capacities would be bound
by the Bill, the Crown would not be liable to pecuniary penalty. This protection would
not apply to authorities of the Crown.
Clause 5: Extension to external Territories
5. This section would provide that the Bill will extend to all external Territories of Australia.
Clause 6: Concurrent operation of State and Territory Laws
6. State and Territory laws can continue to operate, to the extent that they are capable of
operating concurrently with the Bill.
Clause 7: Definitions
7. This section would provide definitions for the Bill. Notes are provided below on several
key definitions.
issuing body
8. The definition would provide that an issuing body means an approved certifying body
under the Export Control Act 2020 who perform export certification for organic goods, or
if there are no approved certifying bodies, the Secretary of the Department of Agriculture,
Fisheries and Forestry. An issuing body may also mean a person who undertakes a
similar process to what occurs in Australia under a law of a foreign country or a part of a
foreign country.
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National Organic Standard
9. The definition provides that the National Organic Standard is the National Standard for
Organic and Bio-Dynamic Produce published by the Department of Agriculture, Fisheries
and Forestry, as that document exists from time to time. The National Standard for
Organic and Bio-Dynamic Produce is Australia's technical export standard for organic
and bio-dynamic goods and provides the basis for equivalence (government-to-
government) arrangements with trading partners. The National Organic Standard is
currently available for free on the Department's website.
organic goods
10. The definition provides that organic goods means goods that are described as, or
described as including ingredients that are, organic, biodynamic, biological, ecological or
any other similar description, and includes goods that are described as in-conversion to
organic or biodynamic.
regulated sale
11. This definition provides that a regulated sale means a sale in Australia by a
Constitutional corporation; a sale in Australia using a service such as postal, telegraphic,
telephonic and other like services; a sale in Australia using a logo, mark or sign that is the
same, substantially identical or deceptively similar to an 'issuing body's' registered
trademark or intellectual property; a sale in the course of trade or commerce among the
States or trade or commerce within a Territory, between a State and a Territory, or
between 2 Territories; and a sale in a Commonwealth place within the meaning of the
Commonwealth Places (Application of Laws) Act 1970.
Clause 8: Meaning of prescribed organic goods
12. All prescribed organic goods are organic goods, other than organic goods that are
cosmetic products.
13. Organic goods are also taken not to be prescribed organic goods if the organic goods are
for use of passenger and crew on an aircraft or vessel on a flight or voyage into Australia,
are imported and held in bonds (customs) at all times before being exported, are imported
and then exported in same covering and trade description as imported, or if a consignment
of organic goods is not more than 10 litres of liquid or 10 kilograms.
PART 2--SELLING OR IMPORTING PRESCRIBED ORGANIC GOODS IS
SUBJECT TO CONDITIONS
Division 1--Civil penalty provisions
14. Clause 9 provides that a person is liable to a civil penalty if they sell 'prescribed organic
goods' and it is a 'regulated sale' and the person does not hold an organic certificate that
covers the goods that is in force at the time of sale, and the goods were not earlier brought
or imported into Australia. The civil penalty is 960 penalty units.
15. In addition, a person is liable to a civil penalty if they bring or import prescribed organic
goods into Australia and the person does not hold an organic certificate that covers the
goods in force at the time of sale. The civil penalty is 960 penalty units.
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16. If the requirements are not met as outlined in clause 9 (above) and the person intends to
obtain a commercial advantage over the person's competitors, or potential competitors, as
a result of selling the goods, or bringing or importing the goods into Australia, they will
be liable to a civil penalty as outlined in clause 10. The civil penalty that applies to an
individual is 4,000 penalty units or if a body corporate the penalty is outlined in clause
13.
17. A person is liable to a civil penalty if the person intends to sell prescribed organic goods
that would be a regulated sale and does not hold an organic certificate, and the goods
were not earlier brought or imported into Australia as provided by clause 11. The civil
penalty is 960 penalty units.
18. A person is liable to a civil penalty under clause 12 if the person makes prescribed
organic goods available for sale, in circumstances which would constitute a regulated
sale, and the person then represents (expressly or by necessary implication) that the goods
are organic using a logo, mark or sign that is the same (substantially identical or
deceptively similar to an issuing body's registered trademark or intellectual property); or
the person holds an organic certificate; or the operations to produce or prepare the goods
have been carried out in accordance with the National Organic Standard; and the person
makes the goods available for sale knowing that the representation is false or misleading
in circumstances in which the goods were not earlier brought or imported into Australia.
The civil penalty is 960 penalty units.
19. A person is also liable to a civil penalty if the person imports prescribed organic goods
and represents (expressly or by necessary implication) that the goods are organic using a
logo, mark or sign that is the same, substantially identical, or deceptively similar to an
issuing body's registered trademark or intellectual property; or the person holds an
organic certificate issued in the other country; or the operations to produce or prepare the
goods have been carried out in accordance with a standard applying the other country that
is similar with the National Organic Standard and the person does so knowing that the
representation is false or misleading. The civil penalty is 960 penalty units.
20. The penalties for body corporates are different to individuals as outlined in clause 13 of
the Bill. The penalty for a body corporate is a maximum of 20,000 penalty units, or three
times the value of a benefit obtained as a result of the conduct which caused the original
contravention (whichever of the two penalties is greatest).
Division 2--Exemptions
21. Division 2 sets out a number of circumstances in which Division 1 (which sets out civil
penalties) does not apply to a regulated sale of prescribed organic goods or to the bringing
or importing of prescribed organic goods into Australia as outlined in clause 14. This
includes a circumstance in which a person makes a regulated sale, and the sum of all sales
of prescribed organic goods by that person during the last financial year did not exceed
the minimum threshold (which is $25,000 unless the rules prescribe another amount).
22. Clause 14 also outlines exemptions if the goods are a commercial sample, or are being
sold for experimental purposes or in exceptional circumstances.
23. Subclause 14(2) provides an exemption to a regulated sale of goods if the seller acquired
the goods as the result of an earlier regulated sale by a person; and the earlier seller had
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an organic certificate covering the goods that was in force at the time of the earlier sale;
and during the period between these two sales the goods are not changed, and not mixed
with other goods in the production of different goods; and the packaging of the goods
does not change.
PART 3--ORGANIC GOODS CERTIFICATES
24. An organic certificate is a certificate that meets the requirements set out in clause 15.
This includes being in a form approved by the Secretary or if from another country in a
form that the Secretary has recognised in writing. The matters that need to be stated in the
certificate include the issuing body for the certificate, the kinds of goods covered by the
certificate, the name of the organic operator who carries out the last operation to produce
or prepare the goods for sale in Australia or for bringing or exporting to Australia; the
identification number (if one has been issued), the 12 month period during which the
certificate covers regulated sales in Australia and, if the goods are to be imported into
Australia, the period during which the certificate covers exports of those kinds of goods
to Australia.
25. The certificate also needs to cover that the issuing body believes that the operations to
produce or prepare those kind of goods will be carried out in accordance with the
National Organic Standard or, if the certificate is issued in another country, a standard
that is similar to the National Organic Standard.
26. Under clause 16 a person wishing to make one or more regulated sales of prescribed
goods may apply to an issuing body for an organic certificate to cover those goods. The
application must be made in a manner and form approved by the Secretary and include
the information prescribed by the rules (if any).
27. Clause 17 provides that if a person who made an application for an organic certificate
becomes aware of information included in the application or documentation that was
incomplete or incorrect, or if a change prescribed by the rules occurs, then the person
must, as soon as practicable, give the issuing body the additional or corrected
information. Failure of the person to comply with this requirement carries a civil penalty
of 60 penalty units.
28. Clause 18 provides that the issuing body must make a decision to issue a certificate or
refuse to issue a certificate if the body receives an application.
29. The issuing body may refuse to issue a certificate if the issuing body does not reasonably
believe that the operations to produce or prepare the goods will be carried out in
accordance with National Organic Standard or that the matters to be stated in the
certificate are correct, or because the issuing body believes that the applicant made a
false, misleading or incomplete statement.
30. In addition, under clause 18, the issuing body can refuse to give a certificate if
information or documents requested by the issuing body are not provided within a
reasonable time period, or because the applicant refused to give consent to enter the
premises to conduct an audit; or refused to cooperate with a request by the issuing body;
or because the issuing body reasonably believes that the applicant has contravened a
requirement of the Act. The issuing body may also refuse to give a certificate if
circumstances prescribed by the rules exist.
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31. The issuing body may issue an organic certificate that is subject to conditions. If the
issuing body decides to impose a condition on an organic certificate it must give the
holder of the certificate a written notice stating that a condition is to be imposed, the
reasons for the condition and the date the condition is to take effect.
32. The period an organic certificate is in force is for the 12-month period stated in the
organic certificate as per clause 19.
33. Under clause 20 an issuing body may revoke an organic certificate issued in Australia if
they believe any of the following:
• the information stated in the certificate is incorrect;
• the operations to produce or prepare the goods have not been carried out in
accordance with the National Organic Standard;
• the Act has not been complied with;
• the integrity of the goods cannot be ensured; or
• the holder of the certificate has engaged in conduct where they have intimidated a
person performing powers under the Act, or hindered them performing functions
under the Act and the conduct is contrary to a requirement of the Act.
34. Clause 20 also allows a certificate to be revoked if a false, misleading or incomplete
statement is made by the holder; or a condition on the certificate has not been met; or the
certificate has not been or is not being kept secure in accordance with the rules; or
because circumstances specified in the rules exist.
35. If an issuing body decides to revoke the certificate it must give a written notice to the
holder of the certificate stating that the certificate is to be revoked, providing the reasons
for the revocation and setting out the date the revocation is to take effect.
36. Clause 21 provides that the person who is in possession of an organic certificate must
return that certificate to the issuing body in circumstances prescribed by the rules and at
the time, or within a period prescribed by the rules. If the person does not return the
certificate within the timeframe there is a civil penalty of 60 penalty units.
37. The issuing body may charge fees as set out in clause 22.
PART 4--AUDITS, COMPLIANCE AND ENFORCEMENT
Division 1--Audits
38. Clause 23 provides a simplified outline of the Division.
39. Clause 24 provides that the Secretary may require an audit to be conducted into whether
(for an organic certificate issued in Australia) any matters in paragraphs 20(1)(a) to (i)
exist in relation to the certificate. The Secretary may also require an audit as to whether
(for a person who imported prescribed organic goods into Australia) the person has a
copy of an organic certificate that covers the goods, was issued to the organic operator
who carried out the last operation to produce or prepare the goods for bringing or
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exporting to Australia; and was in force at the time the goods were brought or imported
into Australia.
40. Clause 24 also provides that the audit may be conducted at any time (whether or not the
certificate is in force) and by an approved auditor. Under clause 25 the Secretary may
require a single audit or a program of audits.
41. The Secretary need not give notice of an audit as provided in clause 26. Before starting
an audit, the auditor must give a description of the scope of the audit to the person to
whom the audit relates.
42. In addition, clause 26 requires an auditor to show their identity card to the relevant person
for the audit. Rules may make provision in relation to other matters relating to the
conduct of an audit, and how the process is to be followed after an audit has been
completed. Rules may also be made in relation to information that must be provided to
relevant person, reports to be provided, and actions the Secretary may require the relevant
person for the audit to take after the audit has been completed.
43. The relevant person for an audit must provide the auditor with the facilities and assistance
that are reasonably necessary for the conduct of the audit as required under clause 27.
44. The powers of auditors are outlined in clause 28 and include anything the auditor
considers necessary, including requesting information or documents, taking samples of
goods or equipment, and arranging for another person with appropriate qualifications or
expertise to take, test or analyse samples of goods or from equipment or other things used
in operations to which the audit relates.
45. Clause 29 allows the Secretary to approve persons to conduct the audits and approved
auditors may charge fees as per clause 30.
46. The Secretary may issue an identity card to an approved auditor (clause 31) and there is a
civil penalty of 1 penalty unit for failure to return the identity card after the person ceases
to be an approved auditor (clause 32).
Division 2--Compliance and enforcement
47. The ACCC can in writing authorise a person or class of persons to be an authorised
officer under the Act if the person, or class of persons, is an officer or employee of a
Commonwealth body or an officer or employee of a State or Territory body as per clause
33. There must be an arrangement in place with a State or Territory body if an officer or
employee of a State or Territory, or class of persons that includes the officer or employee,
is to become an authorised officer.
48. Under clause 33 a person must not be authorised by the ACCC unless the ACCC is
satisfied that the relevant training and qualification requirements have been undertaken or
will be undertaken before the person exercises any powers, or performs any functions, as
an authorised officer. The ACCC must determine, in writing, what the relevant training
and qualification requirements for authorised officers are. This clause also outlines what
the instrument of authorisation must specify.
49. Clause 34 provides that the rules may make provision in relation to the authorisation of
persons under clause 33. This includes rules in relation to applications to be authorised,
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dealing with such applications, additional requirements that must be met for
authorisation, matters the ACCC must have regard to in considering an application for
authorisation, conditions of an authorisation, the period of effect of an authorisation,
assessment of the competency of authorisation and suspension and revocation of an
authorisation.
50. Clause 35 allows the ACCC to enter into an arrangement with a State or Territory body
for officers or employees of the body to be authorised officers.
51. Monitoring powers are set out in clause 36. The Bill, and any information given in
compliance or purported compliance with the Bill, is subject to monitoring under Part 2
of the Regulatory Powers Act.
52. Investigation powers are set out in clause 37. A civil penalty provision is subject to
investigation under Part 3 of the Regulatory Powers Act.
53. Civil penalties are enforceable under Part 4 of the Regulatory Powers Act as outlined in
clause 38. This allows a civil penalty provision to be enforced by obtaining an order for a
person to pay a pecuniary penalty for the contravention of a provision. The ACCC is the
authorised applicant in relation to the civil penalty provisions, and the relevant court is as
described in clause 7, and this extends to every external Territory.
54. Clause 39 provides that the provisions of the Bill are enforceable under Part 6 of the
Regulatory Powers Act, which relates to enforceable undertakings. For the purposes of
Part 6 of the Regulatory Powers Act the ACCC is the authorised person in relation to the
provisions referred to, the relevant court is as described in clause 7, and this extends to
every external Territory.
55. Clause 40 provides that the provisions of the Bill are enforceable under Part 7 of the
Regulatory Powers Act, which relates to injunctions. The ACCC is the authorised person
in relation to the provisions referred to, the relevant court is as described in clause 7, and
this extends to every external Territory.
56. Clause 41 is a simplified outline of Subdivision G of Division 2 of Part 4 relating to
liability of executive officers and adverse publicity orders.
57. Clause 42 outlines that an executive officer of a body corporate may be liable to a civil
penalty if the executive officer knew, or was reckless or negligent as to whether, a
contravention of a civil penalty provision in Part 2 would occur, the officer was in a
position to influence the conduct of the body corporate and the officer failed to take all
reasonable steps to prevent the contravention. There are civil penalties for executive
officers of body corporates of 960 penalty units as provided in clause 42. This section
also defines what is recklessness, negligence and what reasonable steps are to prevent
contravention for the purposes of clause 42.
58. A body corporate must not indemnify a person against certain liabilities incurred by the
person as an executive officer of the body corporate. Clause 43 provides a civil penalty
for the indemnification of executive officers of 25 penalty units. Clause 44 clarifies that
clause 43 does not authorise anything that would otherwise be unlawful and that anything
that purports to indemnify a person against a liability is void to the extent that it
contravenes clause 43.
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59. A relevant court may make an adverse publicity order in relation to a person who has
been ordered to pay a penalty for a contravention of a provision of this Act. Clause 45
enables a relevant court to make an adverse publicity order on application by the ACCC
or on its own initiative, and outlines what an adverse publicity order is for the purposes of
the clause.
PART 5--OTHER MATTERS
Division 1--Review of decisions
60. Clause 46 enables a review of certain decisions by the Administrative Review Tribunal.
This includes a decision of an issuing body under subclause 18(1) to refuse to issue an
organic certificate or a decision to impose a condition on an organic certificate (subclause
18(4)) or to revoke a certificate (subclause 20(1)), or a decision by the Secretary or the
ACCC under the rules not to approve a person as an approved auditor or to vary, suspend
or revoke a person's approval as an approved auditor.
Division 2--Confidentiality of information
61. Clause 47 is a simplified outline of Division 2 of Part 5 relating to confidentiality of
information.
62. A person who obtains protected information may use or disclose the information in
performing functions or duties or exercising powers under the Act as per clause 48.
63. Clause 49 provides that a person who obtains protected information (other than protected
information in relation to which clause 50 applies) in the course of performing functions
or duties or exercising powers of the Act may disclose the information for a secondary
permissible purpose if the person considers it appropriate to do so and the information is
disclosed to an officer or employee of the Commonwealth or a State or Territory or an
officer or employee of a Commonwealth body or a State or Territory body. A person to
whom protected information is disclosed may use or disclose the information for the
purposes for which the information was disclosed.
64. Clause 50 authorises the use or disclose of sensitive information or certain other
protected information for secondary permissible purposes if the Secretary authorises a
person to do so. The Secretary must not authorise the disclosure of information to a
person other than an officer or employee of the Commonwealth or a State or Territory or
an officer or employee of a Commonwealth or a State or Territory or a third party
authorised officer.
65. Clause 51 authorises the use or disclosure of protected information to a court or tribunal
or a coronial inquiry for the purposes of proceedings.
66. Under clause 52 protected information can also be disclosed to an enforcement body, if
the person reasonably believes that the use or disclosure of the information is reasonably
necessary for, or directly related to, one or more enforcement related activities, being
conducted by or on behalf of, that enforcement body.
67. Clause 53 authorises the use or disclose of protected information if required by another
Australian law.
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68. Clause 54 authorises the disclose of protected information to a person to whom the
information relates, or the use or disclose of protected information with consent.
69. Clause 55 authorises the disclose of protection information to a person who provided the
information.
70. There are civil penalty provisions for the unauthorised use or disclosure of protected
information of 120 penalty units under clause 56. There is an exception to this civil
penalty provision for the use or disclosure of protected information that was undertaken
in good faith.
Division 3--Records
71. Clause 57 requires records to be retained by:
• a person who carries out, or has carried out, operations to produce or prepare
prescribed goods for one or more regulated sales of those goods;
• a person who holds, or has held, an organic certificate; a person who has brought or
imported prescribed organic goods into Australia; and
• a person who performs or has performed functions or who exercises or has exercised
powers under the Act.
72. The rules may make provisions for and in relation to the kind or records to be retained,
the form in which records must be retained, the period to be retained and the secure
retention of records.
73. There is a civil penalty of 20 penalty units if a person fails to comply.
Division 4--Miscellaneous
74. Partnerships, unincorporated associations and trusts apply in the Act in a corresponding
way to the Export Control Act 2020 as outlined in clause 58.
75. If the operation of the Act would result in an acquisition of property (within the meaning
of paragraph 51 (xxxi) of the Constitution) from a person otherwise than on just terms the
Commonwealth is liable to pay a reasonable amount of compensation to the person as set
out in clause 59. If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of Australia; or
the Supreme Court of a State or Territory for the recovery from the Commonwealth of
such reasonable amount compensation as the court determines.
76. Clause 60 provides for the protection of civil proceedings for the Commonwealth and
protected persons, protection for persons assisting protected persons and outlines the
meaning of protected persons.
77. The rules may authorise the Commonwealth to enter into arrangements under which
money may be paid for certain purposes connected with certifying, verifying or auditing
the operation of this Act as per clause 61.
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78. Clause 62 enables the Secretary to, in writing, delegate any of the Secretary's functions
or powers under the Act to an SES employee or an acting SES employee, in the
Department. In performing any functions or exercising any powers under a delegation, the
delegate must comply with any directions of the Secretary.
79. The Minister must cause an independent review to be conducted of the operation of the
Act as soon as practicable after the end of the 6 year period after the commencement of
the Act, a written report must be provided to the Minister within 3 months of the
commencement of the review and the Minister must cause a copy of the report to be
tabled in each House of the Parliament within 15 sitting days of that House after the
report is given to the Minister as per clause 63.
80. Clause 64 enables the Secretary to, by legislative instrument, make rules prescribing
matters required or permitted by the Act to be prescribed by the rules, or that are
necessary or convenient to be prescribed for carrying out or giving effect to the Act.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Organic Standard Bill 2024
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill regulates the sale and import of organic goods.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator McKenzie
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