This content is current only at the time of printing. This document was printed on 28 March 2017. A current copy is located at http://apvma.gov.au/node/12851
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Section 99 notices
- 1. What is a section 99 notice?
- 2. Principles
- 3. What can the notice require?
- 4. Who will bear the cost?
- 5. What timeframes apply?
- 6. Can the notice be withdrawn?
- 7. What happens if the notice is complied with?
- 8. What happens if the section 99 notice is not complied with?
- 9. What if a person responds to a section 99 notice and provides false or misleading information?
- 10. Publication or disclosure
The APVMA can require a person to give information and produce documents or arrange for the analysis of chemical substances when it reasonably believes it is necessary to do so to protect the health and safety of human beings, to protect animals plants or things or the environment, or to prevent significant prejudice to trade or commerce between Australia and places outside Australia.
The APVMA may give these notices to a person who has, has had, or will have possession or custody of a substance or a mixture of substances that is or was intended for supply as a chemical product or active constituent.
The notices will allow a reasonable period for compliance with the request being made.
We will issue these types of notices via registered post or through the engagement of a process server.
This page explains how these notices work and how we will administer them.
1. What is a section 99 notice?
Notices to give information or produce documents or arrange for analysis are issued in the form of a notice in writing to a person. The notice specifies the information or document that we are seeking information about or analysis that we would like to be arranged. The notice might require you to do one or more of these things. The notice will also tell you where to send the things we are requesting, and if needed, where your analysis must be performed and by whom, including whether the analysis must be supervised by an APVMA inspector.
Overview of the legislative provisions
Notices to give information or produce documents or perform analysis are issued under section 99 of the Agricultural and Veterinary Chemicals Code (Agvet Code) scheduled to the Agricultural and Veterinary Chemicals Code Act 1994.
A notice issued under section 99 of the Agvet Code may require you to give information or documents to the APVMA about:
- the constituents of the substance or mixture
- the concentration of the constituents of the substance or mixture
- the formulation type of the substance or mixture
- the composition or purity of a constituent of the substance or mixture
- the name of each manufacturer of the substance or mixture
- the address of each site at which the substance or mixture is manufactured
- the packaging or labelling of the substance or mixture
- advertising material related to the substance or mixture
- If the substance or mixture is intended to be supplied, or has been supplied, as an active constituent for a chemical product, or as a chemical product, under a particular name—the name of the constituent or product and whether:
- the substance or mixture conforms to any standard prescribed in respect of the constituent or product with that name, any established standard or any other prescribed requirement; or
- the supply of the substance or mixture is or was in accordance with any conditions applying to the approval or registration of the constituent or product with that name; or
- any other prescribed information or documents.
For transparency we will also explain the consequence of non-compliance with the notice and inform you that we may publish in a manner that we think is appropriate:
- the name, and the address of the place of business, of the person who had possession or custody of the substance or mixture
- the holder
- the result of the analysis of the substance or mixture.
Under subsection 99(5) of the Agvet Code, you must not fail to comply with the notice we have issued without reasonable excuse.
Section 146A of the Agvet Code provides you would have reasonable excuse for refusing or failing to provide any requested information or documents or arranging for analysis on the basis that you think the information might incriminate you. However, you will still need to respond to the notice to advise that you will not provide the information or undertake the analysis and that you believe you have a reasonable excuse; being that the information or analysis may incriminate you.
We are required to allow you a reasonable period of time to comply with the notice. We will specify the due date, and we may allow an extension of time, determined by us, if you apply to us within that period.
Failure to comply with a notice without a reasonable excuse is an offence to which strict liability applies, and for which we may seek a civil penalty order. Under section 146 of the Agvet Code, you will be liable for an offence if you give false or misleading information.
The authority to issue a notice to give information and documents or arrange for analysis of substances is intended to assist our administration of, and enforcement of the Agvet Code. We will send you a cover letter explaining the need for the information, how to comply, how to seek an extension of time, reasonable excuses for not responding or not providing information, the implications of self-incrimination and how non-compliance will be treated.
We will ask only for information or documents or the performance of analysis that we reasonably consider that you can provide or undertake. Even if you do not have the information or documents or are unable to arrange the analysis requested, you must still respond to the notice within the timeframe. You will also need to advise us if you are not providing information because you wish to rely on the reasonable excuse that the information may incriminate you.
3. What can the notice require?
The notice can require you to provide information and/or documents about an active constituent or chemical product or to arrange for analysis of an active constituent or chemical product. To comply with the notice you must do the things asked within the specified timeframe. If we are asking you for documents or things, as defined in the Agvet Code, you must provide the originals. You may provide a copy if you have one and the originals are not in your possession. If we are asking you to arrange for analysis we specify the manner in which sampling and analysis is to occur and that it is to be undertaken by an approved analyst at a prescribed laboratory. We may also require that you enable an APVMA inspector to supervise the taking of any samples.
4. Who will bear the cost?
The notice will generally require you to meet any costs entailed in providing the information, documents or arranging and performing the analysis.
5. What timeframes apply?
You must do the things asked in the notice within the timeframe specified by the notice.
We can grant an extension of time for your response if you request one in writing. It is up to us whether we grant or refuse an extension. If we grant further time, you must comply with the new timeframe.
6. Can the notice be withdrawn?
We can withdraw a notice at our discretion. We may decide to do so if we receive additional information that resolves our concerns.
7. What happens if the notice is complied with?
If you comply with the notice and (as needed) submit the required information and documents, and/or arrange for the analysis we will acknowledge receipt of the information. We can keep the materials you have provided until we no longer have a need for them. We can also make copies of, or take extracts from, any documents provided. We can use the information for the purposes of administering or enforcing the Agvet Code, including investigating offences under the Agvet Code. When we no longer need the documents or things we will arrange to return them to you. While we have your documents or things we can make arrangements for you to inspect or view them if you need to.
We can publish information about the results of any section 99 notices in a manner that we think is appropriate.
8. What happens if the section 99 notice is not complied with?
If you fail to respond to a section 99 notice within the specified time, and you do not have a reasonable excuse, we may commence court proceedings to seek a civil penalty order if we consider it to be in the public interest to do so.
If you reasonably believe that the information or documents we ask for would incriminate you, you may refuse or fail to provide the material on those grounds. Section 146A of the Agvet Code provides that self-incrimination is a reasonable excuse to refuse or fail to give information. In those circumstances, you must still respond to the notice, advising that you do not intend to provide the material on that basis.
9. What if a person responds to a section 99 notice and provides false or misleading information?
It is an offence under section 146 of the Agvet Code to provide false or misleading information to the APVMA in connection to our consideration of information or performance of any of our functions. If we receive false or misleading information in response to a request for information, we may seek criminal prosecution.
10. Publication or disclosure
We may publicise the details of notices issued and information received under section 99 of the Agvet Code in any manner that we believe is reasonable. We may also disclose the information we obtain for the purposes of law enforcement. However, we would not disclose details that represent confidential commercial information or private information. A court is able to compel us to disclose the information we hold.
The APVMA may also publish statistics about notices issued under section 99 of the Agvet Code.