This content is current only at the time of printing. This document was printed on 20 February 2017. A current copy is located at http://apvma.gov.au/node/178
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- 1. What is an enforceable undertaking?
- 2. Overview of the legislative provisions
- 3. Objective
- 4. Duration
- 5. Who can offer an enforceable undertaking?
- 6. What happens when an enforceable undertaking is accepted?
- 7. Changing an enforceable undertaking
- 8. What happens when the undertaking is complete?
- 9. Monitoring and compliance
- 10. Publication or disclosure
- 11. Additional considerations
When the APVMA believes that a person or company has contravened certain provisions of the Agvet legislation, it can use enforceable undertakings rather than taking the matter to court. It is up to APVMA whether we accept the undertaking.
1. What is an enforceable undertaking?
An enforceable undertaking is a binding written agreement between a person and the APVMA. By offering and entering into the undertaking, you are saying that you will do or not do specified things to comply with the Agvet legislation.
This is an alternative to prosecution and provides a transparent and efficient resolution of alleged or actual noncompliance. We may seek the enforcement of the terms of an undertaking in a court.
2. Overview of the legislative provisions
Under section 69EL of the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Admin Act) and section 145E of the Agvet Code, we can accept any of the following:
- your undertaking that you will take specified action in order to comply
- your undertaking that you will refrain from taking specified action
- your undertaking that you will take specified action to ensure that you do not commit an offence against the Agvet Code, Admin Act or Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 (Collection Act) or contravene a civil penalty provision of the Admin Act, Collection Act or the Agvet Code in the future.
If we consider that you have breached the undertaking, we may apply to a court under section 69ELA(2) of the Admin Act or section 145EA(2) of the Agvet Code for:
- an order directing you to comply with the undertaking
- an order directing you to pay to the Commonwealth an amount up to the amount of any financial benefit that you have obtained directly or indirectly and that is reasonably attributable to the breach
- any order that the court considers appropriate directing you to compensate any other person who has suffered loss or damage as a result of the breach
- any other order that the court considers appropriate.
Enforceable undertakings are intended to provide efficient and effective resolution of noncompliance with the Admin Act, Agvet Code or Collection Act as an alternative to costly court proceedings. The development of an enforceable undertaking replaces the punitive outcome of court proceedings with positive actions that are intended to deliver sustained compliance.
In forming a view about the duration of an undertaking, we take into account the relevant circumstances of the particular case and the nature of the action involved. Where the action involves planning, commissioning and reporting of activities, the timeframe should be long enough for the effectiveness of the action to be assessed. Where the action is in lieu of a penalty, it is reasonable to ask for the action to be commenced or undertaken within the time in which the penalty would be payable (although there might be circumstances warranting a longer period).
5. Who can offer an enforceable undertaking?
Undertakings are given by the entity which the APVMA considers has committed or, without taking the offered action, would commit the noncompliance. That entity might be an individual, a corporation, or another type of legal person. It must be a legal entity against which enforcement (court proceedings) can be taken.
In some situations, a person who is secondarily involved in a contravention (as opposed to being the primary contravener) is nonetheless to be treated as having committed the contravention. In such cases, we can accept an enforceable undertaking from that person in addition to an undertaking from the primary contravener, if that acceptance is otherwise appropriate. An enforceable undertaking cannot bind a third party.
6. What happens when an enforceable undertaking is accepted?
If we accept an enforceable undertaking, we will cease any relevant investigation upon which the development of the undertaking was based.
7. Changing an enforceable undertaking
Enforceable undertakings may be varied, withdrawn or cancelled.
You may vary the undertaking at any time, but only with our written consent. You may seek our consent to a variation by making a request to us in writing.
We will only consider variations in circumstances where we consider that:
- the variation does not alter the spirit of the original enforceable undertaking
- there has been a material change in circumstances
- compliance with the original undertaking has been found to be impractical.
You may withdraw the undertaking at any time under section 69EL(3) of the Admin Act or section 145E(3) of the Agvet Code, but only with our written consent. A request to withdraw must be made in writing to us.
The APVMA is only likely to agree to withdrawal in exceptional circumstances. For example if the holder of a registration or approval for a chemical product or active constituent or manufacturing licence requests the APVMA to cancel the registration or approval or licence, and it is consequently no longer able to comply with the undertaking. In such circumstances the APVMA may agree that it would not be reasonable to maintain the undertaking. If we agree to the withdrawal, you will no longer be bound by the agreement.
We may, by written notice to you, cancel the undertaking under section 69EL(5) of the Admin Act or section 145E(5) of the Agvet Code.
8. What happens when the undertaking is complete?
When we are satisfied that all the elements of the enforceable undertaking are complete, we will send you a letter advising that the undertaking has been discharged.
9. Monitoring and compliance
We monitor the implementation of enforceable undertakings.
If the terms of the undertaking are not complied with, we will seek a court order to enforce compliance.
10. Publication or disclosure
In accordance with the principle of transparency outlined in the APVMA’s Compliance and Enforcement Policy, every enforcement matter that is dealt with through litigation or formal resolution is made public.
In accordance with this principle, the APVMA maintains a register on its website where we publish enforcement outcomes. We are required to publish enforceable undertakings under section 69EL(6) of the Admin Act and section 145E(6) of the Agvet Code. However, we will not publish any part of the undertaking that we are satisfied:
- is confidential commercial information
- is personal information (within the meaning of the Privacy Act 1988)
- should not be disclosed because it would not be in the public interest to do so.
Subject to the same considerations, we may also publish any variation, withdrawal from, cancellation of or completion of an enforceable undertaking.
The APVMA considers that publishing information about the enforceable undertakings provides for a broader educative and deterrent effect.
11. Additional considerations
We have established an enforcement committee to provide oversight and additional governance of our use of our enforcement powers and tools. This is not a requirement of legislation, and the committee plays only an advisory role. The committee has oversight of the development of enforceable undertakings.