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/232
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Cancellation or suspension of a permit for noncompliance or prior convictions
- 1. What is a permit and how is it suspended or cancelled?
- 2. Overview of the legislative provisions
- 3. Objective
- 4. What we consider when cancelling or suspending permits in response to noncompliance with a condition or prior convictions
- 5. Period of suspension
- 6. Can the notice of suspension or cancellation be withdrawn?
- 7. What happens if the suspension or cancellation notice is issued?
- 8. What happens if the notice is not complied with?
- 9. Publication or disclosure
- 10. Additional considerations
There a number of grounds on which the APVMA can suspend or cancel a permit – for example, if it appears to the APVMA that the permit holder has contravened a condition attached to the permit,
There a number of grounds on which the APVMA can cancel a permit and, generally speaking, these include the following:
- the holder has contravened a condition of the permit
- the holder has previously had a permit cancelled for providing false or misleading information
- has been convicted of an offence or ordered to pay a pecuniary penalty under agvet Agvet legislation or other legislation relating to chemical products
- has been convicted of fraud.
This page explains how suspensions and cancellations work and how they are enforced.
1. What is a permit and how is it suspended or cancelled?
The APVMA can issue permits under Part 7 of the Agvet Code to allow a range of activities involving chemical products and active constituents, including use that would otherwise be offences under agricultural and veterinary (Agvet) legislation or particular laws of the states and territories. A permit is given a unique number when it is issued and it may be issued subject to conditions.
Provisions of the Agvet Code empower the APVMA to suspend a permit where, for example, it appears to the APVMA that the permit holder has contravened a condition of the permit.
Provisions of the Agvet Code also empower the APVMA to cancel a permit where, for example, the APVMA is satisfied:
- that the permit holder has contravened a condition of the permit; and
- that the permit holder has, generally speaking, previously contravened Agvet legislation.
2. Overview of the legislative provisions
There are a number of grounds on which we may suspend a permit and some of these are listed in section 118. Section 118(1)(d) of the Agvet Code, for example, allows us to suspend a permit, by written notice to the permit holder, if it appears to us that the holder has contravened a condition of the permit.
There are a number of grounds on which we may cancel a permit and some of these are listed in section 119(4). The grounds on which may cancel a permit under section 119(4) include the following:
- we are satisfied that the holder has contravened a condition of the permit
- we are satisfied that the holder or one of a number of other people have, generally speaking
- been convicted of an offence against an Agvet law, another law relating to chemical products, or a law involving fraud or dishonesty
- been found by a court to have committed such an offence even though the court did not proceed to a conviction (see Crimes Act 1914, section 19B)
- been ordered to pay a pecuniary penalty for the contravention of an Agvet penalty provision, another law relating to chemical products, or a law involving fraud or dishonesty
- held a permit that was cancelled under the corresponding provision of the Code Act of another jurisdiction.
Where suspension takes place under section 118(1)(d) or certain other provisions, section 118(4) of the Agvet Code requires the suspension to be for a stated period.
Section 118(7) of the Agvet Code states that a notice of suspension of a permit must include the reasons for the suspension. Section 119(7) of the Agvet Code states that a notice of cancellation of a permit must include the reasons for the cancellation.
The APVMA has the power to revoke the suspension as per section 118(9) of the Agvet Code, or cancellation as per section 119(9) of the Agvet Code.
Jurisdictional coordinators are to be advised of the suspension or any subsequent revocation of the suspension within 14 days, as required by section 118(10) of the Agvet Code.
Coordinators are to be advised of the cancellation or any subsequent revocation of the cancellation within 14 days, as required by section 119(11) of the Agvet Code.
Section 117A of the Agvet Code requires a range of procedural fairness actions on the part of the APVMA when suspension or cancellation is first proposed, including:
- providing written notice of the proposed suspension/cancellation to the permit holder
- providing reasons for proposed suspension/cancellation to the permit holder
- inviting submissions from the permit holder.
The requirements in section 117A do not apply where the APVMA proposes to suspend or cancel a permit because it considers this necessary to prevent imminent risk to persons of death, serious injury or serious illness (see sections 117A(4) and 119A).
Internal review and subsequent Administrative Appeals Tribunal review is available for decisions relating to the suspension or cancellation of a permit under these provisions.
The provisions for suspensions or cancellations of permits ensure that activities enabled under permit are conducted in ways that support the objects of agvet legislation. Permits allow activities that would otherwise be offences, so permit holders must act strictly in accordance with their permit and its conditions so as not to commit an offence.
Our ability to suspend or cancel permits because of a permit holder’s prior convictions may make it more difficult for some persons to maintain their permit. This is consistent across most Australian regulators.
We have discretion in determining whether a permit should be cancelled, and we ensure that our use of these provisions is reasonable and in accordance with procedural fairness.
4. What we consider when cancelling or suspending permits in response to noncompliance with a condition or prior convictions
In considering whether it is necessary to cancel or suspend a permit in response to noncompliance with a condition, we take into account factors such as the following:
- a standard compliance assessment of the severity and risk of the noncompliance
- the nature of available evidence
- the type of condition that has been breached
- whether more than one condition has been breached
- the risk of harm (if any) to humans, animal health, the environment or trade that is intended to be mitigated by the condition
- the benefit that the holder has obtained through noncompliance with the condition
- any mitigating circumstances (or reasonable excuse) that might apply
- submissions provided by the permit holder.
In considering whether it is necessary to cancel or suspend a permit in response to prior convictions of the permit holder, we consider factors such as the following:
- the nature of the prior conviction
- when the prior conviction occurred (within a 10-year timeframe)
- whether there are multiple prior convictions
- the impact on people to whom the permit applies if the permit were cancelled and whether a suitable new permit holder can be identified
- submissions provided by the permit holder.
5. Period of suspension
Where a suspension relates to a breach of permit conditions, our general policy is to determine the period of suspension based on the time that the permit holder will reasonably require to demonstrate their return to compliance.
6. Can the notice of suspension or cancellation be withdrawn?
The APVMA can revoke a suspension by written notice to the permit holder. If we do so, we must advise the coordinator for the relevant jurisdiction within 14 days.
We can also revoke a cancellation. If we do so, we must advise the jurisdictional coordinator within 14 days.
7. What happens if the suspension or cancellation notice is issued?
After a suspension notice is issued, the permit is not in force for the suspension period. This means that the relevant offence provisions under Agvet legislation apply.
When a permit is cancelled, it ceases to have effect and the relevant offence provisions under Agvet legislation apply.
8. What happens if the notice is not complied with?
If the suspension or cancellation notices are not complied with, the matter will be treated as noncompliance with the relevant provisions of agvet legislation.
9. 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’s maintains a register on its website for publishing enforcement matters.
Suspension and cancellation notices issued by the APVMA are public and will be published on the APVMA’s register.
10. Additional considerations
Agvet legislation allows permits to be suspended or cancelled on a range of grounds and not all of these have been mentioned on this webpage. Additional relevant information may be found in guidelines developed for the cancellation and suspension of permits in relation to safety, efficacy or trade criteria where the use of an Agvet active constituent or product in accordance with the permit is inappropriate. Information about the APVMA’s response to the provision of false or misleading information also includes reference to permits.