Evaluation of whether to make recommendation for variation of a section 26BB determination
26BE Evaluation of whether to make recommendation for variation of a section 26BB determination
Decision by Secretary whether to make recommendation
If:
an application is made under subsection 26BD(1) for a recommendation by the Secretary that the Minister vary a section 26BB determination; and
the application has passed preliminary assessment; and
any applicable prescribed evaluation fee has been paid; and
if further information is required to be given under subsection (3A) within a specified period—the information is given within that period;
the Secretary must carry out an evaluation of whether to make the recommendation.
The Secretary may, by written notice given to a person who has made an application under subsection 26BD(1), require the person to:
give the Secretary such further information in connection with the application as is specified in the notice; and
do so within such reasonable period as is specified in the notice.
After carrying out the evaluation, the Secretary must:
make the recommendation; or
refuse to make the recommendation.
In deciding whether to make the recommendation, the Secretary must have regard to:
the quality and safety of the ingredients concerned; and
such other matters (if any) as the Secretary considers relevant.
If the Secretary refuses to make the recommendation, the Secretary must:
notify the applicant in writing of his or her decision; and
state in the notice the reasons for the decision.
Partial refund of evaluation fee in certain circumstances
If:
an evaluation fee is prescribed for the purposes of paragraph (3)(b); and
regulations made for the purposes of paragraph 63(2)(daaa) prescribe a period within which a decision under paragraph (4)(a) or (b) must be made; and
the Secretary makes a decision under paragraph (4)(a) or (b) in relation to an application under subsection 26BD(1), but not within that period;
then 25% of the evaluation fee must be refunded to the applicant.
Deemed refusal of applications in certain circumstances
If:
regulations made for the purposes of paragraph 63(2)(daaa) prescribe a period within which a decision under paragraph (4)(a) or (b) must be made; and
at the end of that period, the Secretary has not made a decision under paragraph (4)(a) or (b) in relation to an application under subsection 26BD(1);
the applicant may give the Secretary written notice that the applicant wishes to treat the application as having been refused.
A notice under subsection (5C) may be given at any time before a decision under paragraph (4)(a) or (b) in relation to the application is made.
If a notice has been given under subsection (5C), this Act (except subsection 60(5)) has effect as if:
the Secretary had decided not to make a recommendation under this section; and
the Minister had made a decision under subsection 60(3) confirming the decision of the Secretary; and
the Minister’s decision had been made on the day on which notice was given to the Secretary under subsection (5C).
Minister may vary determination
If the Secretary makes a recommendation under paragraph (4)(a), the Minister must:
by legislative instrument, vary the section 26BB determination; or
refuse to vary the section 26BB determination.
In making a decision under subsection (6), the Minister must have regard to:
the recommendation made under paragraph (4)(a); and
such other matters (if any) as the Minister considers relevant.
Information may be given electronically
A notice mentioned in subsection (3A) may require or permit information to be given in accordance with specified software requirements:
on a specified kind of data processing device; or
by way of a specified kind of electronic transmission.
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