Bills Digest no. 132 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Rob Dossor
Economics Section
23 June 2015
Contents
Purpose
of the Bills
Structure of the Bills
Background
Committee consideration
Financial implications
Statement of Compatibility with Human Rights
Position of major interest groups
Key issues and provisions
Date introduced: 3
June 2015
House: House of
Representatives
Portfolio: Agriculture
Commencement: Various
dates as set out in the body of this Bills Digest
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on the
Bills’ home pages for the Export
Charges (Collection) Bill 2015, the Export
Charges (Imposition—General) Bill 2015, the Export
Charges (Imposition—Customs) Bill 2015 and the Export
Charges (Imposition—Excise) Bill 2015, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The four Bills discussed in this Bills Digest form a
package that seeks to enable the making of regulations which charge a levy in
relation to matters connected with export services provided by the Department
of Agriculture (the Department).
The Export Charges (Collection) Bill 2015 (the Collection
Bill)[1]
provides for the collection of charges in relation to certain exported goods
and late payment fees. The export charges are imposed by the other Bills in the
legislative package, being:
- Export
Charges (Imposition—General) Bill 2015 (the General Bill)[2]
- Export
Charges (Imposition—Customs) Bill 2015 (the Customs Bill)[3]
and
- Export
Charges (Imposition—Excise) Bill 2015 (the Excise Bill).[4]
The Collection Bill contains four parts:
- Part
1 deals with preliminary matters
- Part
2 contains provisions relating to paying export charges
- Part
3 contains provisions relating to unpaid export charges and
- Part
4 deals with miscellaneous matters such as remitting or refunding export
charges.
The General Bill, the Customs Bill and the Excise Bill
each contain four parts:
- Part
1 deals with preliminary matters
- Part
2 includes provisions relating to charges for the export of regulated goods
- Part
3 includes provisions relating to charges for regulated matters relating to
the export of regulated goods and
- Part
4 provides for the making of regulations under each Bill (when enacted).
Current review
The Department is currently conducting a comprehensive
review of cost recovery fees and charges.[5]
The aim of the review, amongst other things, is to streamline existing
frameworks and update fees and charges to reflect the current business
operating model.[6]
The Department has sought to gauge
industry’s views by way of a series of discussion papers on various aspects of
the redesign. These canvas matters such as:
- the application of cost recovery levies and fees
- standard treatment of travel costs
- charging for out of hours service and
- annual indexation of fees and charges.[7]
According to the Department:
There are a number of processes that still need
to be completed to progress the redesign of cost recovery arrangements ... The
next round of consultation with [Industry Consultative Committees] ICCs will
occur in June–July 2015.
Draft Cost Recovery Implementation Statements
are planned to be released for broader public consultation in July–August 2015.
These will include the proposed fees and charges.[8]
Australia export inspection regime
This legislative package relates only to exports covered
under the Export Control Act 1982 and the Australian Meat and
Live-stock Industry Act 1997.[9]
These exports can be generally characterised as food or ‘agricultural products’
(including live animals, forestry and wood products).
Regulations made under the Export Control Act require
that if a good is a ‘prescribed good’ its export is prohibited unless specific
conditions and restrictions are complied with.[10]
Some prescribed goods include:
- dairy
- live
animals
- fish
- plants
and plant products
- grain
- meat
and meat products and
- fresh
fruit and vegetables.[11]
Most prescribed goods must undergo some form of inspection
to verify that they are safe and accurately described, and to insure that
foreign government requirements and Australia’s international obligations are
met.[12]
Fees are imposed for the performance of services such as inspections, issuing
of documents and auditing registered premises.[13]
There appears to be no mechanism presently available however
to enable the recovery of the costs associated with programme management and
administration, verification, risk and incident management activities.
This legislative package will permit the recovery of these
costs and enable the export services provided by the Department of Agriculture
(the Department) to become fully cost recoverable consistent with the Australian
Government Cost Recovery Guidelines.[14]
The Senate Standing Committee for the Selection of Bills
resolved not to refer the Bills in this legislative package to a committee.[15]
Senate Standing Committee for the
Scrutiny of Bills
The Standing Committee for the Scrutiny of Bills had no
comment on the General Bill, the Customs Bill or the Excise Bill, but has
sought information from the Minister on elements of the Collection
Bill–specifically the use of delegated legislation to set a late payment fee (clause
11) and the constraint on the ability to bring legal action against the
Commonwealth or one of its officers for actions undertaken in good faith (clause
20).[16]
The Parliamentary Joint Committee on Human Rights had no
comment on the package of Bills.[17]
The Explanatory Memorandum to the Collection Bill and the
Explanatory Memorandum to the General Bill, the Customs Bill and Excise Bills
indicate that the Bills will have no financial impacts on the Commonwealth
Government, industry or people who ‘export or deal with export regulated goods’.[18]
The Bills do not set the amounts of the charges but will enable charges to be
set in regulations which may impact all exporters of prescribed goods. This may
result in a financial impact on business.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bills’ compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government acknowledges that the Collection Bill may engage the following human
rights:
- Article
14(1) of the International Covenant on Civil and Political Rights (ICCPR)—right
to a fair hearing[19]
- Article
17 of the ICCPR—right to protection from arbitrary and unlawful interferences
with privacy and
- Article
6(1) of the International Covenant on Economic Social and Cultural Rights—right
to work.[20]
Nevertheless, the Government considers the relevant provisions
to be reasonable and necessary, and that the Collection Bill is compatible with
applicable human rights requirements.[21]
The Government considers that the General Bill, the
Customs Bill and the Excise Bill do not engage any of the applicable rights or
freedoms.[22]
At the time of writing, it appears that exporters had not
made any public comment in relation to the contents or effect of the Bills in
the legislative package.
The Collection Bill commences on the day after Royal Assent.
It provides for the collection of charges in relation to exports
and late payment fees.
Paying export charges
Clause 8 provides that regulations may prescribe
the time when an export charge is due and payable and/or prescribe
rules relating to the liability of an exporter’s agent to pay export charges on
the exporter’s behalf, and the recovery of the charges by the agent from the
exporter. Clause 6 of the Collection Bill defines the term export charge
as a charge imposed under:
-
section 7 or 11 of the Export Charges
(Imposition—Customs) Act 2015
-
section 7 or 11 of the Export Charges (Imposition—Excise) Act 2015 or
-
section 7 or 11 of the Export Charges (Imposition—General) Act
2015.
Clause 9 specifies that the Commonwealth is
notionally liable to pay the export charge, including late payment fees, for
activities performed in relation to exports under the Export Charges
(Collection) Act 2015 (subclause 9(1)). It also provides
that the Minister for Finance may give written directions to collect charges
from agencies and other Commonwealth bodies (subclause 9(2)). Subclause
9(3) provides that any direction made under subclause 9(2) must be
complied with, despite any other Commonwealth law. Subclause 9(4) establishes
that any direction made under subclause 9(2) is not a legislative
instrument. This means that any direction under subclause 9(2) is not
subject to disallowance under section 42 of the Legislative Instruments Act
2003.[23]
According to the Explanatory Memorandum for the Collection
Bill:
The intent of this clause is that, under the Minister for
Finance’s direction, the department will have the legal authority to collect
charges from agencies and other Commonwealth bodies for export-related activities
under the Export Control Act and [Australian Meat and Live-stock
Industry Act], and those bodies will have the legal authority to make
payments to the department for such activities.[24]
Unpaid export charges
Clause 11 establishes that if regulations prescribe
the time when an export charge is due and payable, they may also set a late
payment fee (subclause 11(1)). The late payment fee may
relate to each day, or part of a day that the charge remains unpaid after
becoming due and payable (subclause 11(2)). The regulation may also
prescribe who is liable to pay the late payment fee (subclause 11(3)).
Clause 12 applies to a debtor
who is liable to pay an export charge or late payment
fee that is due and payable.
Under subclause 12(2) the Secretary may, by written
notice to a debtor, suspend an export control instrument
of the debtor until the export charge or late payment fee is paid—or simply
revoke the export control instrument. The term export
control instrument of a person is defined in clause 6 to mean:
- a
licence, permission, permit, consent or approval granted to the person under:
- regulations
made under the Export Control Act
- orders
made under such regulations or
- a
certificate or notice issued or given to the person under:
- regulations
made under the Export Control Act
- orders
made under such regulations
- a
registration or accreditation held by the person under:
- regulations
made under the Export Control Act
- orders
made under such regulations or
- a
licence granted to the person under section 10 of the Australian Meat and
Live-stock Industry Act 1997[25]
or
- an
approval granted to the person under:
- Part
2 of the Australian Meat and Live-stock Industry Act or
-
regulations
or orders made under that Act for the purposes of that Part or
- any
other thing granted to, issued to or held by the person under such an Act,
regulations or orders that:
- relate
to the export of goods and
- Is
prescribed by the regulations.
The notice must include reasons for the decision and
outline the debtor’s right to have the decision reviewed. However, a failure to
comply with this requirement does not affect the validity of the decision (subclause 12(3)).[26]
Subclause 12(5) empowers the Secretary to direct a
person not to take certain actions involved with obtaining an export
control instrument until an export charge or late payment fee is
paid.
A direction made under subclause 12(5) is not
reviewable on its merits (judicial review is available). According to the
Explanatory Memorandum:
In addition to encouraging compliance with the Bill, this
clause is intended to prevent the department from directing resources toward
providing activities and incurring costs where a person has not paid the
required export charge or late fee. The inclusion of a review mechanism would
unnecessarily add to the administrative burden of administering the Bill and
would be contrary to the purpose of this clause.[27]
Clause 13 provides that an unpaid export charge or
a late payment fee may be recovered as a debt due to the Commonwealth by action
in a court of competent jurisdiction.
Miscellaneous
Clause 15 allows the Secretary, on his or her own
initiative or on written application by a person, to remit or refund the whole
or part of an export charge or late payment fee that is payable or has been
paid to the Commonwealth.
Clause 16 provides that, if the Secretary has
reasonable grounds to believe that a person has information or documents
relevant to the operation of the Export Charges (Collection) Act or an
export charge, he, or she, may by written notice, require that person to
provide the information or documents which are specified in the notice. The
notice must specify the period within which the information or documents are to
be provided, being not less than 14 days after the notice is given (subclause
16(2)). Under subclause 16(3), a person commits an offence if he, or
she, is given a notice under the clause and fails to comply with the notice.
The penalty for the offence is 30 penalty units.[28]
Clause 17 provides for the internal review of a
decision to suspend or revoke an export control instrument which has been made
by a delegate of the Secretary. In that case, the affected person may apply in
writing to the Secretary for review of the original decision. Subclause
17(2) sets out the formal requirements of the application. Once the
application is received, the Secretary must review the decision personally, or
cause the decision to be reviewed by another person who was not involved in the
original decision-making process and is senior to the original decision maker (subclause
17(3)).
The internal reviewer may affirm, vary or set aside the
original decision. Where the original decision is set aside, the internal
reviewer may make such other decision as he or she thinks appropriate (subclause
17(4)). The decision of the internal reviewer is called the decision
on review. Having made the decision on review the internal reviewer
must give the applicant a written notice setting out the terms of the decision
and the reasons for it. In addition, the internal reviewer must inform the
applicant of his, or her, right to have the decision reviewed by the
Administrative Appeals Tribunal (AAT) (subclause 17(6)). If the
applicant has not received notice of the decision on review
within 90 days after the application for internal review was made, then the
original decision is deemed to have been affirmed (subclause 17(7)). The
Secretary may require a person who has applied for review to give further
information about the application and may refuse to consider the application
until the information is received (clause 18).
Clause 19 provides that a person may make an
application to the AAT for a review of the following decisions:
- a
decision to suspend or revoke an export control instrument made personally
by the Secretary under subclause 12(2) and
- a
decision of an internal reviewer made under clause 17 about a decision
to suspend or revoke an export control instrument.
Subsection 27(1) of the Administrative Appeals Tribunal
Act 1975 (AAT Act) states that ‘an application may be made by or on
behalf of any person or persons (including the Commonwealth or an authority of
the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose
interests are affected by the decision’.[29]
However, subclauses 19(2) and (3) of the Bill operate so that an
application to the AAT for a review of the decisions set out above may only be
made by, or on behalf of, a person whose export control instrument was
suspended or revoked. This is an exception to the general rule in subsection
27(1) of the AAT Act.
Clause 20 provides that the Commonwealth or a protected
person will have protection from civil proceedings for anything done or
omitted to be done in good faith in the exercise, or purported exercise of a
power conferred by the Export Charges (Collection) Act (when enacted).
The term protected person is defined in clause 6 of the
Bill as being any of the following:
- the
Secretary
- a
person who has been given a direction not to take certain actions until an export
charge or late payment fee is paid (under subclause 12(5))
- a
person who is given information or documents in accordance with a notice given
under subclause 16(1) or
- a
person who is delegated by the Secretary to exercise the powers and functions
of the Secretary under clause 21.
The protection extends to a person providing assistance,
information or documents to a protected person as a result of a
request, direction or other requirement made by the protected person (paragraph
20(b)).
The Governor-General may make regulations prescribing
matters that are required or permitted to be prescribed or are necessary and
convenient to be prescribed for carrying out or giving effect to the Export Charges
(Collection) Act (when enacted) (clause 22).
Sections 1 and 2 of the General Bill commence
on the day of Royal Assent. The remaining sections of the General Bill commence
on the later of either the day after Royal Assent or immediately after the
commencement of the Collection Bill. However if the Export Charges (Collection)
Act is not enacted, or does not commence, the provisions of the General
Bill will not commence.
Charges in relation to regulated
goods
Subclause 7(1) provides that the regulations may
prescribe charges in relation to the export of regulated goods. Subclause
7(2) provides that these charges are imposed as taxes.
The term regulated good is defined in clause 5
as a good that is prescribed by regulation. The charges will ‘reflect the costs
of corporate activities and supporting export activities provided by the
Commonwealth such as, but not limited to, programme management and
administration, verification, risk and incident management activities.’[30]
Two or more charges may be made in relation to the same regulated
good and a single charge may be made in relation to two or more kinds of
regulated goods (subclause 7(3)).
Subclause 8(1) allows the regulations to prescribe a
charge for the purposes of subclause 7(1) by specifying an amount as the
charge, or by specifying a method for calculating the amount of the charge. Subclause
8(2) provides that before a regulation is made to impose a charge (under
subclause 7(1)) the Agriculture Minister must be satisfied that the amount
is set at a level that will recover only the Commonwealth’s likely costs in connection
with the export of the regulated goods.
Clause 9 of the General Bill provides that the
regulations may prescribe one or more persons who are liable to pay a specified
charge under subclause 7(1). In addition, clause 10 permits the regulations
to provide for exemptions from a charge under subclause 7(1).
Charges in relation to regulated
matters relating to regulated goods
Clause 11 is similarly structured to clause
7. It provides that regulations may prescribe charges which are imposed as taxes
(subclause 11(2)) in relation to a regulated matter relating to the
export of regulated goods. The term regulated matter is defined in
clause 5 as a matter that is prescribed by regulations to be regulated
matter. Like charges imposed under clause 7, the charges will ‘reflect
the costs of corporate activities and supporting export activities provided by
the department such as programme management and administration, verification,
risk and incident management activities.’[31]
Clauses 12 to 14 are similarly structured to clauses
8 to 10. They allow the regulations to prescribe a charge or specify a method
for calculating a charge (subclause 12(1)); require that the Mister must
be satisfied that the amount of the charge is set at a level that will recover
only the Commonwealth’s likely costs in connection with the regulated matter (subclause
12(2)); provide that the regulations may prescribe one or more persons who
are required to pay a specified charge under subclause 11(1) (clause 13)
and permit regulations to provide for exemptions from a charge under subclause
11(1) (clause 14).
Clause 15 provides for regulations prescribing
matters that are required or permitted to be prescribed, or are necessary or convenient
to be prescribed for carrying out or giving effect to the Export Charges (Imposition—General)
Act (when enacted).
Sections 1 and 2 of both the Customs Bill and
the Excise Bill commence on the day of Royal Assent. The remaining sections of
both the Customs Bill and the Excise Bill commence on the later of the day
after Royal Assent or immediately after the commencement of the Collection
Bill. However if the Export Charges (Collection) Act 2015 is not
enacted, or does not commence, the provisions of the Customs Bill and the Excise
Bill will not commence.
The Customs Bill and the Excise Bill contain provisions in
equivalent terms to those in the General Bill, except for subclause 7(4)
and subclause 11(4) which specify that a charge is imposed only so far
as the charge is a duty of customs (for the Customs Bill) and a duty of excise (for
the Excise Bill). The Explanatory Memorandum notes that, consistent with the Constitution,
charges imposed under the Customs Bill are valid insofar as they impose duties
of customs, while the charges imposed under the Excise Bill are only valid
insofar as they impose duties of excises.[32]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Parliament
of Australia, ‘Export
Charges (Collection) Bill 2015 homepage’, Australian Parliament website,
accessed 15 June 2015.
[2]. Parliament
of Australia, ‘Export
Charges (Imposition—General) Bill 2015 homepage’, Australian Parliament
website, accessed 15 June 2015.
[3]. Parliament
of Australia, ‘Export
Charges (Imposition—Customs) Bill 2015 homepage’, Australian Parliament
website, accessed 15 June 2015.
[4]. Parliament
of Australia, ‘Export
Charges (Imposition—Excise) Bill 2015 homepage’, Australian Parliament
website, accessed 15 June 2015.
[5]. Department
of Agriculture (DA), ‘Cost
recovery reviews: comprehensive review of Agriculture’s fees and charges’,
DA website, accessed
4 June 2015.
[6]. Ibid.
[7]. Department
of Agriculture (DA), ‘Redesign
of Agriculture’s cost recovery arrangements’, DA website, accessed 11 June
2015.
[8]. Ibid.
[9]. Export Control Act 1982; Australian
Meat and Live-stock Industry Act 1997, accessed 16 June 2015.
[10]. Section
7A, Export Control Act 1982.
[11]. Department
of Agriculture (DA), ‘Getting your
product overseas’, DA website, accessed 15 June 2015.
[12]. Ibid.
[13]. Export Control (Fees)
Orders 2001, accessed 15 June 2015.
[14]. B
Joyce (Minister for Agriculture), Funding
strong biosecurity and export certification for the future, media
release, 3 June 2015, accessed
16 June 2015 and Department of Finance, Australian
Government Cost Recovery Guidelines, third edition, July 2014, accessed
11 June 2015.
[15]. Senate
Standing Committee for Selection of Bills, Report
No. 6 of 2015, The Senate, Canberra, 2015, accessed 17 June 2015.
[16]. Senate
Standing Committee for the Scrutiny of Bills, Alert
Digest No. 6 of 2015, The Senate, Canberra, 17 June 2015, pp. 21–25,
accessed 23 June 2015.
[17]. Parliamentary
Joint Committee on Human Rights, Twenty-third
report of the 44th Parliament, The Senate, Canberra, 18 June 2015, pp.
1–2, accessed 23 June 2015.
[18]. Explanatory
Memorandum, Export
Charges (Collection) Bill 2015, p. 2; Explanatory Memorandum, Export
Charges (Imposition–General) Bill 2015 [and] Export Charges
(Imposition–Customs) Bill 2015 [and] Export Charges (Imposition–Excise) Bill
2015, p. 3, accessed 17 June 2015.
[19]. International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994), accessed
23 June 2015.
[20]. International
Covenant on Economic, Social and Cultural Rights, done in New York on
16 December 1966, [1976] ATS 5 (entered into force for Australia on
10 March 1976), accessed 23 June 2015.
[21]. The
Statement of Compatibility with Human Rights can be found at page 7 of the
Explanatory Memorandum to the Export
Charges (Collection) Bill 2015.
[22]. The
Statements of Compatibility with Human Rights can be found on pages 4, 6 and 8
of the Explanatory Memorandum for the Export
Charges (Imposition–General) Bill 2015 [and] Export Charges
(Imposition–Customs) Bill 2015 [and] Export Charges (Imposition–Excise) Bill
2015.
[23]. Legislative
Instruments Act 2003, accessed 23 June 2015.
[24]. Explanatory
Memorandum, Export
Charges (Collection) Bill 2015, op. cit., p. 9.
[25]. Australian Meat and
Live-stock Industry Act 1997, accessed 15 June 2015.
[26]. However,
merits review of a decision under subclause 12(2) is provided for by clauses 17
and 19 of the Bill. Judicial review is also available.
[27]. Explanatory
Memorandum, Export
Charges (Collection) Bill 2015, op. cit., p. 11.
[28]. Section
4AA of the Crimes Act
1914 provides that a penalty unit is equivalent to $170. This means
that the maximum penalty payable is $5,100.
[29]. Administrative Appeals
Tribunal Act 1975, accessed 15 June 2015.
[30]. Explanatory
Memorandum, Export
Charges (Imposition–General) Bill 2015 [and] Export Charges
(Imposition–Customs) Bill 2015 [and] Export Charges (Imposition–Excise) Bill
2015, op. cit., p. 11.
[31]. Ibid.,
p. 12.
[32]. Ibid.,
p. 15 and p. 19.
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