Bills Digest no. 128 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
22 June 2015
Contents
Purpose
of the Bills
Structure of the Bills
Background
Committee consideration
Statement of Compatibility with Human Rights
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
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 Imported
Food Charges (Collection) Bill 2015, the Imported
Food Charges (Imposition—General) Bill 2015, the Imported
Food Charges (Imposition—Customs) Bill 2015 and the Imported
Food 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 the administration of the Imported Food
Control Act 1992.[1]
The Imported Food Charges (Collection) Bill 2015 (the
Collection Bill)[2]
provides for the collection of charges in relation to imported food and late
payment fees. The imported food charges are imposed by the other Bills in the
legislative package, being:
- Imported
Food Charges (Imposition—General) Bill 2015 (the General Bill)[3]
- Imported
Food Charges (Imposition—Customs) Bill 2015 (the Customs Bill)[4]
and
- Imported
Food Charges (Imposition—Excise) Bill 2015 (the Excise Bill).[5]
The Collection Bill contains four parts:
- Part
1 deals with preliminary matters
- Part
2 contains provisions relating to paying imported food charges
- Part
3 contains provisions relating to unpaid imported food charges and
- Part
4 deals with miscellaneous matters such as remitting and refunding imported
food charges.
The General Bill, the Customs Bill and the Excise Bill each
contain three parts:
- Part
1 deals with preliminary matters
- Part
2 includes provisions relating to charges and
- Part
3 deals with the making of regulations necessary or required by the Bills.
Current review
The Department of Agriculture is currently conducting a
comprehensive review of cost recovery fees and charges.[6]
The aim of the review is to, amongst other things, streamline existing
frameworks and update fees and charges to reflect the current business
operating model.[7]
The Department of Agriculture 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.[8]
According to the Department of Agriculture:
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.[9]
A risk-based approach
Over recent years Australia’s biosecurity and quarantine processes
have moved towards a risk based approach.[10]
A risk based approach can be broadly defined by a ‘collection of strategies which,
at the very least, involve the targeting of enforcement resources on the basis
of assessment of the risks that a regulated person or firm poses to the
regulator’s objectives’.[11]
This approach assesses the need to inspect imported food consignments depending
on the potential risk they pose and the likelihood of an adverse event occurring.
All imports of food into Australia must comply with
quarantine conditions.[12]
Imported food must also meet established food safety standards.[13]
The Department of Agriculture inspects food imports through the imported food
inspection scheme in a risk based manner. The legislative basis for the
imported food inspection scheme (the scheme) is contained in the Imported Food
Control Regulations 1993.[14]
Under the scheme at least five per cent of consignments of imported food are randomly
inspected.[15]
Imported food is classified as either ‘surveillance’ or ‘risk food’.[16]
‘Risk’ food is food that has the potential to pose a high or medium risk to
public health.[17]
‘Surveillance’ food is food that is not categorised as ‘risk food’.[18]
If imported food is classed as ‘risk food’, either:
- each
consignment from a particular source is inspected or
- 25
per cent of consignments from a particular source are randomly inspected or
- five
per cent of consignments from a particular source are randomly inspected.[19]
The Imported Food Control Act provides that an
amount is payable for a chargeable service before the service is rendered or at
the time the service is rendered.[20]
Essentially then, although the community and food
importers as a whole benefit from the inspection of imported food to maintain
food safety standards, only those who are importing food which is subject to an
inspection are required to pay.
These Bills will allow the department to recover
non-specific costs associated with the scheme, such as intelligence,
surveillance and the development of audit and compliance standards for third
party arrangements.
The package of Bills provides a legislative basis for the
cost recovery of services that align Australia’s system for the management of
imported food with an efficient and effective cost recovery model consistent
with the Australian Government Cost Recovery Guidelines.[21]
Senate Standing Committee for the Selection
of Bills
The Standing Committee for the Selection of Bills decided
not to refer the Bills in this legislative package to Committee for inquiry and
report.[22]
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).
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no comment
on the package of Bills.[23]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government acknowledged 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[24]
- 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.[25]
Nevertheless, the Government considers that the relevant
provisions are reasonable and necessary and that the Collection Bill is
compatible.[26]
The Government considers that the General Bill, the
Customs Bill and the Excise Bill do not engage any of the applicable rights or
freedoms.[27]
The package of Bills does not appear to have raised
concerns or commentary from non-government parties, as of the time of writing.
At the time of writing, it appears food importers had not
made any public comment in relation to the contents or effect of the Bills in
the legislative package.
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.[28]
The Bills do not set the amounts of the charges but will enable charges to be
set in regulations which may impact all food importers, not just those
inspected. This may result in a financial impact on business.
The Collection Bill
The Collection Bill commences on the day after Royal Assent.
It provides for the collection of charges in relation to
imported food and late payment fees.
Paying imported food charges
Clause 8 provides that regulations
may prescribe the time when an imported food charge is due and payable
and/or prescribe rules relating to the payment of the charges by an importer’s
agent and the recovery of the charges by the agent from the importer. Clause
6 of the Collection Bill defines the term imported food charge
as a charge imposed under:
-
section 6 of the Imported Food Charges (Imposition—Customs)
Act 2015
-
section 6 of the Imported Food Charges (Imposition—Excise) Act 2015 or
-
section 6 of the Imported Food Charges (Imposition—General)
Act 2015.
Clause 9 specifies that the Commonwealth is
notionally liable to pay the imported food charge, including late payment fees,
for activities performed in relation to imported food under the Imported
Food Control Act (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.[29]
According to the Explanatory Memorandum for the Collection
Bill:
The intent for 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 activities performed in
relation to imported food under the Imported Food Control Act, and those
bodies will have the legal authority to make payments to the department for
such activities.[30]
Unpaid imported food charges
Clause 11 establishes that if regulations which prescribe
the time when an imported food 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, when the charge remains unpaid after
becoming due (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 imported food 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 imported food control instrument of
the debtor until the imported food charge or late payment fee is paid—or simply
revoke the imported food control instrument. The term imported
food control instrument of a person means:
-
a food control certificate given to the person
-
an approval under subsection 19(1A) of the Imported Food
Control Act of an overseas food processing operation conducted by the
person
-
a determination under subsection 19(2) of the Imported Food Control
Act that relates to an overseas food processing operation conducted by a
person
-
a compliance agreement to which the person is a party or
-
an approval (however described) given to the person under the Imported
Food Control Act that is prescribed by the regulations.
The notice must include reasons for the decision and
outline the debtor’s right to have the decision reviewed (subclause 12(3)).
Subclause 12(5) empowers the Secretary to direct a
person not to take certain actions until an imported food charge or late
payment fee is paid. These are:
- give
a food control certificate to the debtor
- issue
an imported food inspection advice to the debtor
- approve
under subsection 19(1A) of the Imported Food Control Act an overseas
food processing operation which is conducted by the debtor
- make
a determination under subsection 19(2) of the Imported Food Control Act that
relates to an overseas food processing operation conducted by the debtor
- enter
into a compliance agreement with the debtor and
- carry
out specified activities, or specified kinds of activities, in relation to the
debtor under the Imported Food Control Act.
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 imported food 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.[31]
Clause 13 provides that an unpaid imported food
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 imported food charge or late payment fee that is payable or has
been paid.
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 Imported Food Control Act or an
imported food 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 this clause and fails to comply with the notice.
The penalty for the offence is 30 penalty units.[32]
Clause 17 provides for the internal review of a decision
to suspend or revoke an imported food 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 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 imported food 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 imported food 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’.[33]
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 imported food 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 Imported Food 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 imported
food 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 carry out or give effect to the Imported Food Charges
(Collection) Act (when enacted) (clause 22).
The General Bill
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 Imported Food Charges
(Collection) Act 2015 is not enacted, or does not commence, the provisions
of the General Bill will not commence.
Charges
Clause 6 provides that regulations may prescribe charges
which are imposed as taxes (subclause 6(2)), in relation to prescribed
matters connected with the administration of the Imported Food Control Act in
order to ‘reflect the costs of corporate activities and supporting imported
food activities provided by the Department such as intelligence, audit and
compliance standards for third party arrangements’.[34]
Two or more charges may be made in relation to the same prescribed
matter and a single charge may be made in relation to two or more matters (subclause
6(3)). Subclause 6(4) provides that a charge is only imposed so far
as it is neither a duty of customs nor a duty of excise. The Explanatory
Memorandum states that the levy ‘will be used to recover costs of activities provided
to a group of importers’.[35]
Subclause 7(1) allows the regulations to prescribe a
charge by specifying an amount as the charge or by specifying a method for
calculating the amount of the charge. Subclause 7(2) specifies that
before a regulation is made to impose a charge (under clause 6) the Agriculture
Minister must be satisfied that the amount is set at a level that will recover
only the likely costs in connection with the matter.
Clause 8 of the General Bill provides that the
regulations may prescribe one or more persons who are liable to pay a specified
charge. In addition, clause 9 permits regulations to provide for
exemptions from a charge.
Clause 10 empowers the Governor-General to make
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 Imported Food Charges (Imposition—General) Act (when
enacted).
The Excise Bill and the Customs
Bill
Sections 1 and 2 of both the Excise Bill and the
Customs Bill commence on the day of Royal Assent. The remaining sections of
both the Excise Bill and the Customs Bill commence on the later of the day
after Royal Assent or immediately after the commencement of the Collection
Bill. However if the Imported Food Charges (Collection) Act 2015 is not
enacted, or does not commence, the provisions of the Excise Bill and the
Customs Bill will not commence.
The Excise Bill and the Customs Bill contain provisions that
are in equivalent terms to those in the General Bill, except for subclause
6(4) which specifies that a charge is imposed only so far as a duty of
excise (for the Excise Bill) and as a duty of customs (for the Customs Bill). According
to the Explanatory Memorandum individual matters of taxation are required to be
included in separate pieces of legislation, consistent with the Constitution.[36]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Imported Food Control
Act 1992, accessed 10 June 2015.
[2]. Parliament
of Australia, ‘Imported
Food Charges (Collection) Bill 2015 homepage’, Australian Parliament
website, accessed 10 June 2015.
[3]. Parliament
of Australia, ‘Imported
Food Charges (Imposition—General) Bill 2015 homepage’, Australian
Parliament website, accessed 10 June 2015.
[4]. Parliament
of Australia, ‘Imported
Food Charges (Imposition—Customs) Bill 2015 homepage’, Australian
Parliament website, accessed 10 June 2015.
[5]. Parliament
of Australia, ‘Imported
Food Charges (Imposition—Excise) Bill 2015 homepage’, Australian Parliament
website, accessed 10 June 2015.
[6]. Department
of Agriculture (DA), ‘Cost
recovery reviews: comprehensive review of Agriculture’s fees and charges’,
DA website, accessed
4 June 2015.
[7]. Ibid.
[8]. Department
of Agriculture (DA), ‘Redesign
of Agriculture’s cost recovery arrangements’, DA website, accessed 11 June
2015.
[9]. Ibid.
[10]. Further
information about the operation of the Quarantine Charges (Collection)
Act 2014 is contained in R Dossor and P Pyburne, Quarantine
Charges (Collection) Bill 2014 [and] Quarantine Charges
(Imposition—General) Bill 2014 [and] Quarantine Charges
(Imposition—Excise) Bill 2014 [and] Quarantine Charges
(Imposition—Customs) Bill 2014, Bills digest, 53, 2013–14,
Parliamentary Library, Canberra, 2014, accessed 10 June 2015.
[11]. J
Black and R Baldwin, ‘Really
responsive risk-based regulation’, Law and Policy, 32(2), April
2010, accessed 5 June 2015.
[12]. Department
of Agriculture (DA), ‘Importing
food’, DA website, accessed 5 June 2015.
[13]. The
food safety standards are part of the Food Standards
Code established in accordance with the Food Standards
Australia New Zealand 1991, accessed 11 June 2015.
[14]. Imported Food Control
Regulations 1993, accessed 5 June 2015.
[15]. Imported Food Control
Regulations 1993, regulation 14.
[16]. Imported
Food Control Regulations 1993, regulation 8.
[17]. Imported
Food Control Regulations 1993, regulation 9.
[18]. Department
of Agriculture (DA), ‘Imported
Food Inspection Scheme’, DA website, accessed 10 June 2015.
[19]. Imported
Food Control Regulations 1993, regulation 15.
[20]. Imported
Food Control Act 1992, section 36.
[21]. B
Joyce (Minister for Agriculture), Funding
strong biosecurity and export certification for the future, media
release, 3 June, accessed 15 June 2015 and Department of Finance, Australian
Government cost recovery guidelines, third edition, July 2014, accessed
11 June 2015.
[22]. Senate
Standing Committee for the Selection of Bills, Report
No. 7 of 2015, The Senate, Canberra, 18 June 2015, accessed 19 June
2015
[23]. Parliamentary
Joint Committee on Human Rights, Twenty-third
report of the 44th Parliament, The Senate, Canberra, 18 June 2015, p.
2, accessed 19 June 2015.
[24]. 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).
[25]. International
Covenant on Economic Social and Cultural Rights done at New York
on 16 December 1966 [1976] ATS 5, accessed 15 June 2015.
[26]. The
Statement of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum to the Imported
Food Charges (Collection) Bill 2015, accessed 19 June
2015.
[27]. Relevant
Statements of Compatibility with Human Rights can be found on pages 3, 4 and 5
of the Explanatory Memorandum for the Imported
Food Charges (Imposition—General) Bill 2015 [and] Imported Food Charges
(Imposition—Customs) Bill 2015 [and] Imported Food Charges (Imposition—Excise)
Bill 2015.
[28]. Explanatory
Memorandum, Imported
Food Charges (Collection) Bill 2015, p. 2; Explanatory Memorandum, Imported
Food Charges (Imposition—General) Bill 2015 [and] Imported Food Charges
(Imposition—Customs) Bill 2015 [and] Imported Food Charges (Imposition—Excise)
Bill 2015, p. 2, both accessed 19 June 2015.
[29]. Legislative Instruments
Act 2003, accessed 9 June 2015.
[30]. Explanatory
Memorandum, Imported
Food Charges (Collection) Bill 2015, p. 8.
[31]. Ibid.,
p. 10.
[32]. 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.
[33]. Administrative Appeals Tribunal
Act 1975, accessed 10 June 2015.
[34]. Explanatory
Memorandum, Imported
Food Charges (Imposition—General) Bill 2015 [and] Imported Food Charges
(Imposition—Customs) Bill 2015 [and] Imported Food Charges (Imposition—Excise)
Bill 2015, pp. 6–7.
[35]. Ibid.,
p. 1.
[36]. Ibid.,
p. 7.
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