Bills Digest no. 74 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.
Paula Pyburne
Law and Bills Digest Section
12 February 2015
Contents
Purpose of the Bills
Background
Committee consideration
Statement of Compatibility with Human Rights
Financial implications
Key issues and provisions
Date introduced: 27 November 2014
House: House of Representatives
Portfolio: Agriculture
Commencement: For each of the Bills, sections 1–3 on Royal Assent; Schedule 1 at the same time as section 3 of the Biosecurity Act 2014 commences.
Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the Quarantine Charges (Imposition —General) Amendment Bill 2014, the Quarantine Charges (Imposition—Customs) Amendment Bill 2014 and the Quarantine Charges (Imposition—Excise) Amendment Bill 2014 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 Bills are part of a package of five Bills to provide for a regulatory framework which reflects and replaces the Quarantine Act 1908.[1] The other Bills in the package are:
- Biosecurity Bill 2014[2] and
- Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 (Consequential Amendments Bill).[3]
The Bills which are discussed in this Bills Digest are:
- Quarantine Charges (Imposition—General) Amendment Bill 2014 (General Bill)[4]
- Quarantine Charges (Imposition—Customs) Amendment Bill 2014 (Customs Bill)[5] and
- Quarantine Charges (Imposition—Excise) Amendment Bill 2014 (Excise Bill).[6]
The purpose of each of the Bills covered by this Digest is to amend the short title of its parent Act and to continue recovery of the costs for biosecurity services.
The Australian Government Cost Recovery Guidelines provide that ‘Australian Government entities should generally set charges to recover the full cost of providing specific activities’.[7]
Consistent with those guidelines, the Quarantine Charges (Collection) Act 2014,[8] which commenced on 1 July 2014, enables the Commonwealth to recover costs for the provisions of key biosecurity and quarantine services.[9] The relevant charges are imposed by:
- Quarantine Charges (Imposition—General) Act 2014[10]
- Quarantine Charges (Imposition—Customs) Act 2014[11] and
- Quarantine Charges (Imposition—Excise) Act 2014.[12]
Under the Quarantine Charges (Collection) Act, amongst other things:
- unpaid quarantine charges and late payment fees are debts to the Commonwealth and may be recovered by action in a relevant court
- the Commonwealth has enforcement powers to deal with goods and vessels to recover unpaid charges and late payment fees
- the Commonwealth may create a charge on a good or vessel and withhold goods that are subject to a charge
- the Commonwealth has the power to sell goods and vessels to recover outstanding debts.[13]
The amendments contained in the Bills which are discussed in this Bills Digest will ‘allow the Commonwealth to impose charges that appropriately reflect the cost of administering the Biosecurity Act’ as well as duties of customs and excise.[14]
Importantly, item 2 of Schedule 1 of the Consequential Amendments Bill repeals the Quarantine Charges (Collection) Act. Instead, Part 3 of Chapter 11 of the Biosecurity Bill contains the relevant cost recovery provisions. Whilst many of those provisions are in equivalent terms to those in the Quarantine Charges (Collection) Act that is not uniformly the case. The relevant changes are discussed in the Bills Digest for the Biosecurity Bill.
Senate Rural and Regional Affairs and Transport Committee
The package of Bills has been referred to the Senate Rural and Regional Affairs and Transport Committee (the Committee) for inquiry and report by 17 March 2015.[15] At the time of writing this Bills Digest, none of the submissions to the Committee made comments in relation to the three Charges Imposition Bills.
Senate Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest the Senate Standing Committee for the Scrutiny of Bills had not made any comments in relation to any of the Bills in the package of Bills.
Parliamentary Joint Committee on Human Rights
According to the Parliamentary Joint Committee on Human Rights the limitations on rights imposed by the Bills are justified and compatible with Australia's human rights obligations.[16]
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.[17] The Government considers that the Bills are compatible with human rights as they do not engage any human rights issues.[18]
According to the Explanatory Memorandum for the Bills, they ‘have no financial impact on the Commonwealth or industry. The Bills do not set the amount of the charges and will not impose any financial impacts on business’.[19]
That statement is correct. The Quarantine Charges (Imposition—General) Act, the Quarantine Charges (Imposition—Customs) Act and the Quarantine Charges (Imposition—Excise) Act provide that a regulation may prescribe the amount of each of the relevant charges imposed, or specify the method for calculating that charge. In addition, each of these Acts provides that the amount of the relevant charge is to be set at a level that is designed to recover no more than the Commonwealth’s likely costs in connection with the matter.
General Bill
Change of name
The long title to the Quarantine Charges (Imposition—General) Act describes it as ‘an Act to impose, as taxes, charges in relation to matters connected with the administration of the Quarantine Act 1908, so far as those charges are neither duties of customs nor duties of excise, and for related purposes’. Item 1 of the General Bill substitutes the reference to the Quarantine Act 1908 with a reference to the Biosecurity Act 2014. Similarly, item 2 of the General Bill substitutes the short title to the Quarantine Charges (Imposition—General) Act 2014 with the words Biosecurity Charges Imposition (General) Act 2014.
Extraterritorial application
Existing section 4 of the Quarantine Charges (Imposition—General) Act provides that the Act extends to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands and that application of the Act may be extended to any other external Territory by regulation.
Item 3 of the General Bill repeals and replaces section 5 of the Quarantine Charges (Imposition—General) Act which sets out its extraterritorial application. It does not make a substantive change but is a simpler version of existing section 5. Proposed section 5 applies to all acts, omissions, matters and things that occur outside:
- Australia and any external Territory as defined in section 4
- the airspace over an area of Australia and those external Territories; and
- the coastal sea of Australia and of any of the external Territories defined in section 4.
The term coastal sea is defined in the Acts Interpretation Act 1901[20] as:
(a) in relation to Australia, means:
(i) the territorial sea of Australia; and
(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;
and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and
(b) in relation to an external Territory, means:
(i) the territorial sea adjacent to the Territory; and
(ii) the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory;
and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.
According to the Explanatory Memorandum for the Bills, the amendment will ensure that:
... charges in relation to prescribed matters connected with the administration of the Biosecurity Act can be imposed on persons and organisations located overseas. This clause is necessary to impose charges on persons wishing to import goods into Australia who are located overseas.[21]
Imposition of charges
Existing section 7 of the Quarantine Charges (Imposition)—General) Act provides that a regulation may prescribe a charge in relation to matters connected with the administration of the Quarantine Act 1908. It also specifies that the charge is imposed as a tax in accordance with section 55 of the Constitution.[22] Section 55 provides that laws imposing taxation must deal only with one subject of taxation and must not deal with any other matter. Section 55 further provides that laws imposing duties of customs or excise may only deal with those particular duties. It is because of the requirements of section 55 of the Constitution that three separate Bills are required.
Item 4 of the General Bill repeals and replaces section 7 of the Quarantine Charges (Imposition—General) Act. The terms of proposed section 7 are equivalent to those in existing section 7 except that the reference to the Quarantine Act 1908 is replaced by a reference to the Biosecurity Act 2014.
The repeal of existing provisions of the Quarantine Charges (Imposition—General) Act by items 5 and 6 of the Bill are consequential measures.
Customs Bill
The Customs Bill amends the Quarantine Charges (Imposition—Customs) Act. The provisions of the Customs Bill are equivalent to those in the General Bill—that is, amendments to:
- change the name of the Quarantine Charges (Imposition—Customs) Act to the Biosecurity Charges Imposition (Customs) Act 2014[23]
- clarify the extraterritorial application of the Quarantine Charges (Imposition—Customs) Act[24]
- provide for the imposition of charges (duties of custom) in relation to a matter connected with the administration of the Biosecurity Act 2014 (rather than the Quarantine Act 1908)[25] and
- make consequential amendments by repealing existing provisions of the Quarantine Charges (Imposition—Customs) Act.[26]
Excise Bill
The Excise Bill amends the Quarantine Charges (Imposition—Excise) Act. The provisions of the Excise Bill are equivalent to those in the General Bill—that is, amendments to:
- change the name of the Quarantine Charges (Imposition—Excise) Act to the Biosecurity Charges Imposition (Excise) Act 2014[27]
- provide for the imposition of charges (duties of excise) in relation to a matter connected with the administration of the Biosecurity Act 2014 (rather than the Quarantine Act 1908)[28] and
- make consequential amendments by repealing existing provisions of the Quarantine Charges (Imposition—Customs) Act.[29]
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[1]. Quarantine Act 1908, accessed 8 January 2015.
[2]. Parliament of Australia, ‘Biosecurity Bill 2014 homepage’, Australian Parliament website, accessed 6 January 2015.
[3]. Parliament of Australia, ‘Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 homepage’, Australian Parliament website, accessed 6 January 2015.
[4]. Parliament of Australia, ‘Quarantine Charges (Imposition—General) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 6 January 2015.
[5]. Parliament of Australia, ‘Quarantine Charges (Imposition—Customs) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 6 January 2015.
[6]. Parliament of Australia, ‘Quarantine Charges (Imposition—Excise) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 6 January 2015.
[7]. Department of Finance, Australian Government Cost Recovery Guidelines, third edn, Commonwealth of Australia, 2014, p. 6, accessed 8 January 2015.
[8]. Quarantine Charges (Collection) Act 2014, accessed 8 January 2015.
[9]. Further information about the operation of the Quarantine Charges (Collection) Act 2014 is contained in the 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 8 January 2015.
[10]. Quarantine Charges (Imposition—General) Act 2014, accessed 8 January 2015.
[11]. Quarantine Charges (Imposition—Customs) Act 2014, accessed 8 January 2015.
[12]. Quarantine Charges (Imposition—Excise) Act 2014, accessed 8 January 2015.
[13]. Explanatory Memorandum, Quarantine Charges (Collection) Bill 2014, pp. 3–4, accessed 8 January 2015.
[14]. B Joyce (Minister for Agriculture), ‘Second reading speech: Quarantine Charges (Imposition—General) Amendment Bill 2014’, House of Representatives, Debates, 27 November 2014, p. 13431, accessed 8 January 2015.
[15]. Details of the terms of reference, submissions to the Committee and the Committee’s final report (when published) are contained in the inquiry homepage, accessed 2 January 2015.
[16]. Parliamentary Joint Committee on Human Rights, Eighteenth report of the 44th Parliament, 10 February 2015, p. 31, accessed 11 February 2015.
[17]. The Statement of Compatibility with Human Rights can be found at pages 5—7 of the Explanatory Memorandum to the Bill.
[18]. Ibid.
[19]. Explanatory Memorandum, Quarantine Charges (Imposition—General) Amendment Bill 2014, Quarantine Charges (Imposition—Customs) Amendment Bill 2014 [and] Quarantine Charges (Imposition—Excise) Amendment Bill 2014, p. 4, accessed 8 January 2015.
[20]. Acts Interpretation Act 1901, subsection 15B(4), accessed 5 February 2015.
[21]. Explanatory Memorandum, Quarantine Charges (Imposition—General) Amendment Bill 2014; Quarantine Charges (Imposition—Customs) Amendment Bill 2014 [and] Quarantine Charges (Imposition—Excise) Amendment Bill 2014, p. 8, accessed 5 February 2015.
[22]. Commonwealth of Australia Constitution Act, accessed 5 February 2015.
[23]. Quarantine Charges (Imposition—Customs) Amendment Bill 2014, items 1 and 2.
[24]. Quarantine Charges (Imposition—Customs) Amendment Bill 2014, item 3.
[25]. Quarantine Charges (Imposition—Customs) Amendment Bill 2014, item 4.
[26]. Quarantine Charges (Imposition—Customs) Amendment Bill 2014, items 5 and 6.
[27]. Quarantine Charges (Imposition—Excise) Amendment Bill 2014, items 1 and 2.
[28]. Quarantine Charges (Imposition—Excise) Amendment Bill 2014, item 3.
[29]. Quarantine Charges (Imposition—Excise) Amendment Bill 2014, items 4 and 5.
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