Quarantine Charges (Imposition-General) Bill 2014

Quarantine Charges (Imposition-Customs) Bill 2014

Quarantine Charges (Imposition-Excise) Bill 2014

Quarantine Charges (Collection) Bill 2014

Portfolio: Agriculture
Introduced: House of Representatives, 6 March 2014

Purpose

2.1        The Quarantine Charges (Collection) Bill 2014 (the bill) forms part of a legislative package intended to re-align Australia’s biosecurity and quarantine imports system with an efficient and effective cost-recovery model, consistent with the Australian Government Cost-Recovery Guidelines.

2.2        The bill provides the authority to collect charges which are proposed to be imposed by the Quarantine Charges (Imposition–General) Bill 2014, the Quarantine Charges (Imposition–Excise) Bill 2014 and the Quarantine Charges (Imposition–Customs) Bill 2014. The bill includes a number of measures to:

• provide that regulations may be made to determine the manner in which quarantine charges are to be paid;
• provide the Commonwealth with powers to refuse service to a person liable to a charge or late payment fee, and to suspend or revoke permits;
• provide for enforcement powers to deal with goods and vessels to recover unpaid charges and late payment fees, to make directions in relation to any such goods and vessels (with a related offence for engaging in conduct that contravenes a direction) and to sell goods and vessels to recover outstanding debts;
• provide the Commonwealth with the power to deal with goods and vessels that are abandoned or forfeited; and
• provide for the remitting or refunding of fees in exceptional circumstances.

Background

2.3        The committee reported on the bills in its Fourth Report of the 44^th Parliament.

Committee view on compatibility

Right to privacy

Application of existing enforcement powers

2.4        The committee sought further information from the Minister for Agriculture regarding the compatibility of Part VIA of the Quarantine Act 1908 (Quarantine Act), as applied in the context of the bill, with the right to privacy.

Minister's response

Part VIA of the Quarantine Act has been incorporated into the Bill to ensure that there are consistent enforcement powers available to quarantine offices to enforce the collection of fees under the Quarantine Act and quarantine charges under this Bill. As noted in the Report, the application of Part VIA to the Bill is intended to protect the ability of the Commonwealth to collect quarantine charges when they are due and payable. The application of Part VIA to the Bill is limited by the extent that matters under this Part apply to the collection of charges and not for the general management of quarantine under the Quarantine Act. For example, section 66AO of the Quarantine Act relates to the use of equipment to examine and process things found at a premises for the purpose of quarantine. Powers under this section would not be applicable to the Quarantine Charges (Collection) Bill 2014. The limited application of Part VIA to the Bill ensures the extent that the right to privacy may be engaged is limited and will only occur in circumstances where it is necessary for the proper operation of the Bill.

In addition to the limited application of Part VIA of the Quarantine Act to the Bill, those sections which do apply have safeguards and restrictions built into them to ensure that the right to privacy and other human rights considerations are protected. For example, section 66AC of the Quarantine Act (which relates to monitoring warrants) prescribes a test of reasonableness so that a warrant to monitor premises can only be issued when it is reasonable to do so. Similarly, a quarantine officer may only search a vessel or vehicle without a warrant in an emergency situation and where the quarantine officer reasonably suspects that it is necessary to do so (see Division 5 of Part VIA of the Quarantine Act).

The tests of reasonableness built in to many of the enforcement provisions under Part VIA of the Quarantine Act, and which may in turn apply to the Bill, ensure that these enforcement powers are not used arbitrarily. In addition to these tests of reasonableness, many of the powers under this Part only apply to quarantine officers with appropriate training (see for example sections 66AA, 66AB and 6qAH) or authorisation {see for example sections 66AG, 66AK and 66AS). More generally, and as noted by the Report, the operation of the enforcement provisions under the Bill would be required to be exercised in compliance with the Privacy Act 1988.[1]

Committee response

2.5                  The committee thanks the Minister for Agriculture for his response and has concluded its examination of this matter.

Right to freedom of movement

Application of existing enforcement powers

2.6        The committee sought further information from the Minister for Agriculture regarding the compatibility of Part VIA of the Quarantine Act, as applied in the context of the bill, with the right to freedom of movement.

Minister's response

Part VIA of the Quarantine Act will only apply to the Bill to the extent that it applies to the collection of quarantine charges. The department anticipates using these provisions in very limited circumstances. As noted in the Report, Clause 24 of the Bill provides a Director of Quarantine with power to detain a vessel that is the subject of a charge. Given the relative value of a potential charge or late payment fee under the Bill and the potential value of a detained vessel it will only be in extremely rare circumstances that these enforcement powers would be used in a manner that may limit the right to freedom of movement.

The exercise of enforcement powers under clause 24 of the Bill are only available to the Director of Quarantine (as opposed to a quarantine officer) and therefore any potential limitation on the right to movement as a result of the use of these powers would be at the discretion of a senior officer. In addition to this high level of assessment, the department will ensure that the application of the powers under Part VIA of the Quarantine Act, in the context of this Bill, will be exercised in consideration of the right to the freedom of movement.[2]

Committee response

2.7                  The committee thanks the Minister for Agriculture for his response and has concluded its examination of this matter.

Right to a fair hearing

Presumption of innocence – reverse burden of proof

2.8        The committee noted that the reverse burdens proposed by the bill are unlikely to raise issues of incompatibility with the presumption of innocence. In particular, the burdens placed on the defendant are evidential burden only (as opposed to legal burden) and relate to matters that appear to be likely to be within the defendant's knowledge.

2.9        The committee emphasised its expectation that statements of compatibility should include sufficient detail of relevant provisions in a bill which impact on human rights to enable it to assess their compatibility. This includes identifying and providing justification where a reverse burden of proof is imposed.

Minister's response

These comments made by the committee have been noted and will be considered in the preparation of future statements of capability by my department.[3]

Committee response

2.10             The committee thanks the Minister for Agriculture for his response.

Merits review

2.11      The committee sought further information from the Minister for Agriculture on the compatibility of the bill with the right to a fair hearing, particularly the justification for the non-availability of merits review for a decision under proposed section 14, including:

• why it is necessary to preclude merits review for such decisions; and
• how preclusion of merits review in relation to such decisions is proportionate to achieving a legitimate objective, including all relevant procedural and other safeguards, and details of any less restrictive policy measures that may have been available or were considered in the development of the bill.

Minister's response

Clause 14 of the Bill provides for the power to suspend or revoke a number of approvals or authorisations made under the Quarantine Act where a person has not paid a quarantine charge or late payment fee which is due and payable. To ensure consistency with the Quarantine Act and to ensure that those subject to the Quarantine Act are afforded the same rights under this Bill, decisions made under clause 14 of the Bill are not subject to merits review. It would not be appropriate for fees charged under the Quarantine Act and quarantine charges under this Bill to have different review mechanisms.

Where required, mechanisms exist under the Bill to allow for decisions to be reviewed. For example, judicial review is available to challenge any decision made under clause 14 of the Bill. The availability of judicial review for decisions made under clause 14 is consistent with existing arrangements under the Quarantine Act and is an appropriate safeguard. The availability of judicial review under clause 14 achieves the legitimate objective of providing persons who are affected by decisions under the bill with the opportunity to have those decisions reviewed.[4]

Committee response

2.12             The committee thanks the Minister for Agriculture for his response and has concluded its examination of this matter.

2.13             However, as the committee stated in its initial consideration of the bill, the committee accepts that there may be some administrative or regulatory benefits to a degree of conformity between aspects of the bill and the Quarantine Act. The committee noted that the fact that a particular approach is or is not taken in a primary Act or elsewhere is not in and of itself a sufficient reason for justifying limitations on rights, in this instance the preclusion of merits review.

2.14             The committee notes that although decisions made under clause 14 of the bill may be subject to judicial review, this would be limited to a review of the application of the law, and could not include a consideration of the merits of the decision.

2.15             It is not clear to the committee how the preclusion of merits review for a decision made under proposed section 14 of the bills is consistent with the right to a fair hearing. The committee therefore recommends that the Minister for Agriculture consider the appropriateness of establishing a merits review scheme under the Quarantine Act 1908 and hence the Quarantine Charges (Collection) Bill 2014.

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