Key points
The Agriculture (Biosecurity Protection) Levies Bill 2024, Agriculture (Biosecurity Protection) Charges Bill 2024, and the Agriculture (Biosecurity Protection) Levies and Charges Collection Bill 2024 propose to:
- enable the imposition and collection of new agricultural biosecurity protection levies and charges (BPL)
- collect revenue to help fund Australia’s biosecurity system.
The three BPL Bills comprise:
- two imposition Bills that seek to establish a framework under which the different aspects of the proposed BPL system will operate
- a collection Bill that proposes a framework for collecting the BPL under the two imposition Bills.
Because the purpose of the BPL is to collect general revenue, there is no associated Disbursement Bill.
The Bills have not been referred to Committee for inquiry and report.
A consultation on the BPL was held between August and October 2023. Agricultural industry stakeholders are not supportive of the proposal.
Introductory Info
Date introduced: 28 February 2024
House: House of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: If the Bills receive Royal Assent before 1 July 2024, they will commence on 1 July 2024. If the Bills receive Royal Assent after 1 July 2024 they will commence on the earlier of proclamation or 6 months after Royal Assent.
Purpose of the Bills
The purpose of this suite of three Bills is to impose new agricultural biosecurity protection levies and
charges (BPL) which will be payable by certain producers of agricultural,
forestry and fisheries products within Australia; and to authorise their
collection to help fund the costs of biosecurity
activities at the border to prevent pest and disease incursions into
Australia.
The funds collected from the new BPLs will partially
offset the costs of the 2023–24
Budget measure ‘Strengthened and Sustainably Funded Biosecurity System’.[1]
This is part of the funding mechanism to achieve the
Government’s election
commitment aimed at ‘bolstering Australia's biosecurity system’.
Imposition Bills
Two Bills, collectively called the Imposition Bills,
establish a framework under which the different aspects of the BPL system
operate:
Collection Bill
The Agriculture
(Biosecurity Protection) Levies and Charges Collection Bill 2024
(Collection Bill) establishes a framework for collecting
levies and charges under the Levies Bill and the Charges Bill respectively.
No Disbursement Bill
There is no Disbursement Bill associated with the
Imposition and Collection Bills because all money collected from the BPL will
be treated as general revenue. According to the Explanatory
Memorandum to the Collection Bill (p. 2), the monies raised under the
Imposition Bills are intended to ‘provide a modest six per cent contribution by
producers to the costs of the Commonwealth biosecurity system’.
Background
About the agricultural levy system
According to the Department of Agriculture, Fisheries and
Forestry (DAFF):
The agricultural levy system allows agricultural, fisheries
and forestry industries to collectively invest in research and development
(R&D), marketing, biosecurity activities, biosecurity responses and residue
testing activities. These investments are made by levy recipient bodies on
behalf of relevant industries. Without this arrangement most individual
producers, processors or exporters could not invest effectively in these
activities.
The Australian Government also matches industry investment in
R&D up to legislated limits by providing payments to the levy recipient
bodies.[2]
History of the BPL
The concept of a levy to fund an effective national
biosecurity system is not new.
In 2017 an Independent Review of the capacity of
Australia’s biosecurity system (Craik Review) and the underpinning Intergovernmental
Agreement on Biosecurity (IGAB) was undertaken. The final report of the Review
entitled Priorities
for Australia’s biosecurity system acknowledged that ‘Governments and industry
are facing, and will continue to face, ongoing resourcing challenges’. However:
Governments do have some options available to provide a more
sustainable funding base, including reviewing their own cost-recovery
arrangements and implementing new biosecurity levies (for example, on inbound
shipping containers, inbound passengers and land-owners) to contribute further
to funding the national system. Governments have agreed sound national
investment principles and frameworks under the IGAB—the challenge is building
support within governments and with industry for implementation (p. 2).
The Review recommended (p. 7, recommendation 34),
amongst other things, that funding for the national biosecurity system should
be increased by implementing a per-container levy on incoming shipping
containers of $10 per twenty-foot equivalent unit and a levy of $5 on incoming
air containers, effective from 1 July 2019. This was to be called the
onshore biosecurity levy.
The Turnbull Government proposed an Onshore
Biosecurity Levy as part of the 2018–19 Federal Budget, but the proposal
did not proceed.
Announcement of the BPL
The BPL was announced on 9 May 2023 during Budget 2023–24 as one of the funding sources
for the budget measure ‘Strengthened and Sustainably Funded Biosecurity System’.[3]
DAFF also published a fact
sheet to explain the measure, which in part provides some explanation on
the BPL stating:
… a new biosecurity protection levy on all domestic
agricultural, fisheries and forestry producers will commence on 1 July 2024.
This levy will collect an amount equivalent to 10 per cent of 2020-21 levy
rates or another comparable metric where such levies are not in place.[4]
[emphasis added]
Policy development
On 4 May 2023 the Office
of Impact Analysis (OIA) responded to an Impact Analysis (IA) for a formal ‘Second
Pass Final Assessment’ submitted by DAFF. The OIA stated in its assessment on 8 May
2023:
… that the quality of the analysis is adequate and
therefore sufficient to inform a decision.
To be considered ‘good practice’ within the Government’s
Impact Analysis framework, the IA would have benefitted from:
- Further
analysis of impacts, including quantification of costs, justification of
costings, and description of qualitative impacts; and
- Further
description of consultation, including the range of stakeholders consulted and
areas of agreement and disagreement on the options.
OIA recognises that regulatory costs associated with this
proposal are difficult to calculate but understands that the approach taken was
designed to minimise any cost through leveraging existing mechanisms.[5]
While not producing a numerical cost/benefit analysis, the
IA submitted to the OIA by DAFF in relation to biosecurity sustainable funding
stated:
While the levy represents an additional cost to Australia’s
primary producers, DAFF considers this will be outweighed by the benefits such
producers gain from stronger biosecurity prevention arrangements.
…
… [the] cost [to the consumer] is estimated to be negligible
relative to the retail prices of associated produce and similar to the outcomes
associated with the current levies. Actual outcomes would be determined by
specific domestic supply chain relationships.[6]
The impact statement also asserted that there would be no
regulatory burden on individuals, and a negligible regulatory burden on primary
producers where they are already subject to levy arrangements.[7]
DAFF claimed that consultation on the BPL was conducted as part of a broader
platform dealing with a sustainably funded biosecurity system.[8]
Consultation
Following the Budget 2023–24 announcement, DAFF undertook
a ‘have
your say’ consultative process on the BPL, starting 22 August 2023 with
final submissions due on 13 October 2023. The consultation paper stated:
The Government has therefore committed to introduce a new
Biosecurity Protection Levy, subject to consultation on design and
implementation arrangements, by 1 July 2024.[9]
According to the consultation paper, unlike agricultural research
and development (R&D) levies:
The Biosecurity Protection Levy will not be subject to
producer voting arrangements in relation to its establishment or change, nor
will agriculture, fisheries and forestry producers or their representative
bodies have a direct role in determining its use.[10]
Further, the consultation paper states that the funds
generated from the BPL will be used for frontline biosecurity services and:
1) Australian
Government non-cost recovered biosecurity activities, such as plant and
animal health surveillance along Australia’s coastline and in near neighbour
countries such as Timor Leste, Papua New Guinea and the Solomon Islands.
2) community
awareness-raising and education around biosecurity, including in remote
frontline communities.
3) strategic
policy, research and innovation to support the development of improved
biosecurity preparedness and prevention activities.
4) piloting,
onboarding and ongoing sustainment of new biosecurity detection technologies
and diagnostic tools to enable improved and faster identification of pests and
disease.[11]
In addition, the consultation paper indicates that the
funding from the BPL will form part of general revenue, namely, the BPL:
… will not be directly appropriated to the Department of
Agriculture, Fisheries and Forestry, the additional contributions into
consolidated revenue will support the Government’s capacity to provide the
increased and ongoing appropriation funding for biosecurity committed to in the
Budget.[12]
Productivity Commission analysis
The Productivity Commission (PC) recently used its
analytical framework for levies to assess the BPL as a
case study.[13]
The PC’s analysis, presented in question-and-answer form, was not broadly
supportive of the BPL, particularly with the proposal to raise general revenue.
Some of the PC commentary is quoted below:
5. Can the sectoral public good be funded at a lower cost by
an industry levy than through general revenue?
Unlikely. Agricultural industry levy collection costs tend to
be above that of general ATO collection costs. Funding via general revenue is
generally cheaper than funding via industry levies. For primary producers that
currently do not have a levy, there will be a clear increase in administrative
costs.[14]
…
8. Is levy imposed on an efficient tax base?
No. The proposed levy will be imposed on top of existing
agricultural levies, which are predominantly transaction taxes, one of the less
efficient tax bases available to policy makers.[15]
Committee consideration
At the time of writing this Bills Digest, the Bills had
not been referred to a committee for inquiry and report.
Similarly, no comments about the Bills had been made by
the Senate Standing Committee for the Scrutiny of Bills.
Policy position of non-government parties/independents
The Nationals
Following the May 2023 Budget, when the BPL was first
announced, the Leader of the Nationals and Shadow Minister for Agriculture,
David Littleproud MP, stated
that a future Coalition government would abolish the BPL:
In government, the Coalition was in the process of delivering
a cost recovery model, where importers would pay a levy, commensurate to the
risk provided, rather than Australian farmers.
Labor has prioritised importers before Australian farmers. In
stark contrast, The Nationals will always put Australian farmers first.
Instead of taxing Australian farmers, we will establish an
‘importer container levy’, as recommended by the independent Craik Biosecurity
review.[16]
Since the introduction of the Bills, Mr Littleproud has added
that:
… the Bill introduced lacks any detail of the cost to farmers
or how the levy will be collected. It also states the rate of the levy can be
set to nil, in case the cost of collecting the levy in some sectors actually
exceeds the revenue raised from it. Farmers are still in the dark about this
new levy – Labor still needs to come up with exact costs and the rate they will
be taxed. This has created more confusion and anxiety.[17]
Minor
parties
Bob Katter MP, leader of the Katter Australia Party, made
a submission to the 2023 consultation process on the introduction of a BPL. In
his submission, Mr Katter states that the ‘cost burden for biosecurity
protection should be a core and fundamental obligation for the Australian
Government.’[18]
Mr Katter adds that:
It is highly objectional that primary producers should have
to pay for biosecurity measures that are required to be implemented due to risk
of pests and disease that are a direct result of the import of overseas
produce.
On this basis and for the additional reasons provided in the
following submission, the levy is opposed in the strongest of terms.[19]
Position of major interest groups
Since the introduction of the Bills, some agricultural
industry advocates have commented on the BPL.
However, the stakeholder comments canvassed below are
drawn from submissions by interest groups to the 2023 consultation
process for the proposed BPL. Many of those submissions expressed
opposition within the Australian agricultural sector to the establishment of a
BPL in the form proposed by the Bills.
For instance, the National Farmers Federation (NFF),
stated it was ‘utterly staggering’ that the Bill had been introduced given the
level of opposition to the BPL. The NFF added that ‘no
farming group wants it. It’s an administrative nightmare.’[20]
The NFF opposed the BPL not due to the increased costs
that it would incur for producers, but rather the flaws in the BPL’s
development and design. The NFF summarised its concerns with the BPL as being:
- Its inconsistency with established
levy imposition and collection principles;
- Its inconsistency with the agreed
principles of the National Biosecurity Strategy;
- The likelihood of a range of
negative unintended consequences for agricultural and biosecurity systems;
- The transparent use of the
collected funds to deliver dedicated, additional and tangible biosecurity
outcomes;
- The lack of recognition of
existing producer contributions to the biosecurity system; and
- The need for increased
contributions from risk creators, including containerised imports.[21]
Submissions from other agricultural advocacy organisations
raised similar concerns. (Many of these groups are also members of the NFF).
Criticisms were most often focused on: the consultation process; the
transparency of how funds raised will be used; and equity issues, including
whether it is fair to target a levy at producers and whether the cost burden of
the BPL will be equitably shared among producers.
Lack of early consultation
Many submissions were critical of the government’s
approach to the development of the BPL. The NFF highlighted that the government
had claimed (in a submission to the Office of Impact Assessment) that the
option of a domestic levy was included in a discussion paper for stakeholders.
The NFF disputed the claim that the option of a domestic levy had been raised
and stated that it had ‘significant concerns with the policy development to
date.’[22]
Grain Producers Australia noted that there was no
consultation prior to the announcement of the policy in the May 2023 Budget.[23]
Plant Health Australia suggested that this lack of early consultation was
inconsistent with how levies had been developed in the past.[24]
AUSVEG argued that as the levy system is based on partnerships between
government and industry, this lack of consultation meant that the BPL should be
considered a tax rather than a levy.[25]
How funds will be used
Industry stakeholders were also concerned that the BPL’s
lack of hypothecation means that there is little transparency on how raised
funds will be spent. The NFF suggested that ‘industry is concerned that the
revenue raised by the Levy will not be solely used to fund dedicated,
additional and tangible biosecurity activities.’[26]
AUSVEG noted that the increased funding would not
necessarily lead to ‘more boots on the ground’ undertaking biosecurity work and
suggested that the Department of Agriculture, Fisheries and Forestry (DAFF)
‘must maximise internal efficiencies before taxing other sectors.’[27]
Similar concerns around DAFF’s financial management were also raised by the
Plant Industries Forum and Grain Producers Australia.[28]
Whether the levy is fair or equitable
Agricultural stakeholders also questioned whether the BPL
is a fair or equitable means of sharing the burden of funding biosecurity
measures. The Craik Review had recommended that, due to the biosecurity risk
posed by freight imported into Australia, a levy should be placed on containers
imported into Australia.[29]
Many agriculture stakeholders argued that creators of biosecurity risks should
be the focus of cost-recovery and so the implementation of the container levy
(rather than the BPL) should be prioritised.[30]
The Red Meat Advisory Council (RMAC) noted that trade agreements could
complicate the implementation of a container levy, but stated that:
While a broader import or container levy has been touted as
another funding source for biosecurity, until it can be demonstrated as a
viable and World Trade Organisation compliant solution, the shortfall should be
covered by the taxpayer.[31]
Linkage to existing levies
There were also concerns that the BPL’s linkage to
existing levy arrangements would result in an inequitable split of costs among
Australian producers. The amount of money raised through existing levies and
what the funds can be used for currently varies among agricultural industries.
Additionally, not all agricultural industries currently use levies. For
example, Seafood Industry Australia noted
that there are over 5,000 seafood species fished or farmed in Australia but
only the farmed prawn industry has a levy process in place.[32]
GrainGrowers suggested that the existing levy rates ‘reflect
the appetite for and perception of risk in the various industries and the
extent to which an industry values innovation’ and do not represent either
exposure to biosecurity risk or level of benefit from biosecurity services.[33]
RMAC added that using the existing levy base effectively ‘punished’ industries
that invested heavily in research and development or that had voluntarily opted
to include a marketing component to their levies.[34]
Financial implications
The Explanatory
Memorandum to the Imposition Bills (Levies Bill and Customs Bill) states that
the BPL will ‘increase receipts by $153.0 million over the 3 years from 2024–25’.[35]
The Explanatory
Memorandum to the Collection Bill states that the ‘costs associated with
the establishment, collection and administration of the BPL would be … $0.8
million in administration costs per year.[36]
Statement of Compatibility
with Human Rights
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 considers that the Bills are compatible.[37]
Key issues and provisions
Context of the current Bills
On 18 October 2023, the Government introduced a suite of
Bills to modernise the agricultural levies framework including:
Collectively these are known as the 2023 Imposition Bills.
They are supported by the Primary
Industries Levies and Charges Collection Bill 2023 (2023 Collection Bill)
and the Primary
Industries Levies and Charges Disbursement Bill 2023 (2023 Disbursement
Bill).[38]
At the time of writing this Bills Digest, the 2023 Bills
have been passed by the House of Representatives and are still subject to
consideration by the Senate.
The three 2023 Imposition Bills permit regulations to
impose a levy (or charge as the case may be) on produce of a primary
industry. Importantly before the Governor-General makes regulations to
impose a levy or charge under any of the 2023 Imposition Bills, the Minister
must be satisfied that the imposition of the levy will result in, amongst other
things:
- expenditure
on activities, including biosecurity activities relating to the promotion or
maintenance of the health of plants, animals, fungi or algae
- expenditure
on matters relating to a biosecurity
response or
- expenditure
on any other activity prescribed by the regulations in relation to one
or more primary industries and for the benefit of one or more primary
industries. [39]
The 2023 Imposition Bills create the legislative
foundation for the biosecurity protection levies and charges which are to be
imposed under the current Bills.
The Imposition Bills
Imposition of levies and charges
Clause 7 of the Levies Bill links the imposition of
a BPL to products or goods, or on a transaction, act or thing in relation to a
product or goods which are levied by regulations made under Part 2 or Part 4 of
the Primary
Industries (Excise) Levies Act 2024 (when enacted), or if the 2023
Imposition Bills are not enacted—then the current levy law (called the old
levy law), [40]
that is prescribed by regulation (referred to as the existing levy
provision).
Clause 8 of the Levies Bill allows for regulations
to impose a BPL on one or more products that are produce of a primary
industry[41]
and/or goods connected with nursery products in the circumstances that are
prescribed by the regulations. Clause 9 allows
for regulations to specify exemptions from the BPL.
Similarly, clause 7 of the Charges Bill imposes a BPL
charge on products that are exported from Australia which are subject to
charges imposed by regulations made under Part 2 of the
Primary
Industries (Customs) Charges Act 2024 (when enacted), or if the 2023
Imposition Bills are not passed—then the current charge law (called the old
charge law), that is prescribed by regulation (referred to as the existing
charge provision).[42]
Clause 8 of the Charges Bill allows for regulations
to impose a biosecurity protection charge (BPC) on one or more specified
products that are the produce of primary industry. The regulations may specify
the circumstances in which the BPC is to be imposed. Clause 9 allows for
regulations to be made specifying exemptions from the BPC.
Setting the rate
Clause 11 of both Imposition Bills stipulate in equivalent
terms that the levy rate for the Levies Bill, or charge rate for the Charges Bill, is worked out in accordance with
the regulations.
Different rates of the same BPL or BPC may be prescribed
by the regulations for different kinds of products or goods.
Payer of the levy or charge
Clause 12 of both the Imposition Bills provides
that a levy for the Levies Bill, or charge for the Charges Bill, is payable by
a person either in accordance with the regulations; or by the person who is
required to pay a levy under the existing levy provision or the
person who is required to pay a charge under the existing charge provision.
Other matters
Part 6 of both the Imposition Bills deal with other
matters including the property of states and GST, as well as the treatment of
partnerships, trusts, and unincorporated bodies and associations. The
provisions of Part 6 of the Levy Bill and the Charges Bill are in equivalent
terms.
Subclause 18(1) of the Imposition Bills allows the
Governor-General to make regulations as prescribed or permitted by the proposed
Imposition Acts. Subclause 18(2) allows the regulations to confer power
on the Minister or the Secretary to make a legislative instrument. Subclause
18(3) allows the regulation to make provision in relation to a matter by
applying, adopting or incorporating, with or without modification, any matter
contained in an instrument or other writing as in force or existing from time
to time.
This overrides subsection 14(2) of the Legislation
Act 2003, which provides that a legislative instrument or notifiable
instrument ‘may not make provision in relation to a matter by applying,
adopting or incorporating any matter contained in an instrument or other
writing as in force or existing from time to time’, unless the contrary
intention appears.
The Senate
Standing Committee for the Scrutiny of Bills generally comments on such
provisions.
Where provisions in a bill allow the incorporation of
legislative provisions by reference to other documents, this raises the
prospect of changes being made to the law in the absence of parliamentary
scrutiny. Further, the incorporation of external material can create
uncertainty in the law and, if relevant information is not publicly available,
may mean that members of the public are not able to freely and readily access
the terms of the law. Where a bill allows the incorporation of external
materials as existing from time to time, the committee expects the explanatory
memorandum to the bill to address the following matters:
- why it is appropriate to allow the
incorporation of external materials as existing from time to time; and
- whether the incorporated material
will be made freely available to all persons interested in the terms of the
law.
Whilst the Bills have not yet been the subject of comment
by the Committee, the Explanatory
Memorandum to the Imposition Bills states:
It is considered appropriate to enable the incorporation of
documents as they exist from time to time because the documents that would be
referred to may include technical reference materials or production standards
that are updated as required.
It is intended that where the regulations would incorporate
such documents, they would either be freely or publicly available, or they
would be documents required in the ordinary course of doing business in the
particular industry. For example, the tea tree oil levy is imposed with
reference to the ISO standard for tea tree oil production. In Australia,
industry practice requires tea tree oil to conform to this standard, so access
to the standard is already an industry requirement (p. 17).
The Collection Bill
The Collection Bill proposes a framework for collecting
the BPL under the two imposition Bills. It also establishes procedures for
compliance by triggering the monitoring, investigation, and enforcement powers
of the Regulatory
Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).
Payment of
a levy or charge
Part 2 of the Collection Bill establishes the framework of
rules for the collection of levies and charges. The essential features are as
follows:
- Clause
8 stipulates that rules may be made about when a levy or charge is due and
payable and the circumstances in which it may be paid to another entity on
behalf of the Commonwealth.
- Clause
9 provides that where an amount of levy or charge remains unpaid at the end
of the due day, the levy payer or charge payer is liable for a late payment
penalty for the period from the day after the due day until the day before the
whole of the unpaid amount is paid. The method for
calculating the amount of the penalty is established in subclause 9(3).
- The
Secretary is empowered to remit the whole or part of the penalty having regard
to the matters listed in subclause 9(6).
- Subclause
10(1) allows for rules to be made to provide for collection agents to pay
an amount on behalf of levy or charge payers that is equal to the amount of
levy or charge due—that is, an equivalent amount. In addition,
the rules may specify the time that the equivalent amount is due and payable.
- Clause
11 provides that a collection agent is liable to pay to the Commonwealth a
late payment penalty where the whole or a part of an equivalent amount is
unpaid at the end of the due day. The penalty period and the ability of the
Secretary to remit the penalty are in equivalent terms to those relating to a
payment by a levy payer or charge payer. The method for calculating the amount
of the penalty is established in subclause 11(3).
- Clause
12 allows the Commonwealth to make collection agreements with the states
and territories about both the collection by that state or territory of a levy
or charge payable by a levy payer or charge payer; and the collection of
equivalent amounts that a collection agent is liable to pay. The Commonwealth
may also enter into collection agreements with other persons or bodies. The
Secretary must publish a copy of any collection agreement on the Department’s
website and in the Gazette, within 28 days of making the agreement: subclause
12(4).
Recovery and refund of amounts
Clause 13 provides that unpaid amounts of a levy or
a charge, amounts that a collection agent is liable to pay, and late payment
penalties are debts due to the Commonwealth which are recoverable in a court of
competent jurisdiction. Where any of those amounts has been overpaid the
Commonwealth must refund the amount: clause 14. In the alternative, clause
15 of the Collection Bill allows the Commonwealth, or another entity on
behalf of the Commonwealth, to offset the amount that a levy payer or charge
payer is liable to pay against previous overpayments which have not been
refunded.
Civil penalties
Clauses 17 and 18 create offences and civil
penalties for persons who fail to:
- give
a return or notice under the rules or
- make
or keep records in accordance with the rules.
In each case the offence is one of strict liability. The
imposition of strict liability means that a fault element does not need to be
satisfied, but the offence will not criminalise honest errors and a person
cannot be held liable if they had an honest and reasonable belief that they
were complying with relevant obligations.[43]
The civil penalty provisions are framed in equivalent
terms to the strict liability offences. In every case
the maximum penalty is 60 penalty units, which is equal to $18,780.[44]
Triggering the Regulatory Powers Act
Part 4 of the Collection Bill deals with
compliance, enforcement, and investigation. Part 4 triggers the operation of
the Regulatory Powers Act which was enacted
to provide for uniformity
of enforcement, monitoring and investigation provisions across Commonwealth
statutes. Part 2 and 3 of the Regulatory Powers Act are of importance
for the Collection Bill.
- Under
Part 2 of the Regulatory Powers Act, an authorised person
may enter premises for the purposes of monitoring, either with
the consent of the occupier or under a monitoring warrant. The authorised
person can exercise monitoring powers with regards to compliance with a
provision or the correctness of information given in compliance with a
provision. Monitoring powers include the power to search premises, the power to
examine or observe any activity conducted on the premises, the power to inspect
and examine anything on the premises, the power to record anything on the
premises and the power to inspect and copy any document on the premises.
- Investigation
powers under Part 3 of the Regulatory Powers Act allow an authorised
person, either with the consent of the occupier or under an
investigation warrant, to search premises for evidential material suspected to
be on the premises, the power to seize evidential material found on the
premises, the power to inspect and examine anything on the premises, and the
power to record anything on the premises.
Monitoring
and investigation powers
Clauses 20 and 21 of the Collection Bill trigger the monitoring powers and investigation powers of
the Regulatory Powers Act respectively.
Authorised
persons
Subclauses 20(4) and 21(3) of the Collection Bill
provide that a compliance officer is an authorised person.
Clause 4 of the Collection Bill defines a compliance officer
as the Secretary or an APS employee in the Department who has been appointed to
that position under clause 47.
Other
compliance and enforcement tools
The Collection Bill also triggers the Regulatory Powers
Act to:
- enforce
civil penalty provisions in the Collection Bill: clause 22
- allow
for the giving of infringement notices in respect of specified civil penalties
and offences: clause 23 and
- empower
the Secretary or a delegate of the Secretary to apply to a court for an
injunction to restrain a person from contravening a provision, or to compel
compliance with a provision of the Collection Bill: clause 24.
Information management
The Secretary may require a person to produce information
or documents relevant to the operation of the Collection Bill or the rules: clause
26. A person who has been given a written notice by the Secretary to provide
information or produce documents commits an offence of strict liability if the
person fails to comply with the terms of the notice: subclause 26(4). In
the alternative, the person may be liable for a civil penalty in equivalent
circumstances: subclause 26(5). In either case, the maximum penalty is
60 penalty units which is equal to $18,780.[45]
Clause 42 provides that civil penalties will apply
where a person is required to give a return under the rules or produce
information or documents under clause 26 and the person:
- gives
a return that is false or misleading: subclause 42(1)
- produces
a document to the Secretary which is false or misleading: subclause 42(3)
- gives
information to the Secretary knowing that the information is false or
misleading: subclause 42(5).
In every case the maximum penalty is 60 penalty units
which is $18,780.[46]
Under clause 28 an entrusted person
can use or disclose information for the purposes of administering the
legislation, monitoring compliance, and for research and policy development.[47]
Clause 4 of the Collection Bill defines the term entrusted person
as any of the following:
- the
Minister
- the
Secretary
- an
APS employee in the Department
- any
other person who is employed or engaged by the Commonwealth to provide services
to the Commonwealth in connection with the Department
- any
other person who is employed or engaged by the Commonwealth or a body corporate
that is established by a law of the Commonwealth who is a member of a class of
persons prescribed by the rules.
An entrusted person commits an offence if
they have obtained or generated information in the course of administering (or
assisting another person to administer) the Agriculture (Biosecurity
Protection) Levies and Charges Collection Act 2024 (when enacted), the
rules made under that Act or monitoring compliance with the Act and they use or
disclose information that is protected information. In that case,
the maximum penalty is imprisonment for 12 months. In the alternative the
entrusted person may be liable for a civil penalty of a maximum of 60 penalty
units: subclauses 40(1) and (2).
The term protected information relates to information
(including commercially sensitive information) the disclosure of which could
reasonably be expected to found an action by a person (other than the
Commonwealth) for breach of a duty of confidence: subclause 40(3).
Other matters
Some decisions made under the Collection Bill are subject
to internal reconsideration and then to external review by the
Administrative Appeals Tribunal (AAT): clauses 43 and 44. The decisions that
are eligible for internal reconsideration relate to the imposition of a late
payment penalty on an unpaid amount of levy or charge under clauses 9 and 11; a
decision by the Secretary made in substitution for a decision made by the
operation of a computer program made under subclause 48(4); or a decision
prescribed by the rules, provided that those decisions were not made by the
Secretary personally. Decisions made by the Secretary personally and decisions
made on internal reconsideration are eligible for review by the AAT.
Concluding comment
The Imposition Bills are likely to be the subject of
considerable criticism amongst levy and charge payers.
First, the amounts are in addition to existing
levies and charges.
Second, the amounts payable are not specified in
the Imposition Bills themselves—but rather are to be calculated by a method
stipulated in Regulations. According to the Explanatory
Memorandum to the Collection Bill (p. 1):
The BPL will generate revenue to contribute around six per
cent of the costs of sustainably funded biosecurity system. It will
supplement much larger contributions from taxpayers and importers, that between
them will contribute more than nine out of every ten dollars needed to fund our
biosecurity system. [emphasis added]
Third, there may be some exemptions from payment,
but again the relevant exemptions are to be set out in Regulations.
Finally, the levies and charges are to be paid into
consolidated revenue rather than being directed specifically to biosecurity
activities.