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:

• the Agriculture (Biosecurity Protection) Levies Bill 2024 (Levies Bill) deals with the imposition of a new set of biosecurity protection levies that are duties of excise, and for related purposes and
• the Agriculture (Biosecurity Protection) Charges Bill 2024 (Charges Bill) deals with the imposition of a new set of biosecurity protection charges that are duties of customs, and for related purposes.

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:

• the Primary Industries (Excise) Levies Bill 2023 (Excise Bill)
• the Primary Industries (Customs) Charges Bill 2023 (Customs Bill) and
• the Primary Industries (Services) Levies Bill 2023 (Services Bill).

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.