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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EXPORT CHARGES (COLLECTION) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, the Hon. Barnaby Joyce MP)
EXPORT CHARGES (COLLECTION) BILL 2015
General Outline
The Export Charges (Collection) Bill 2015 (collection bill) forms part of a legislative
package to support Australia's system for the control of exported goods with an
efficient and effective cost recovery model which is consistent with the Australian
Government Cost Recovery Guidelines.
The collection bill provides authority to collect charges imposed under the Export
Charges (Imposition--General) Bill 2015, the Export Charges (Imposition--Excise)
Bill 2015 and the Export Charges (Imposition--Customs) Bill 2015 (the imposition
bills).
The export of certain goods is managed under the Export Control Act 1982 (Export
Control Act) and the Australian Meat and Livestock Industry Act 1997 (AMLI Act).
These Acts and other supporting legislation provide the basis for ensuring that certain
exports such as meat, seafood, dairy, plant products, non-prescribed goods and live
animals meet the requirements of importing countries.
The Department of Agriculture (department) monitors operational policy and systems
to ensure compliance with Australian export controls and any additional importing
country requirements. This is achieved by undertaking inspection, audit and
certification activities to ensure that the production, storage, handling and
transportation of meat, seafood, dairy, plant products, non-prescribed goods and live
animals intended for export comply with Australian export controls and any additional
requirements imposed by an importing country.
These activities serve to maintain the eligibility of commodities for export from
Australia and ensure that market access is maintained. The department also issues
permits, health certification and other documentation necessary to confirm
compliance with the export control orders and any additional importing country
requirements.
Monitoring compliance with export legislation comes at a cost. The Australian
Government Cost Recovery Guidelines state that agencies should set charges to
recover some or all the costs of activities that they provide. These charges should
reflect the costs of providing the activity and should generally be imposed as a fee or,
where efficient, as a levy.
This collection bill is part of a legislative package that is designed purely as a cost
recovery mechanism. This package is needed to recover costs under both the Export
Control Act and AMLI Act.
Existing export charging legislation is complex and allows for the recovery of charges
in relation to the Export Control Act only. This package of bills will ensure that
appropriate cost recovery mechanisms are in place for all export related activities. It
provides a modern drafting framework for applying cost recovery levies that can be
used to recover costs across all agricultural exports.
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The collection bill provides that the regulations will determine the manner in which
the export charges and late payment of fees are to be paid. This includes the time in
which a specified export charge is to be paid, the liability of a person's agent to pay
charges on that person's behalf and the establishment of appropriate late payment fees
where charges are not paid in the time prescribed. Providing for such matters in the
regulations will allow the Minister for Agriculture to make appropriate and timely
adjustments when required.
The collection bill provides the Commonwealth with powers to refuse service in
relation to a person who is liable to pay a charge or late payment fee. The collection
bill also includes powers to suspend or revoke permits, licences, registrations or any
other approval given under the Export Control Act or AMLI Act until payment is
made.
Unpaid charges and late payment fees will be considered as debts to the
Commonwealth and may be recovered by action in a relevant court.
The collection bill sets out provisions for the remitting or refunding of charges or late
payment fees where the Secretary of the Department of Agriculture decides it is
appropriate to do so.
Financial Impact Statement
The collection bill has no financial impact on the Commonwealth or industry. The
collection bill does not set the amount of the charges and will not impose any
financial impacts on businesses.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Export Charges (Collection) Bill 2015
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The collection bill forms part of a legislative package to support Australia's system
for the control of exported goods with an efficient and effective cost recovery model
which is consistent with the Australian Government Cost Recovery Guidelines.
The collection bill provides authority to collect charges imposed under the imposition
bills.
The export of certain goods is managed under the Export Control Act and the AMLI
Act. These Acts and other supporting legislation provide the basis for ensuring that
certain exports such as meat, dairy, fish, plant products and live animals meet the
requirements of importing countries.
The department monitors operational policy and systems to ensure compliance with
Australian export controls and any additional importing country requirements. This is
achieved by undertaking inspection, audit and certification activities to ensure that the
production, storage, handling and transportation of seafood, dairy, egg and non-
prescribed goods intended for export comply with Australian export controls and any
additional requirements imposed by an importing country.
These activities serve to maintain the eligibility of commodities for export from
Australia and ensure that market access is maintained. The department also issues
permits, health certification and other documentation necessary to confirm
compliance with the export control orders and any additional importing country
requirements.
The collection bill is part of a legislative package that is designed purely as a cost
recovery mechanism establishing an appropriate legal structure for the recovery of
costs through the imposition of charges, as a levy, rather than a fee. The legislation
will sit alongside the existing cost recovery fees that apply to those activities provided
directly to persons who export or deal with exported regulated goods.
This legislative package is needed to recover costs under both the Export Control Act
and the AMLI Act. Existing export charging legislation is complex and allows for the
recovery of costs under the Export Control Act only.
This package of bills will ensure that appropriate cost recovery mechanisms are in
place for all export certification related activities. It provides modern drafting for
applying cost recovery levies that can be used by all agricultural exports. In time, the
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charges that sit in the existing export charging legislation could be transferred across
and will create a consistent charging structure for all export commodities.
The collection bill provides that the regulations will determine the manner in which
the export charges and late payment of fees are to be paid. This includes the time
when a specified export charges are to be paid, the liability of a person's agent to pay
charges on that person's behalf and the establishment of appropriate late payment fees
where charges are not paid in the time prescribed. Providing for such matters in the
regulations will allow the Minister for Agriculture to make appropriate and timely
adjustments when required.
The collection bill provides the Commonwealth with powers to refuse service in
relation to a person who is liable to pay a charge or late payment fee. The collection
bill also includes powers to suspend or revoke licences, permissions, permits, consent,
certificates, notices, registration or accreditation, or any other approval given under
the Export Control Act and the AMLI Act until payment is made. Unpaid charges and
late payment fees will be considered as debts to the Commonwealth and may be
recovered by action in a relevant court.
The collection bill sets out provisions for the remitting or refunding of charges or late
payment fees where the Secretary of the department (the Secretary) decides it is
appropriate to do so.
Human rights implications
List of rights engaged:
Article 14(1) of the ICCPR--rights to a fair hearing
Article 17 of the ICCPR--right to protection from arbitrary and unlawful
interferences with privacy
Articles 6(1) of the ICESCR--right to work
Right to a fair hearing
Article 14(1) of the ICCPR provides for a fair hearing before an independent court or
tribunal. This right applies to both civil proceedings (which can include merits review
by the Administrative Appeals Tribunal) and criminal charges. This right is limited by
preventing a person bringing a civil action for damages.
Clause 20 of the collection bill provides that those exercising powers under the
collection bill will have protection from civil proceedings. Civil proceedings involve
legal disputes between individuals based on one person claiming that the other has
failed in his or her legal duty. Protection from civil proceedings allows those required
under the collection bill to make decisions and take action to manage exports
appropriately, to do so without the fear of a civil proceeding being taken against them.
This clause is reasonable and necessary for the legitimate objective of protecting the
Commonwealth and its officers (protected persons) from civil proceedings flowing
from the performance of their duties under the collection bill, done in good faith.
Where the Commonwealth or a protected person causes damage or loss, and their
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actions are found to be not in good faith, the right to a fair hearing remains unlimited.
The right to seek judicial review also remains.
The right to a fair hearing is promoted by clauses 17 and 19. These clauses allow a
person subject to a decision under subclause 12(2) (suspension or revocation of an
export control instrument) to apply to the Secretary for a review of the decision. The
Secretary may review the decision personally, or cause the original decision to be
reviewed by a person who was not involved in making the original decision and who
is senior to the delegate who made the original decision. Clause 19 provides that a
person may apply to the Administrative Appeals Tribunal for a review of a decision
made under subclause 12(2) or a decision made by an internal reviewer under clause
17.
To the extent that the collection bill may engage with and limit rights to a fair hearing,
those limitations are reasonable, necessary and proportionate to achieve the legitimate
objective of the collection bill.
Assessment against civil penalties
The Parliamentary Joint Committee on Human Rights Practice Note 2 notes that civil
penalty provisions may engage criminal process rights under Articles 14 and 15 of the
ICCPR, regardless of the distinction between criminal and civil penalties in domestic
law. When a provision imposes a civil penalty, an assessment is required as to
whether it amounts to a 'criminal' penalty for the purposes of ICCPR.
A single civil penalty provision (subclause 16(3)) is proposed in the collection bill.
Clause 16 provides that the Secretary may require a person to give information or
documents relevant to the operation of the collection bill or an export charge. The
Secretary can only make such a requirement where he or she believes there are
reasonable grounds to do so. A person who commits the offence will be liable for a
penalty of 30 penalty units.
This provision should not be considered 'criminal' for the purposes of human rights
law. While a criminal penalty is deterrent or punitive, this penalty is aimed at
objectives that are regulatory or disciplinary in nature. The severity of the civil
penalty is considered low as it is pecuniary (rather than a more severe punishment like
imprisonment) and there is no sanction of imprisonment for non-payment of the
penalties.
Right to protection from arbitrary and unlawful interference with privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an
individual's privacy. This right may be subject to permissible limitations where those
limitations are provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving this purpose.
Clause 16 of the collection bill protects the ability of the Commonwealth to collect
charges related to the export of goods when they are due and payable by allowing it to
require a person to provide relevant information and documents, which may include
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personal information. Clause 21 of the collection bill provides the Secretary the
authority to require information in relation to an application for an internal review of a
decision to cease providing services and activities. The Secretary may refuse the
application for review in the absence of this information.
The inclusion of these provisions may engage and limit rights under Article 17 of the
ICCPR. The power to require information and documents is necessary to manage
compliance with the collection bill. To ensure the proper use of these provisions, the
exercise of these powers would only be available to the Secretary or a delegate at the
Senior Executive Service level. This provision has the test of reasonableness built in.
The operation of this test, and the level at which it is applied, ensures that the exercise
of powers under this clause would only occur when it is reasonable to do so.
These provisions are required to be exercised in compliance with the Privacy Act
1988 (Privacy Act). This means that the protections on the use and storage of personal
information that exist under the Privacy Act would apply to the collection and use of
personal information collected under the collection bill.
To the extent that the collection bill may engage with and limit rights protection from
arbitrary and unlawful interferences with privacy, those limitations are reasonable,
necessary and proportionate to achieve the legitimate objective of the collection bill.
Right to work
The right to work includes the right of everyone to the opportunity to gain his or her
living by work which he or she freely chooses or accepts.
Clause 12 of the collection bill provides for the suspension or revocation of export
control instruments such as a licence, permit or registration and the withdrawal of
services to recover unpaid export charges or fees. These provisions can only be
imposed when a person is liable to pay an export charge or late payment fee and
cannot be imposed arbitrarily. The powers under this clause reflect the need for the
Commonwealth to be able to cease providing services to persons who export or deal
with exported regulated goods when there are unpaid charges or late payment fees.
The Secretary may provide a written notice when a decision is made to suspend or
revoke an export control instrument and detail the review mechanism. A suspension
or withdrawal of service is only in place until the export charges or late fees are paid.
Potential engagement with the right to work under this clause is reflective of the
business-like arrangement between persons wishing to export goods and the
Commonwealth, and allows the Commonwealth to suspend or revoke a export control
instrument or cease providing services and activities when the user of those services
or activities has unpaid charges or late payment fees. This may have a consequence of
limiting a person's ability to perform the work which they have freely chosen.
The proportionate recovery of costs that are due and payable in relation to exports is a
reasonable and proportionate response to non-payment, even in circumstances where
the right to work is engaged.
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Such charges will be imposed on a reasonable basis-being charged only on a cost
recovery basis and proportionate. A decision to cease providing services and activities
is reviewable internally within the department and by the Administrative Appeals
Tribunal. To the extent that the collection bill may also limit rights to work, those
limitations are reasonable, necessary and proportionate to achieve the legitimate
objective of the collection bill.
Conclusion
The collection bill is compatible with Australia's human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that the collection
bill may also limit human rights, those limitations are reasonable, necessary and
proportionate to achieve the legitimate objective of the collection bill.
Minister for Agriculture
The Hon. Barnaby Joyce MP
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Notes on clauses
Part 1--Preliminary
Clause 1 Short title
This clause provides that the Bill, when enacted, may be cited as the Export Charges
(Collection) Act 2015
Clause 2 Commencement
This clause provides for the Bill to commence on the day after it receives Royal
Assent.
Clause 3 Simplified outline of this Bill
This clause provides a concise outline of the Bill.
Clause 4 Bill binds the Crown
This clause provides that the Bill will bind the Crown in each of its capacities. This
means that the Commonwealth and state and territory governments will be bound to
comply with the provisions of the Bill.
Clause 5 Extension to external territories
This clause provides that the Bill will extend to the Territory of Christmas Island and
the Territory of Cocos (Keeling) Islands. It also provides that the regulations to the
Bill may extend the Bill or any of its provisions to any other external territory that is
prescribed by the regulations.
This clause ensures that charges for the provision of export activities and the
administration of the export legislation can be imposed anywhere those activities are
provided including in the Territory of Christmas Island, the Territory of Cocos
(Keeling) Islands and any other external territory that is prescribed by the regulations.
Parliament will have the opportunity to scrutinise the extension of the Bill to an
external territory when the enabling regulations are tabled in each House of
Parliament.
Clause 6 Definitions
This clause provides definitions for the collection bill. Notes are provided below on
each definition.
Export charge
This definition provides that an 'export change' has the meaning of a charge imposed
under sections 7 or 11 of the Export Charges (Imposition--Customs) Act 2015 or the
Export Charges (Imposition--General) Act 2015 or the Export Charges (Imposition--
Excise) Act 2015.
Export control instrument
This definition provides that an export control instrument includes any one of the
following: a licence, permission, permit, consent, approval, certificate, notice, or a
registration or accreditation under the Export Control Act, a licence or approval under
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the AMLI Act or any other thing granted to issued to or held by the person under any
export legislation that relates to the export of goods that is prescribed in regulations.
Finance Minister
This definition provides the 'Finance Minister' is the Minister administering the
Public Governance, Performance and Accountability Act 2013.
Internal reviewer
This definition provides that an internal reviewer has the meaning given by paragraph
17(3)(b).
Late payment fee
This definition provides that a 'late payment fee' has the meaning given by subclause
12(1).
Protected person
This definition provides that a protected person is: the Secretary, a delegate of the
Secretary under clause 21, a person given a direction under subclause 12(5) or a
person who is given information or documents in accordance with a notice given
under subclause 16(1).
Part 2--Paying export charges
Clause 7 Simplified outline of this Part
This clause provides a concise outline of the Part.
Clause 8 Paying export charges
This clause provides that the regulations may prescribe the time when a export charge
is due and payable and prescribe the rules relating to the liability of agents to pay an
export charge and the recovery of the charge from the person by the agent.
Specifying such matters in regulations, as opposed to the Bill itself, provides the
department with sufficient flexibility to ensure that the time of payment and the
liability of agents is appropriate in all circumstances.
This will also allow requirements under the Bill to be amended as operational
practices evolve.
Clause 9 Notional payments by the Commonwealth
This clause provides that the Commonwealth is notionally liable to pay fees
prescribed in the regulations, including late payment fees. It empowers the Minister
for Finance to give written directions to give effect to this notional liability, including
for the transfer of money between or within Commonwealth financial accounts.
The intent for this clause is that, under the Minister for Finances' direction, the
department will have the legal authority to collect charges from agencies and other
Commonwealth bodies for export-related activities under the Export Control Act and
AMLI Act, and those bodies will have the legal authority to make payments to the
department for such activities.
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For clarity, the clause further states that the Finance Minister's direction has effect,
and must be complied with, despite any other Commonwealth law.
Subclause 9(2) states that a direction under this clause is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003. This is
declaratory of the law and not a substantive exemption from the Legislative
Instruments Act 2003.
For clarity, the term 'Commonwealth' in subclauses 9(1) and 9(2) includes a
Commonwealth entity (within the meaning of the Public Governance, Performance
and Accountability Act 2013) that cannot be made liable to taxation by a
Commonwealth law.
Part 3--Unpaid export charges
Clause 10 Simplified outline of this Part
This clause provides a concise outline of the Part.
Clause 11 Late payment fee
This clause allows the regulations to specify a late payment fee that is due and
payable if a export charge is not paid at or before the time the charge is due. A late
payment fee may relate to each day or part day that the export charge remains unpaid
and may also be held against one or more persons who is liable to pay a export
charge.
Late payment fees will be used to encourage compliant behaviour in persons who
export or deal with exported regulated goods to ensure that export charges are paid on
time and that the Commonwealth recovers costs for activities already provided.
Clause 12 Action by the Secretary if export charges or late payment fees are
unpaid
This clause provides the Secretary with the authority to suspend or revoke export
control instruments and/or give a direction not to provide to a person a range of
activities until receipt of an export charge or late fee which is due and payable.
Actions taken by the Secretary in relation to this clause are intended to encourage
compliance with the requirement to pay relevant export charges and/or late payment
fees. It is also necessary to ensure that the Commonwealth recovers costs for activities
already provided.
Subclause 12(2) provides the Secretary with the power to suspend or revoke an export
control instrument in relation to a person that has not paid an export charge or late
payment fee which is due and payable. An export control instrument includes a
licence, permission, permit, consent, approval, certificate, notice, or a registration or
accreditation under the Export Control Act, a licence or approval under the AMLI Act
or any other thing granted, issued or held by the person under any export legislation
that relates to the export of goods that is prescribed in regulations. This action, in
effect prevents a person from undertaking activities under the Export Control Act or
10
AMLI Act relating to the exportation of goods from Australia. A suspension of an
instrument is only in place until applicable export charges or late fees are paid.
The Secretary may give written notice, setting out the reasons for the decision and
rights of the person to have the decision reviewed. While operational procedures
would require that a notice be given to the person wherever possible, there may be
some situations where circumstances prevent the giving of such a notice.
Circumstances may include where a person cannot be found, but an export control
instrument remains valid. Failure to provide such a notice, irrespective of the
circumstances, does not invalidate the decision to suspend or revoke the export
control instrument.
Decisions that relate to the suspension or revocation of an export control instrument
under subclause 12(2) are reviewable by way of internal review (clause 17) or through
the Administrative Appeals Tribunal (clause 19).
This clause does not limit any other power of the Secretary under the Export Control
Act or AMLI Act to suspend or revoke the approvals or authorisations for any other
reason.
Subclause 12(5) provides the Secretary with the authority to give a direction not to
give a licence, permission, permit, consent, approval, certificate, notice, registration or
accreditation under the Export Control Act; a licence or approval under the AMLI
Act; or any other thing granted, issued or held by the person under any export
legislation that relates to the export of goods that is prescribed in regulations. This
clause has the same effect as subclause 12(2) in preventing a person from undertaking
activities under the Export Control Act and AMLI Act relating to the export of goods
from Australia. There is no requirement to issue a notice under this clause, as no
export control instrument has been suspended or revoked.
A direction under subclause 12(5) is not reviewable by way of internal review
(clause 17) or through the Administrative Appeals Tribunal (clause 19). In addition to
encouraging compliance with the Bill, this clause is intended to prevent the
department from directing resources toward providing activities and incurring costs
where a person has not paid the required export charge or late fee. The inclusion of a
review mechanism would unnecessarily add to the administrative burden of
administering the Bill and would be contrary to the purpose of this clause. Judicial
review is available to challenge any decisions made under this section.
Subclause 12(6) states that if a direction under subclause 12(5) is given in writing, the
direction is not an instrument within the meaning of section 5 of the Legislative
Instruments Act 2003. This is declaratory of the law and not a substantive exemption
from the Legislative Instruments Act 2003.
Clause 13 Recovery of export charges and late payment fees
This clause provides the Commonwealth with the ability to recover any export
charges and late payment fees that are due and payable through action in a relevant
court as a debt due to the Commonwealth.
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The recovery of export charges and late payment fees through a relevant court will
ensure the Commonwealth can recover costs for activities already provided.
Part 4--Miscellaneous
Clause 14 Simplified outline of this Part
This clause provides a concise outline of the Part.
Clause 15 Remitting or refunding export charges and late payment fees
This clause allows the Secretary to remit or refund fees if the Secretary is satisfied
there are circumstances that justify doing so. This clause ensures that fees can be
refunded or remitted. This may be done at the Secretary's initiative or on written
application by a person.
Providing the Secretary with the authority to remit charges is necessary to manage the
cost recovery for export arrangements. In circumstances where the arrangements
consistently recover costs in excess of the cost of the activities being provided,
remittance may be used to return that excess. Such arrangement would only remain in
place until the charges resulting in the over recovery were adjusted.
The decision to not remit charges and late payment fees is not subject to review.
Export charges and late payment fees are not arbitrarily imposed. In establishing a
charge, industry consultation is undertaken during the development of a Cost
Recovery Implementation Statement. This consultation provides those impacted by
the charge with the opportunity to influence how cost recovery arrangements are
designed and implemented. It also provides for a mechanism for the disclosure of
these arrangements.
The related imposition bills include a safeguard regarding the amounts of the charges
that can be authorised. Before the Governor-General makes regulations to set the
amount of charges, the Minister for Agriculture must be satisfied that the amount of
the charge is set at a level that is designed to recover no more than the
Commonwealth's likely costs. These arrangements are in place to ensure the
government will not intentionally inflate the costs of providing services. The cost and
administrative burden of providing for a review mechanism is also likely to be
significant.
Clause 16 Power to require information or documents
This clause provides that the Secretary may, by written notice, require a person to
give the person specified in the notice information or documents relevant to the
operation of the Bill or an export charge. The Secretary can only make this
requirement where he or she believes there are reasonable grounds to do so.
The notice must specify the information or documents the person is required to give
and the time frame for doing so. The timeframe for the giving of information and
documents must be at least 14 days after the person is given the notice.
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This will allow the Secretary to request information when it is relevant to the
operation of this Bill or a charge, for example, to request information about the
volume or weight of a consignment, in order for the appropriate charge to be invoiced.
A person who is given notice under this clause and fails to comply with the notice
commits an offence. The maximum penalty for a contravention is 30 penalty units.
Clause 17 Internal review of delegate's decision to suspend or revoke export
control instruments
This clause outlines the requirements for internal review of decisions made under
subsection 12(2) of this Bill.
A person may apply to the Secretary for review of a decision to suspend or revoke an
export control instrument in circumstances when a delegate of the Secretary made the
decision. Where the original decision was made by the Secretary, the decision is
reviewable by the Administrative Appeals Tribunal (see clause 19).
An application for an internal review must be in writing to the Secretary. The
application must be made within 30 days after the person was notified of the original
decision, or within a longer period if allowed by the Secretary. The application for
review must state the reasons why the review has been requested.
On receiving the application, the Secretary must either review the decision personally
or cause the reviewable decision to be reviewed by another person (the 'internal
reviewer'). The internal reviewer must be someone who was not involved in making
the original decision and who is in a more senior role than the person who actually
made the original decision. This separates the review from the original decision
making process and ensures the person who is undertaking the review has the
independence and authority to review the decision.
The internal reviewer may affirm, vary or set aside the decision. If the internal
reviewer sets aside the decision, they may make another decision they think is
appropriate. The decision of the internal reviewer is known as the 'decision on
review'. The decision on review takes effect on the day specified in the decision on
review, or if the day is not specified, the day the decision on review was made.
After a decision on review is made under this clause, the internal reviewer must give
the applicant a written notice containing the terms of the decision, the reason for the
decision and notice of the applicants rights to have the decision reviewed by the
Administrative Appeals Tribunal. This notice requirement ensures that a person is
able to understand the decision and is aware of his or her rights.
Failure to provide this notice does not affect the validity of the decision. As decisions
made under the Bill provide for the collection of export charges necessary to support
Australia's system for the control of exported goods it is not appropriate for such
decisions to be found invalid because notice was not provided to the person whose
interests are affected by the decision.
Clause 18 Secretary may require further information from review applicants
This clause enables the Secretary to require the person who made an application for
review under clause 17, to provide further information about the application. This
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request must be made by written notice. This clause also allows the Secretary to
refuse to consider the application until the information is provided.
This will enable the Secretary to obtain additional information to assist in reviewing
the decision, where required.
Clause 19 Review by the Administrative Appeals Tribunal
This clause enables a person who is not satisfied with a decision made by the
Secretary under subclause 12(2) to suspend or revoke an export control instrument. It
also enables a person who is not satisfied with a decision made by a delegate of the
Secretary in relation to subclause 12(2) as part of an internal review (clause 17).
An application for review can only be made by, or on behalf of, a person that a
decision under subclause 12(2) or clause 17 was made. This means only a person or
their representative that would have had a material impact by the decision can request
for it to be reviewed, rather than a person whose interests may be affected by the
decision.
The rational for this is that a person who has had an export control instrument
suspended or revoked should have the right to seek administrative review. It would
however, be administratively burdensome to allow any member of the public who
may be affected by, or interested in, the decision (because they can no longer
purchase the exported good as a result of the suspension or revocation of that
instrument) to apply for review of the decision.
Clause 20 Protection from civil proceedings
This clause provides that the Commonwealth or a protected person exercising powers
under the Bill will have protection from civil proceedings for anything done, or
omitted to be done, in good faith. Civil proceedings involve legal disputes between
individuals based on one person claiming that the other has failed in his or her legal
duty. Protection from civil proceedings allows those required under the Bill to make
decisions and take action to manage exported goods appropriately, and to do so
without the fear of civil proceedings being taken against them.
The term 'in good faith' means without malice or without intent to defraud. Protection
from civil proceedings does not extend to criminal offences-for example, theft or
intentional destruction of documents or property.
Clause 21 Delegations by Secretary
This clause provides that the Secretary may delegate in writing any functions or
powers that are conferred on the Secretary to employees of the department holding, or
acting in, the position of a Senior Executive Service employee (as defined in the Acts
Interpretation Act 1901).
This is to ensure that decision-making powers under this bill are carried out efficiently
and effectively in an operational environment where the Secretary may not have the
capacity to undertake all functions and powers conferred upon him or her by this bill.
Subclause 21(2) provides an additional level of assurance that powers exercised by
the delegate are exercised appropriately and consistently.
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Clause 22 Regulations
This clause provides the ability for the Governor-General to make regulations
prescribing matters required or permitted by the Act, or necessary or convenient to be
prescribed for carrying out or giving effect to this Bill. This will allow for more
detailed and specific aspects of the Bill relating to the operation of provisions to be
included in regulations instead of the Bill.
This clause also provides that the regulations may also prescribe the giving of a notice
or direction, or the making of any other requirement, under this Bill and the manner in
which any notice, direction, requirement or other instrument granted, given or made
under this Bill may be produced to a person or body.
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