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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HORSE DISEASE RESPONSE LEVY COLLECTION BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by Authority of the Minister for Agriculture, Fisheries and Forestry,
Senator the Hon. Joe Ludwig)
HORSE DISEASE RESPONSE LEVY COLLECTION BILL 2011
OUTLINE
1. The purpose of this Bill is to give the Commonwealth authority to collect and
administer levies on manufactured horse feed and worm treatments for horses.
2. There are two companion Bills relating to this Bill: the Horse Disease Response
Levy Bill 2011, which imposes the levies, and the Horse Disease Response Levy
(Consequential Amendments) Bill 2011, which allows for funds raised by the levies
to be appropriated to the Australian Animal Health Council (also known as Animal
Health Australia). All three Bills are required to establish the levy funding
mechanism requested by the horse industry and enable it to meet its obligations as
an Emergency Animal Disease Response Agreement (EADR Agreement) signatory.
All three Bills are not retrospective in effect.
3. This Bill provides for funds raised through the levies to initially flow to the
Commonwealth's Consolidated Revenue Fund and subsequently be appropriated to
Animal Health Australia, which will manage the funds on behalf of the horse
industry. It also includes provision for the Commonwealth to recover the costs of
collecting and administering the levies.
4. Included in this Bill are provisions to impose penalties for unpaid levies and to
allow the remission of any penalties for late payments. The Bill also allows for the
Commonwealth to recover levies that are due and to make refunds when necessary.
This is consistent with provisions in other existing levy collection legislation.
5. This Bill will also allow information and documents to be collected as specified by
the Commonwealth, and includes standard entry, search and seizure powers. It also
includes a strict liability offence provision should a person fail or refuse to comply
with a request for information. The strict liability offence provision is necessary to
ensure that the Commonwealth's levy collection requirements, as outlined in the
Bill, are adhered to. These provisions are consistent with other existing levy
legislation.
6. This Bill includes provision for periodic review of the levy mechanisms. It requires
the Minister to ensure that the mechanisms are reviewed every 5 years, unless the
levies are active at the time the review is due. If this occurs, the Minister has the
option to postpone the review until the levies are set back to zero. The Minister will
seek advice from affected parties before determining whether the review should be
postponed.
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FINANCIAL IMPACT STATEMENT
7. There is no financial impact on the Commonwealth unless an emergency animal
disease outbreak affecting horses occurs, and it is agreed that a national response is
required. Should such an event occur, there will be a financial impact on the
Commonwealth, in that it will initially meet the horse industry's costs of the
response under the EADR Agreement. However, this money will be repaid through
funds raised by the levies, and will include recovery of the Commonwealth's costs
in collecting or recovering the levies.
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HORSE DISEASE RESPONSE LEVY COLLECTION BILL 2011
NOTES ON CLAUSES
Introductory note
Emergency animal disease response levies imposed on livestock other than horses are
collected under the authority of the Primary Industries Levies and Charges Collection
Act 1991. This Bill contains similar provisions so that all industries with an emergency
animal disease response levy in place are treated with consistency.
Clause 1: Short Title
This clause is a formal provision specifying that the short title of the Act may be cited
as the Horse Disease Response Levy Collection Act 2011.
Clause 2: Commencement
The commencement date in this clause provides that sections 1 and 2 of the Act will
commence when the Act receives Royal Assent, and that sections 3 to 59 will
commence on the start of the day the Act receives Royal Assent or the commencement
of the Horse Disease Response Levy Act 2011, whichever happens later. However, this
Act will not commence if the Horse Disease Response Levy Act 2011 does not
commence.
Clause 3: Definitions
Authorised person - this definition refers to a person appointed by the Secretary of the
Department to be an authorised person for the purposes of this Bill.
Damage - this definition clarifies that damage in relation to data includes erasure of
data or addition of other data.
EADR Agreement - this definition is a reference to the government and livestock
industry cost sharing deed in respect of emergency animal disease responses, also
known as the Emergency Animal Disease Response Agreement. The EADR Agreement
commenced in March 2002 and is an agreement between the Commonwealth, state and
territory governments and livestock industries on how to manage the cost and
responsibility for an emergency response to an animal disease outbreak. The EADR
Agreement is available on Animal Health Australia's website at
www.animalhealthaustralia.com.au.
Late payment penalty - this definition refers to a penalty imposed on a levy that is
unpaid after it is due for payment.
Levy - this definition refers to levy on manufactured horse feed and worm treatments
for horses as defined in the Horse Disease Response Levy Act 2011.
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Levy law - this definition refers to Part 2 of this Bill, the regulations, the Horse Disease
Response Levy Act 2011 and the regulations under that Act.
Manufactured feed - this definition was developed in conjunction with the horse
industry. It indicates what is considered manufactured horse feed for the purposes of
this Bill. This definition also allows for processes to be prescribed by regulations. This
is to ensure that this Bill has the flexibility to recognise manufactured horse feed as feed
intended for horses that is processed in ways that may be developed or used in the
future.
Monitoring powers - this definition refers to the powers given to an authorised person
under sections 14, 15 and 16 of this Bill. These powers are necessary to enable an
authorised person to carry out functions and duties as required by this Bill. This
includes allowing an officer of the Commonwealth to enter and search premises,
vehicles, vessels and aircraft, by consent of the occupier or under warrant, and, if
necessary, take possession of records or other things relating to the administration of
payment of levies. Removal of documents is usually a last recourse where examination
of the material on-site is not possible due to its volume or complexity. The provisions
for search, entry and seizure are broadly consistent with those for other livestock levies
and are included in the Bill to ensure all industries with an emergency response levy in
place are treated equally.
Monitoring warrant - this definition refers to a warrant issued by a magistrate to an
authorising person in relation to premises, as specified in section 33.
Person assisting - this definition refers to a person assisting an authorised person in
exercising powers or performing functions of duties under this Bill, as specified in
section 17.
Premises - this definition specifies what is considered to be premises for the purposes
of this Bill.
Secretary - this definition refers to the Secretary of the Department that is responsible
for administering this Bill.
Worm treatment - this definition was developed in conjunction with the horse industry.
As these types of veterinary chemical products cannot be used in Australia without
being approved by the Australian Pesticides and Veterinary Medicines Authority for use
to treat internal parasites in horses and being either registered chemical products or
registered listed chemical products under the Agvet Codes, this definition is intended to
ensure that all such products are captured under this Bill.
Clause 4: This Act binds the Crown
The clause provides that this Bill binds the Crown in each of its capacities, but does not
make the Crown liable to be prosecuted for an offence.
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Part 2 - Colletion of levy
Clause 5: When levy is due for payment
This clause indicates that the due date/s for levy payments to the Commonwealth will be
set by regulations.
Clause 6: Recovery of levy etc.
This clause prescribes that levy payments and associated late payment penalty can be
recovered as debts to the Commonwealth.
Clause 7: Penalty for late payment of levy
This clause prescribes that a levy payer who pays levy after the due date will incur a late
payment penalty of two per cent per month, compounding, on any outstanding levy and
penalty until the levy debt is paid.
Clause 8: Remission of late payment penalty
This clause provides that the Secretary will have the authority to remit a late payment
penalty in part or in full. This is a discretionary decision but remission requests would
be considered against a set of criteria to ensure the consistent treatment of such requests.
Clause 9: Review of refusal to remit late payment penalty
This clause provides that a levy payer who has had a request for the remission of
penalty refused by the Secretary can seek a review of the Secretary's decision. If the
levy payer is not satisfied with the outcome of the review they can seek a review of the
review decision by the Administrative Appeals Tribunal.
Clause 10: Overpayments of levy and late payment penalty
This clause provides for a refund of an overpayment of levy or penalty by either the
Commonwealth or Animal Health Australia. If the Commonwealth has paid the refund
and has also paid to Animal Health Australia an amount equal to the overpayment, the
Commonwealth can recover that amount from Animal Health Australia.
Part 3 - Investigation
Division 1 - Requirement to give information of documents
Clause 11: Powers to seek information or documents
This clause provides for the Secretary to give a person written notice to provide
information relevant to the operation of this Act, as specified in the notice and within a
reasonable period. The notice can also request verification of this information by
statutory declaration. This power would be used to identify whether that person, or
another person, has a levy liability, the amount of that liability and any other
information that would ensure compliance with is relevant to the operation of this Bill.
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Clause 12: Offences of failing to give information, document or return
This clause provides for commission of an offence and a financial penalty (60 penalty
units) to be imposed on a person who refuses or fails to give information, a document or
a return in response to a notice under clause 11. Clause 12 is consistent with similar
provisions in the Primary Industries Levies and Charges Collection Act 1991.
The offence created is an offence of strict liability. Setting the offence as one of strict
liability complies with the principles specified in section 4.5 of the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Clause 12 also provides that a response to a notice under clause 11 may be used to
prove an offence:
· under clause 12, and/or
· Division 137 of the Criminal Code (providing false or misleading information or
documents).
The privilege to protect against self-incrimination is abrogated in relation to a person
complying with a notice issued under clause 11. Unless this privilege against self-
incrimination is abrogated, a person may claim the privilege to resist producing
documents or giving information that may be relevant to determining accurately the
person's liability for levy or late payment penalty.
Clause 12 does provide for a defence of "reasonable excuse" in relation to a person not
complying with a notice under clause 11.
Division 2 - Monitoring by authorised persons
Subdivision A - Monitoring powers
Clause 13: Authorised person may enter premises by consent or under
warrant
This clause allows an authorised person to enter premises by consent or under warrant.
The Commonwealth requires this power to undertake activities, including routine record
inspections, to ensure levy payers' compliance with the Bill.
Clause 14: Monitoring powers of authorised persons
This clause grants an authorised person monitoring powers, including seizure powers.
These powers are necessary to enable the Commonwealth to undertake activities to
ensure levy payers comply with the Bill. These provisions are consistent with similar
provisions in the Primary Industries Levies and Charges Collection Act 1991.
Clause 15: Operating electronic equipment
This clause supplements clause 14 by providing further information on the operating of
electronic equipment by authorised persons while exercising monitoring powers.
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Clause 16: Securing evidence of the contravention of a related provision
This clause allows an authorised person to secure evidence in certain circumstances
where the authorised person believes the evidence could be concealed, lost or destroyed
before a warrant to seize the evidence is obtained. This power is needed in addition to
the seizure powers in clause 14 as a situation may arise where an authorised person may
need to merely secure evidence, or may need to secure evidence before seizing it.
Clause 17: Persons assisting authorised persons
This clause provides for an authorised person to be assisted by other persons whose
powers would be considered for all purposes to have been exercised by the authorised
person. This will allow the authorised person, in exercising their powers, to seek
assistance from other persons as necessary. Subclause (5) of this clause is included to
assist readers, to clarify that such an instrument is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
Clause 18: Authorised person may ask questions and seek production of
documents
This clause provides for an authorised person who enters premises to ask questions and
seek the production of documents to assist with determining compliance with the levy
legislation. If the authorised person enters premises under a warrant, a person commits
an offence if they do not comply with the authorised person's request. A penalty of 30
units applies to this offence.
Subdivision B - Obligations and incidental powers of authorised persons
Clause 19: Consent
This clause provides that an authorised person must inform an occupier of premises that
the occupier can refuse consent to enter premises and that if consent is withdrawn at any
time, the authorised person must leave the premises.
Clause 20: Announcement before entry under warrant
This clause sets out the announcement requirements for an authorised person before
they enter premises under a monitoring warrant, including the presentation of their
identity card and giving any persons at the premises the opportunity to allow entry to
the premises.
If the unauthorised person is unable to make an announcement prior to entering
premises, they must show their identity card to an occupier or other person as soon as
practicable.
This clause does not apply if an authorised person believes on reasonable grounds that
immediate entry to the premises is warranted, either to ensure the safety of a person or
to ensure the execution of the warrant is not frustrated.
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Clause 21: Authorised person to be in possession of warrant
An authorised person executing a monitoring warrant must be in possession of the
warrant or a copy of the warrant.
Clause 22: Details of warrant etc. to be given to occupier
If an occupier of premises, or another person who represents the occupier, is present at
the premises when a monitoring warrant is executed, the authorised person must, as
soon as practicable, provide a copy of the warrant to the occupier or other person and
inform them of their rights and responsibilities.
Clause 23: Expert assistance to operate electronic equipment
This clause provides for electronic equipment, at premises to which a monitoring
warrant applies, to be secured by an authorised person if expert assistance is required to
operate electronic equipment that may hold data relevant to determining compliance
with levy law. This clause sets conditions on the length of time that equipment may be
secured and for notices to the occupier of the premises about this action.
Clause 24: Compensation for damage to electronic equipment
This clause provides for the Commonwealth to pay reasonable compensation to the
owner of electronic equipment in certain circumstances if the equipment, data or
associated programs are damaged or corrupted.
Subdivision C - Occupier's rights and responsibilities
Clause 25: Occupier entitled to observe execution of warrant
This clause provides that the occupier of a premises to which a monitoring warrant
relates, or their representative, may observe the execution of the warrant, but that this
right ceases if the person impedes that execution. This entitlement does not prevent the
execution of a warrant at more than one premises at the same time.
Clause 26: Occupier to provide authorised persons with facilities and
assistance
This clause provides that the occupier of a premises to which a monitoring warrant
relates, or their representative, must provide an authorised person, or a person assisting
the authorised person, with all reasonable facilities and assistance for the exercise of
their powers. A penalty of 30 penalty units applies if the occupier or their representative
does not comply with this provision.
Subdivision D - General provisions relating to seizure
Clause 27: Copies of seized things to be provided
This clause provides that where an authorised person seizes certain things that can be
readily copied, the occupier of the premises, or their representative, may request that
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they are provided with a copy of the thing. The authorised person must comply with the
request as soon as practicable unless complying with the request would constitute an
offence against Commonwealth law.
Clause 28: Receipts for seized things
This clause provides that an authorised person must provide a receipt for things that are
seized under this Bill.
Clause 29: Return of seized things
This clause provides for seized things to be returned under certain circumstances or
within certain timeframes to the person from whom they were seized, or to the owner if
the first person is not entitled to possess the thing. Exceptions apply if the return would
be contrary to a court order, or the thing is forfeited or forfeitable to the
Commonwealth, or is the subject of an ownership dispute. The timeframes may not
apply in certain circumstances.
Clause 30: Magistrate may permit a thing to be retained
This clause provides for the Secretary to apply to a magistrate to retain a seized thing if
it is required as evidence in proceedings relating to levy law. The magistrate may order
that the thing be retained for a period of no more than three years.
Clause 31: Disposal of things
This clause provides that where the Secretary has taken reasonable steps to return a
seized thing but has been unable to do so, the Secretary may dispose of the thing.
Clause 32: Compensation for acquisition of property
This clause provides that if the disposal of things under clause 31 would result in the
acquisition of property other than on just terms, the Commonwealth is to pay reasonable
compensation to the person. This clause also provides for the person to institute court
proceedings if the Commonwealth and the person do not agree on the amount of
compensation.
Subdivision E - Monitoring warrants
Clause 33: Monitoring warrants
This clause provides that an authorised person may apply to a magistrate for a warrant
in relation to premises. This clause sets out when a warrant can be issued and the
required contents of the warrant.
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Subdivision F - Powers of magistrates
Clause 34: Powers of magistrates
This clause provides that the powers conferred on a magistrate under this Bill are
conferred in a personal capacity. It also provides that a magistrate exercising a power
under this Bill has the same protection and immunity as if the magistrate were
exercising that power as a member of the court of which they are a member.
Part 4 - Regular review of levy
Clause 35: Minister to ensure levy is reviewed every 5 years
This clause requires the Minister to ensure that the levy mechanisms are reviewed every
5 years, unless the levies are active at the time the review is due. If this occurs, the
Minister has the option to postpone the review until the levies are set back to zero. The
Minister will seek advice from affected parties before determining whether the review
should be postponed.
Part 5 - Miscellaneous
Clause 36: Disclosure of information
This clause provides for certain information to be released to certain bodies, including
horse industry bodies that are a party to the EADR Agreement, Animal Health Australia
and other persons as allowed by the Secretary. Examples of other bodies include
Commonwealth agencies, such as the Australian Bureau of Statistics or bodies
representing levy payers, such as a feed manufacturers' representative body.
Information that could be released could relate to amounts of levy received or
receivable by the Commonwealth or the names and contact details of levy payers. Any
information released cannot identify how much levy an individual levy payer has paid
or is required to pay. These provisions are intended to be consistent with similar
provisions in the Primary Industries Levies and Charges Collection Act 1991.
Clause 37: Authorised persons
This clause provides that the Secretary may appoint in writing a person, who is
appointed or engaged under the Public Service Act 1999, as an authorised person.
The Secretary must be satisfied the person has suitable qualifications and experience to
properly exercise the powers of an authorised person and that person must comply with
any directions by the Secretary. This clause is designed to assist readers and the
appointment is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
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Clause 38: Identity cards for authorised persons
This clause provides that an authorised person must be issued an identity card by the
Secretary. The person must carry the card when exercising their powers. If the person
ceases to be an authorised person, they must return the identity card. An offence of one
penalty unit will apply if the card is not returned other than for the reason that it was lost
or destroyed. Strict liability applies to this offence in order to deter people from
misrepresenting themselves as authorised persons.
Clause 39: Delegation
This clause provides for the Secretary to delegate in writing all or any of his or her
powers under the Bill or its regulations to an APS employee in the Department. Such a
delegate is subject to the directions of the Secretary. This clause is designed to assist
readers and the delegation is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003. This authority to delegate is separate from the power
to authorise under clause 37.
Clause 40: Regulations
This clause provides for the Governor-General to make regulations for the purposes of
this Bill. The regulations may deal with matters relating to: the payment of levy and late
payment penalty; record keeping requirements for people required to pay levy;
requirements for people to submit returns, information or documents for the purposes of
this Bill and for this information to be verified by statutory declaration; and the
application of penalties not exceeding 10 penalty units for offences against the
regulations.
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