Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PRIMARY INDUSTRIES LEVIES AND CHARGES COLLECTION BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
Senator the Hon. Murray Watt)
PRIMARY INDUSTRIES LEVIES AND CHARGES COLLECTION BILL 2023
GENERAL OUTLINE
The Primary Industries Levies and Charges Collection Bill 2023 (Collection Bill) forms part of a
package to modernise the agricultural levies legislative framework. The Collection Bill would
replace the Primary Industries Levies and Charges Collection Act 1991 and set up the
framework for the collection of levies and charges under the agricultural levy system. The
Collection Bill would establish a streamlined and modernised collection framework that is easier
for participants to understand and comply with. The Collection Bill would also provide access to
more modern and flexible compliance and enforcement tools. This would ensure agricultural
levies and charges are collected effectively and compliance costs are kept as low as possible.
The Collection Bill, in combination with the following Bills, would provide the overarching
legislative framework for the national agricultural levy system:
• Primary Industries (Excise) Levies Bill 2023 (Excise Bill)
• Primary Industries (Customs) Charges Bill 2023 (Customs Bill)
• Primary Industries (Services) Levies Bill 2023 (Services Bill), and
• Primary Industries Levies and Charges Disbursement Bill 2023 (Disbursement Bill).
The agricultural levy system is a long-standing partnership between industry and the Australian
Government to facilitate industry investment in strategic activities. The system has been in place
since 1989. Excise levies and customs charges are collected from farmers, producers, processors
and exporters. The Department of Agriculture, Fisheries and Forestry publishes levy guidelines
on its website to support agricultural, fisheries and forestry industries through the process of
developing a proposal to establish or amend an agricultural levy or charge. 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. 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. These levy recipient bodies are colloquially
known as research and development corporations (RDCs). A target of investment in R&D
equivalent to 1% of an industry's gross value of production (GVP) was identified as the desired
level of investment when the legislative framework first was established in 1989. This target is
still supported by the GVP limit on matching funding today.
Over time, the agricultural levies legislation has become overly complex, duplicative, and
inconsistent. There are more than 50 pieces of legislation governing over 110 levies across over
75 commodities and 18 levy recipient bodies. There are also some redundant and out of date
provisions.
2
A 2018 review of the agricultural levies legislation found the legislative framework serves the
objectives of the agricultural levy system and is necessary for a successful industry-government
arrangement. Despite this, the review found the current legislation is ineffective in meeting
industries' needs now and in the future.
The package of Bills would modernise the agricultural levies legislative framework to provide
contemporary, flexible and efficient legislation that would better support industries' needs in the
future.
The Collection Bill would enable all levies and charges enabled by the Excise, Customs and
Services Bills to be collected and would not significantly change how individual levies and
charges are collected. The Collection Bill would:
• replace the Primary Industries Levies and Charges Collection Act 1991 with a framework
that will be easier for participants to understand and comply with.
• clarify the roles of participants in the system, using clear and consistent terminology such
as 'levy payer', 'charge payer' and 'collection agent'.
• provide for collection rules that would set out the specific obligations of levy payers,
charge payers and collection agents in relation to each commodity.
• trigger monitoring, investigation, and enforcement powers of the Regulatory Powers
(Standard Provisions) Act 2014. This would bring the levy system in line with other
Commonwealth regulatory schemes.
• introduce infringement notices and civil penalties. These measures would allow for
responses that are proportional to the seriousness of the conduct. This would support a
flexible compliance approach that reserved criminal penalties for only the most serious
offences.
• provide for the appropriate use and disclosure of information, while ensuring effective
safeguards for sensitive information.
CONSULTATION
The development of the new agricultural levies legislation has been informed by extensive
consultation with industry groups, levy payers, collection agents, and levy recipient bodies:
• 2017-18: The department reviewed the levies legislative framework and undertook
targeted consultation with approximately 70 stakeholder groups.
• 2019-20: The department released the 'Streamlining and modernising agricultural levies
legislation - early assessment regulation impact statement' for public consultation.
• 2021-22: The department conducted further consultation with industry representatives
and bodies that receive levy funding (industry-owned and statutory RDCs, Animal Health
Australia (AHA) and Plant Health Australia (PHA). This included targeted consultation
3
with primary industry representative bodies about industry-specific levies and charges.
The department spoke to approximately 70 industry representative bodies in relation to
the intended approach to transferring their existing excise levies and customs charges into
the draft legislation. The department also wrote to around 7,500 collection agents to
provide information about the proposed approach to the new legislative framework.
• 2023: Public consultation on the draft agricultural levies legislation.
Consultation on the new agricultural levies legislation also occurred with relevant
Commonwealth agencies during the development of the Bills, including the Attorney-General's
Department, the Australian Bureau of Statistics, the Australian Public Service Commission, the
Department of Finance, the Department of the Prime Minister and Cabinet, the Federal Court and
the Federal Circuit and Family Court of Australia, the Office of the Australian Information
Commissioner and the Department of the Treasury.
FINANCIAL IMPACT STATEMENT
The Collection Bill is estimated to have no net financial impact on the Australian Government
Budget. The measures in the Collection Bill allow for the continuation of collection
arrangements for the agricultural levy system. The Collection Bill does not change existing levy
rates or impose new or additional levies.
Costs associated with the administration of levies are cost-recovered from industry by the
department. Costs associated with planning and implementation of the modernised levies
legislation, including any costs for IT system changes would be absorbed within the
department's budget allocation.
IMPACT ANALYSIS
The Impact Analysis (OBPR22-03525) is attached to the combined Explanatory Memorandum
for the Imposition Bills.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in clause 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
The full statement of compatibility with human rights is attached to this explanatory
memorandum (Attachment A).
4
ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS
Term, acronym or abbreviation Meaning
ABARES Australian Bureau of Agricultural and
Resource Economics and Sciences
ABS Australian Bureau of Statistics
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
Customs Act Primary Industries (Customs) Charges Act
Disbursement Act Primary Industries Levies and Charges
Disbursement Act
Excise Act Primary Industries (Excise) Levies Act
Guide to Framing Commonwealth Offences the Guide to Framing Commonwealth
Offences, Infringement Notices and
Enforcement Powers published by the
Attorney-General's Department.
PIRD Act Primary Industries Research and
Development Act 1989
PILCC Act Primary Industries Levies and Charges
Collection Act 1991
PILCC Regulations Primary Industries Levies and Charges
Collection Regulations 1991
Privacy Act Privacy Act 1988
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act
2014
Services Act Primary Industries (Services) Levies Act
5
NOTES ON CLAUSES
Rules made under the Collection Bill
1. The text set out below provides information, in addition to that included in the relevant notes
on clauses, about the power to make rules under section 59 of the Primary Industries Levies
and Charges Collection Bill 2023 (the Collection Bill). This information has been provided
to assist the reader and should be read in conjunction with the detailed notes on the clauses
that refer to these matters.
Power of the Secretary to make rules
2. The Collection Bill would set up the framework for the collection of levies and charges under
the agricultural levy system. The Collection Bill would enable the Secretary to make rules by
legislative instrument that, amongst other matters, set out the detailed requirements for the
collection of levies and charges. These rules would be made under section 59 of the
Collection Bill. This clause would allow the Secretary to prescribe matters that are:
• required or permitted by the Act to be prescribed by the rules; or
• necessary or convenient to be prescribed by the rules in order to carry out or give
effect to the Act.
3. These provisions set the parameters of the Secretary's rule-making power and may also
provide examples of the kinds of things for which the Secretary may make provision for in
the rules.
4. There are a number of other provisions in the Collection Bill that would require or permit the
Secretary to make rules:
• Rules might be made that prescribed a class of persons employed or engaged by the
Commonwealth or a Commonwealth body corporate as 'entrusted persons' for the
purposes of information management in Part 5 of the Collection Bill (section 4).
• Rules might be made that extended the Act and any provisions of the rules to an
external territory prescribed by the rules (section 6).
• Rules may prescribe that an entrusted person may disclose relevant levy/charge
information to a Commonwealth entity for the purposes of assisting the entity to
undertake agricultural research or develop agricultural policy or both (section 29).
• Rules might prescribe details relating to the production or processing of an animal,
plant, fungus or algal product for the purposes of enabling that information to be
shared with certain entities (section 32).
• Rules might be made that enabled specified classes of persons to use or disclose
specified relevant levy/charge information for specified purposes (section 41).
6
• Rules might prescribe additional decisions that a person could ask the Secretary to
reconsider (section 48).
5. The rules would set out the detailed operational requirements for the collection of levies and
charges, including:
• frequency of payment
• due dates
• who must give returns
• who must keep records.
6. Due to the volume of levied and charged commodities, it is administratively efficient for the
rules to contain the collection details for each levy and charge. The rules for each commodity
need to be different to each other as they are tailored to the specific characteristics of each
levy or charge. Supply chains across different commodities and sectors, such as livestock,
horticulture, cropping, forestry and fisheries, differ due to such factors as seasonality,
processing or multiple actors in the sector or supply chain. The rules would provide the
necessary flexibility to set operational requirements that meet industry needs.
7. Setting operational details in rules would also ensure that levy and charge details could be
efficiently amended when needed. A key concern consistently raised by stakeholders is that
the current levies legislation, with many levy settings in primary legislation, cannot adapt to
changing circumstances.
8. When there are changes to commodities or industries, rules can be more easily amended in
response to a request by industry. Supply chains or operational practices may change due to
new technologies or business practices. The ability to adjust or remake rules would enable
operational needs to be more responsive to industry requests. This would ensure the effective
and efficient collection of levy and charge.
9. For example, collection details for an excise levy could be adapted where a product that was
previously only processed outside Australia is now being processed inside Australia. If the
imposition regulations were amended to include processing as an imposition point, the
collection rules would be updated to identify processors as collection agents and clearly set
out their obligations.
10. It is appropriate that the Secretary is given the power to set the requirements for the
collection of levies and charges in the rules due to their technical and administrative nature
and the need to respond quickly to changes.
Parliamentary oversight
11. The rules are subject to Parliamentary oversight in accordance with the Legislation Act 2003
(Legislation Act), and the rules and any changes to them made by the Secretary will need to
7
be tabled in each House of Parliament within six sitting days of registration. The rules will be
subject to disallowance by either house, and sunsetting.
Compliance and enforcement
12. The Collection Bill will include a modernised compliance and enforcement framework. It
will include a range of mechanisms aimed at ensuring that levy payers, charge payers or
collection agents give returns or information under the rules and make and keep records in
accordance with the rules. The Collection Bill would also provide new enforcement tools that
would provide greater flexibility for the management of non-compliance.
13. The Collection Bill would trigger powers under the Regulatory Powers Act. This would
ensure that the available compliance and enforcement powers are consistent with other
Commonwealth regulatory schemes, which would provide greater certainty and consistency
for participants in the agricultural levy system.
Monitoring and investigation powers
14. The Collection Bill would trigger the monitoring and investigation powers in the Regulatory
Powers Act. This will give authorised officers access to the monitoring and investigatory
powers available under that Act. These include powers to enter premises (by consent or
warrant) and exercise monitoring or investigation powers. These powers will ensure that
authorised officers are able to effectively monitor compliance and investigate suspected
contraventions of a provision of the Collection Bill or rules in a way that is consistent with
other Commonwealth regulatory agencies.
15. The Collection Bill would also give additional monitoring powers to the Secretary and
departmental officers to, by notice in writing, require a person to provide information
relevant to the operation of the Act or rules. This is a compliance tool carried forward from
the PILCC Act. It would be retained as it is an effective method for seeking information from
participants in the levy system to monitor compliance and may avoid further investigation.
16. This additional power is appropriately adapted to enable departmental officers to enforce the
regulatory scheme set up by the Collection Bill and ensure that it achieves its objects.
Sanctions for non-compliance
17. The Collection Bill will provide for a graduated set of sanctions to respond to non-
compliance. The range of compliance and enforcement powers in the Collection Bill is
intended to allow the department to choose between different enforcement options and ensure
that sanctions are appropriate and proportionate to the non-compliance.
18. The department will continue to use communication and education as the primary mechanism
for responding to non-compliance. For more serious cases, the Collection Bill will also allow
for a range of regulatory sanctions for non-compliance. These include criminal penalties,
civil penalties, infringement notices and injunctions. Further information about the role of
criminal offences and civil penalties in the Collection Bill is set out below.
8
Criminal offences
19. The Collection Bill would contain a range of criminal offence provisions that are necessary
to deter and punish non-compliance.
20. The agricultural levy system depends on participants contributing equitably to benefit from
levy funded activities. Contraventions of the offence provisions in the Collection Bill may
result in the non-payment of levies and an inequitable payment of levies. Such conduct may
undermine the collective investment of levied industries in R&D, marketing, biosecurity
activities, biosecurity responses and residue testing activities. The consequence of non-
compliant behaviour by one person may therefore impact the available funds for investment
by the industry as a whole. The offences provide an effective deterrent to, and punishment
for, conduct that may undermine the agricultural levy system. In this sense, the offences in
the Collection Bill are crucial to maintaining productivity, competitiveness and the
sustainability of the agricultural sector.
21. The Collection Bill also contains offences in relation to the unauthorised use or disclosure of
information collected for the administration of the levy system. These offences reflect the
expectation from levy payers, charge payers and collection agents that their information will
be managed in a responsible manner.
22. The penalties for the offence provisions take into account the gravity of the offence and the
serious consequences that may flow from non-compliance. The penalties have been set to
deter non-compliance and provide proportionate and appropriate action for a person's
wrongdoing and are line with the Guide to Framing Commonwealth Offences.
23. The Criminal Code would apply in relation to the Bill where a person may commit an
offence if the person makes a false or misleading statement in an application or provides
false or misleading information or documents under sections 137.1 and 137.2 of the Criminal
Code.
24. Other relevant parts of the Criminal Code would apply to the Collection Bill. This includes
sections 9.3 and 9.4, which clarify that a person can be criminally responsible even if the
person is ignorant of or mistaken about the existence of the relevant provision in the
Collection Bill or the rules. People cannot avoid criminal liability by being wilfully blind to
the law and how it applies to them.
25. The Collection Bill contains a small number of strict liability offences. Where strict liability
applies to an offence, the prosecution is only required to prove the physical elements of an
offence in order for the defendant to be found guilty, in accordance with section 6.1 of the
Criminal Code. Strict liability offences have been used where non-compliance would have
serious impacts on the integrity of the agricultural levy system and it can be reasonably
expected that the person was aware of their duties and obligations and are in line with the
Guide to Framing Commonwealth Offences.
9
Civil penalties
26. The Collection Bill includes a range of civil penalties. It will trigger the framework for civil
penalties in Part 4 of the Regulatory Powers Act. The civil penalties in the Collection Bill
have been designed to encourage compliance with the Collection Bill without resorting to
criminal prosecution. Contraventions of civil penalty provisions will need to be proved in
court on the balance of probabilities.
27. The civil penalty provisions would deter non-compliance with the requirements in
the Collection Bill for collection of levies and charges. Non-compliance with the collection
of levies and charges could have significant and lasting negative consequences for the
strategic goals of the agricultural levy system. R&D, marketing, biosecurity and residue
testing are key elements of maintaining the productivity of the agricultural, fisheries and
forestry sectors. The Collection Bill includes civil penalties for provisions where a pecuniary
penalty is the appropriate remedy for non-compliance.
28. Some provisions will have both criminal and civil penalties attached. Civil penalty provisions
offer an alternative to criminal prosecution. This is intended to allow the most appropriate
sanction to be considered in the circumstances.
Information management
29. Part 5 of the Collection Bill would support the continued use and disclosure of information to
administer the agricultural levy system, monitor compliance and undertake enforcement
activities. The Collection Bill would largely retain or strengthen existing protections for levy
and charge payer, and collection agent information.
30. The Collection Bill would provide more comprehensive and modern information
management provisions, that would provide clear guidance on how relevant levy/charge
information is to be used and disclosed. These provisions would cover all information
obtained or generated by a person while administering or monitoring compliance with the
Collection Bill or associated rules. The Collection Bill would ensure that use and disclosure
of this levy and charge information is regulated with appropriate penalties for misuse.
31. The Collection Bill would retain existing functions in the PILCC Act which enable:
• industry representative bodies and bodies that receive money under the
Disbursement Bill to use collection agent information to conduct consultation in
relation to levy settings and to support performance of their functions.
• research and development corporations (known as statutory and declared recipient
bodies in the Disbursement Bill) to use levy and charge payer information for their
functions and obligations. The Collection Bill would support the maintenance of
levy and charge payer registers. It would also support recipient bodies to conduct
polls of levy and charge payers (where relevant) and enable declared recipient
bodies to determine whether a person is eligible to be a member of the body.
10
• the ABS to use levy and charge payer and collection agent information to carry out
critical statistical research that supports Australian agricultural industries.
32. The Collection Bill would improve agricultural policy and research outcomes by enabling
ABARES and other Commonwealth entities to access levy payer and collection agent
information for statistical and agricultural policy and agricultural research purposes.
11
Part 1--Preliminary
Section 1 Short title
33. This section would provide for the short title of the proposed Act to be the Primary
Industries Levies and Charges Collection Act 2023 (the Act).
Section 2 Commencement
34. This section would provide for the commencement of the proposed Act, as set out in the table
in subsection 2(1).
35. Item 1 of the table would provide that sections 1 and 2 and anything in the proposed Act not
elsewhere covered by the table would commence on the day that the proposed Act receives
the Royal Assent.
36. Item 2 of the table would provide that sections 3 to 9 would commence on 1 January 2025.
37. Item 3 of the table would provide that section 10 would commence on the day after the
proposed Act receives the Royal Assent.
38. Item 4 of the table would provide that section 11 would commence on 1 January 2025.
39. Item 5 of the table would provide that section 12 would commence on the day after the
proposed Act receives the Royal Assent.
40. Item 6 of the table would provide that sections 13 to 59 would commence on 1 January 2025.
41. A note to subsection 2(1) would state that the table relates only to the provisions of the
proposed Act as originally enacted and it will not be amended to deal with any later
amendments of the proposed Act.
42. Subsection 2(2) would provide that any information in column 3 of the table is not part of
the proposed Act. Information may be inserted in column 3 of the table, or information in it
may be edited, in any published version of the proposed Act. This would allow information
to be inserted in column 3 to assist the reader after commencement.
Section 3 Simplified outline of this Act
43. The simplified outline of the proposed Act would be included to assist the reader to
understand the substantive provisions of the proposed Act; however, it is not intended to be
comprehensive. The reader should rely on the substantive provisions of the proposed Act to
which the outline relates.
12
Section 4 Definitions
44. This section would provide for definitions of certain terms used in the proposed Act. An
explanation is provided below for key definitions.
ABARES staff member
45. This definition would provide that ABARES staff member means an APS (Australian
Public Service) employee in the part of the department known as ABARES or a person
employed or engaged by the Commonwealth to perform services for that Bureau.
46. This term would be used in Part 5 of the proposed Act in relation to the use and disclosure of
information about levy payers, charge payers and collection agents.
approved electronic system
47. This definition would provide that approved electronic system means an electronic system
covered by section 55.
48. This term would be used in section 59 of the proposed Act, which sets out that the rules may
provide for returns to be given using an approved electronic system. An electronic system
would be approved under section 55, permitting the Secretary to establish, administer and
maintain an electronic system for the purpose of giving returns or information electronically
under the rules.
charge
49. This definition would provide that charge means a charge imposed by regulations under the
Customs Act.
50. This term would be used throughout the proposed Act to allow for the collection of charges
from charge payers and equivalent amounts from collection agents.
charge payer
51. This definition would provide that charge payer means a person who has paid, or is liable to
pay, a charge.
52. A note to this definition would explain that regulations under the Customs Act specify the
charge payer.
53. Part 2 would authorise the collection of charge from the charge payer and provide for
obligations and liabilities of the charge payer. The term would also be used in Part 5 of the
proposed Act in relation to the use and disclosure of information about charge payers.
13
collection agent
54. This definition would provide that collection agent means a person who, under the rules, is
liable to pay an amount as mentioned in paragraph 10(1)(a) of the proposed Act.
55. Paragraph 10(1)(a) would permit the rules to make persons liable to pay an amount on behalf
of levy or charge payers equal to the amount of levy or charge due for payment in relation to
collection commodities/services.
56. Collection agent would replace the term 'intermediary' used in the PILCC Act. 'Collection
agent' is a clearer representation of the role these persons play in the agricultural levy
system. Collection agents include a wide range of participants in agricultural supply chains,
including processors, first purchasers, buying agents, selling agents and exporting agents.
The levy system relies on the critical role of collection agents in collecting levy and charge
efficiently and cost-effectively.
57. Part 2 would authorise the collection of an amount equal to the amount of levy or charge
payable from a collection agent and provide for obligations and liabilities of collection
agents. The term would also be used in Part 5 of the proposed Act in relation to the use and
disclosure of information about collection agents.
collection commodities/services
58. This definition would provide that collection commodities/services means:
a. animal products, plant products, fungus products or algal products in relation to
which levy is imposed by regulations under Part 2 of the Excise Act or charge is
imposed by regulations under Part 2 of the Customs Act;
b. goods in relation to which levy is imposed by regulations under Part 3 or 4 of the
Excise Act or charge is imposed by regulations under Part 3 of the Customs Act;
c. services in relation to which levy is imposed by regulations under Part 2 of the
Services Act.
59. Section 10 would provide for the rules to make provisions for and in relation to the payment
of levy or charge for the purposes of better securing the payment of levy or charge imposed
on specific products, goods and services. The term would also be used in Part 5 of the
proposed Act in relation to the use and disclosure of information about levy payers, charge
payers and collection agents.
compliance officer
60. This definition would provide that compliance officer means the Secretary or an APS
employee in the department in respect of whom an appointment under section 52 of the
proposed Act is in force.
14
61. Section 52 provides for the appointment of compliance officers who have powers and
functions under the Regulatory Powers Act in relation to the enforcement of the proposed
Act.
62. This term would be used in Part 4 of the proposed Act which provides a compliance officer
certain powers required for effective monitoring, investigation and enforcement of the
agricultural levy system.
declared recipient body
63. This definition would provide that declared recipient body means a body that is the subject
of a declaration in force under subsection 39(1) of the Disbursement Act.
64. Subsection 39(1) of the Disbursement Act would provide that the Minister may, by writing,
declare a body to be a recipient body. The recipient body must be one that is prescribed by
the rules for the purposes of that subsection.
65. This term would be used in Part 5 of the proposed Act in relation to the use and disclosure of
relevant levy/charge information to declared recipient bodies, which are colloquially also
known as industry-owned RDCs.
entrusted person
66. This definition would provide that entrusted person means any of the following:
a. the Minister;
b. the Secretary;
c. an APS employee in the department;
d. any other person who is employed or engaged by the Commonwealth to provide
services to the Commonwealth in connection with the department;
e. any other person who is employed or engaged by the Commonwealth or a body
corporate that is established by a law of the Commonwealth and in a class of persons
prescribed by the rules.
67. This term would be used in Part 5 of the proposed Act in relation to the use and disclosure of
relevant levy/charge information. Entrusted persons would be able to use and disclose levy
payer, charge payer and collection agent information to specified people and bodies in certain
circumstances. Entrusted persons would also be subject to penalties for misuse of
information.
equivalent amount
68. This would be a signpost definition to draw the reader's attention to paragraph 10(1)(a) for
the meaning of equivalent amount. Paragraph 10(1)(a) would provide that a collection agent
15
is liable to pay an equivalent amount on behalf of the levy or charge payer equal to the
amount of levy or charge due for payment in relation to the collection commodity/service.
69. This term would be used in Part 2 of the proposed Act in relation to the payment of
equivalent amounts, requirements for which would be prescribed by the rules.
levy
70. This definition would provide that levy means a levy imposed by regulations under the
Excise Act or the Services Act.
71. This term would be used throughout the proposed Act to allow for the collection of levies
from levy payers and equivalent amounts from collection agents.
levy payer
72. This definition would provide that levy payer means a person who has paid, or is liable to
pay, levy.
73. A note to this definition would explain that regulations under the Excise Act or the Services
Act specify the levy payer.
74. This term would be central to the scope and application of the proposed Act. Part 2 would
authorise the collection of levy from the levy payer and provide for obligations and liabilities
of the levy payer. The term would also be used in Part 5 of the proposed Act in relation to the
use and disclosure of information about levy payers.
personal information
75. This definition would provide that personal information has the same meaning as in the
Privacy Act.
76. Section 6 of the Privacy Act provides that personal information means information or an
opinion about an identified individual, or an individual who is reasonably identifiable,
whether the information or opinion is true or not and whether the information or opinion is
recorded in a material form or not.
77. This term would be primarily used in Part 5 of the proposed Act in relation to the use and
disclosure of information about levy payers, charge payers and collection agents.
relevant levy/charge information
78. This definition would provide that relevant levy/charge information means:
a. information obtained by a person under this proposed Act or the rules; or
b. information obtained or generated by a person in the course of or for the purposes of:
16
i. administering this proposed Act or the rules or monitoring compliance with this
proposed Act or the rules; or
ii. assisting another person to administer this proposed Act or the rules or monitor
compliance with this proposed Act or the rules.
79. This term would be used in Part 5 of the proposed Act in relation to the use and disclosure of
information about levy payers, charge payers and collection agents.
reviewable decision
80. This would provide that reviewable decision means a decision referred to in subsection 48(1)
of the proposed Act, which would list decisions that are reviewable.
81. This term would be used in Division 3 of Part 6 of the proposed Act to allow the Secretary to
reconsider a specified decision.
rules
82. This definition would provide that rules means rules made by the Secretary under section 59
of the proposed Act.
83. Section 59 of the proposed Act would provide that the Secretary may, by legislative
instrument, make rules prescribing matters required or permitted by the proposed Act to be
prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving
effect to the proposed Act. The rules would be legislative instruments for the purposes of the
Legislation Act.
statutory recipient body
84. This definition would provide that statutory recipient body means:
a. a research and development corporation established under regulations, or continued in
existence under regulations, made for the purposes of section 8 of the PIRD Act
b. the Rural Industries Research and Development Corporation established under
section 9 of the PIRD Act
c. Wine Australia.
85. This term would be used in Part 5 of the proposed Act in relation to the use and disclosure of
relevant levy/charge information to statutory recipient bodies, which are colloquially also
known as statutory RDCs.
Section 5 Act binds Crown
86. This section would provide that the proposed Act would bind the Crown in each of its
capacities but would not make the Crown liable to be prosecuted for an offence.
17
87. A note to the section would clarify that the Crown is not liable to be subject to civil
proceedings for a civil penalty provision or to be given an infringement notice under the
proposed Act.
Section 6 Application of this Act in external Territories
88. This section would provide that the proposed Act and the rules made under the proposed Act
do not automatically extend to the external Territories.
89. Subsection 6(2) would provide that the rules made under the proposed Act may extend the
proposed Act, and any provisions of the rules, to an external Territory that is prescribed by
the rules, enabling the rules to extend to the proposed Act and any provisions of the rules to
external Territories.
18
Part 2--Collection of levy or charge
Division 1--Introduction
Section 7 Simplified outline of this Part
90. The simplified outline would be included to assist the reader to understand the substantive
provisions of this Part; however, it is not intended to be comprehensive. The reader should
rely on the substantive provisions of this Part to which the outline relates.
91. The section outlines that:
• this Part will set out that rules may be made to support the collection of levy or
charge from levy payers or charge payers (Division 2);
• this Part will set out that rules may be made to support making collection agents
liable to pay equivalent amounts of levy or charge on behalf of levy payers and
charge payers (Division 3);
• late payment penalties will be applicable if levy or charge, or equivalent amounts
are not paid on time;
• collection agreements may be entered into to allow for another entity to collect levy
or charge or equivalent amounts on behalf of the Commonwealth. These
agreements may be between the Commonwealth and a State, the Australian Capital
Territory, the Northern Territory or another person or body (Division 4);
• that there are provisions for debt recovery and refunds (Division 5).
Division 2--Payment of levy or charge
Section 8 Payment of levy or charge
92. Subsection 8(1) would provide that rules may be made for the purpose of the collection and
administration of levy and charge. These rules may include provisions addressing:
• the time levy or charge is due and payable (paragraph 8(1)(a));
• whether the levy or charge is payable to the Commonwealth or whether it is
payable to an entity on behalf of the Commonwealth (paragraph 8(1)(b));
• any other matters relating to a levy payer's or charge payer's liability to pay levy or
charge (paragraph 8(1)(c)).
93. Subsection 8(2) would clarify that for the purposes of paragraph 8(1)(b), the rules must not
provide for the levy or charge being payable to another entity on behalf of the
Commonwealth unless there is an agreement in force under section 12 for that other entity to
collect the levy or charge on behalf of the Commonwealth.
19
94. It is intended that rules will be made relating to the collection of levy or charge for each
collection product or service. This allows for the rules to be tailored to each specific
collection product or service's seasonality and supply chains to find the appropriate
collection points for levy and charge. The rules would replace the PILCC Regulations.
Section 9 Late payment penalty
95. This section would impose a late payment penalty for any amount of levy or charge that is
unpaid after the due date set out by the rules. This penalty continues the 2% per month
penalty imposed under section 15 of the PILCC Act. The application of this penalty would
not be changed. The provisions have been drafted with the intent of maximising clarity and
readability.
96. The penalty would be applied on a daily basis. It would be based on the amount of levy or
charge that was unpaid up to the end of each day on which it was incurred.
97. The penalty would stop accruing once the levy or charge payer had paid the full outstanding
unpaid amount of levy or charge. A person who paid the full outstanding amount of levy or
charge would not accrue penalty on any amounts of penalty that remained unpaid from that
day onwards. However, unpaid penalty could be recovered as a debt due to the
Commonwealth (Division 5).
Penalty period
98. Subsection 9(2) describes the penalty period. This is the period for which an unpaid levy or
charge amount remains owing after the due day. The penalty is calculated for each day of the
penalty period:
• The penalty would start accruing on any outstanding levy or charge amount from
the day after the due date of the levy or charge, as specified in the rules.
• The penalty would cease accruing on the day before the day on which payment is
made in full.
Amount of penalty
99. Subsection 9(3) would provide a method statement for working out the amount of penalty
for each day (the penalty day) in the penalty period. The subsection would give an example
to assist the reader.
100. The penalty would be calculated for each penalty day based on:
• the number of days in the calendar month in which there was unpaid levy or charge
(that is, the number of penalty days)
• the amount of unpaid levy or charge that remained at the end of the penalty day
20
• the total amount of penalty (if any) for days in each calendar month before the
calendar month in which the penalty day occurs.
101. This means that the amount of daily penalty incurred would vary slightly depending on the
number of days in the calendar month (28, 29, 30 or 31 days). This would be consistent
with the operation of section 15 of the PILCC Act.
102. If a partial payment was made, the amount of daily penalty would be reduced from the day
of that partial payment onwards. This would reflect that the unpaid levy or charge amount
had been reduced by the amount of the partial payment. For example, in the example given
in subsection 9(3):
• If $1,200 levy was due on 31 August - from 1 September until any payment is
made, penalty would be incurred daily on the full $1,200 unpaid amount.
• If a partial payment of $300 was made on 16 September - from 16 September until
any further payment is made, the amount of daily penalty incurred would be
reduced. It would now be calculated on the remaining unpaid amount of $900.
103. If an amount of levy or charge was unpaid into a new calendar month after the penalty
started accruing, then penalty would also be incurred on the amount of penalty that had
been incurred up until the end of the preceding month. That is, the daily penalty accruing
for the following calendar month would be based on both the remaining unpaid levy or
charge and any penalty accrued in the previous month. For example, in the example given
in subsection 9(3):
• $1,200 levy was due on 31 August and at the end of September, the unpaid levy had
been reduced to $900. However, during September, $21 of penalty accrued.
• This means that from 1 October onwards, the daily penalty would be incurred based
on $921 (i.e. the remaining unpaid levy and the amount of penalty incurred before
October).
• In the example given, the remaining balance of $900 is paid on 10 October. No
penalty would be incurred on 10 October or any following days.
104. For the calculation of the amount of penalty for any penalty day, the total would be rounded
up to the nearest cent, rounding 0.5 cents upwards.
When penalty is due and payable
105. Subsection 9(4) would provide that the amount of late payment penalty under the section
for a day is due and payable to the Commonwealth at the end of that day.
Remission of penalty
106. Subsection 9(5) would provide the Secretary with a discretion to remit the whole or a part
of an amount of late payment penalty.
21
107. Subsection 9(6) would set out the following matters the Secretary must consider relevant
and take into account in deciding whether to remit an amount of late payment penalty under
subsection 9(5):
• whether the failure to pay the levy or charge, that resulted in the penalty, was the
result of an honest mistake or inadvertence by the levy payer or charge payer
(subparagraph 6(a)(i));
• the circumstances in which that failure occurred (subparagraph 6(b)(ii));
• the amount of the penalty (subparagraph 6(c)(iii));
• the levy payer's or charge payer's history of compliance with this Act and the rules
(subparagraph 6(d)(iv)).
108. Paragraph 6(b) further provides that the Secretary may take into account any other matter
that the Secretary considers relevant.
109. For example, the Secretary may remit in circumstances where the person or business did not
make a payment on time for reasons outside their control. Matters beyond a person's
control could relate to business, family or personal, financial or medical matters. In
addition, other circumstances could be a genuine or explicable mistake, or where there are a
combination of factors including compassionate grounds, health-related issues, the low
amount of penalty and/or a strong history of payment on time.
Division 3--Payment by collection agents of amounts equal to levy or charge
Section 10 Payment of amounts equal to levy or charge
110. Subsection 10(1) would allow 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
(an equivalent amount). This section would enable the critical role of collection agents,
such as processors and wholesalers, who underpin the efficient and cost-effective collection
of a significant proportion of agricultural levies and charges.
111. The rules may include provisions that:
• make a collection agent liable to pay an equivalent amount on behalf of the levy
payer or charge payer. This equivalent amount would be equal to the amount of
levy or charge due in relation to the collection commodities/services
(paragraph 10(1)(a));
• specify the time the equivalent amount is due and payable by the collection agent
(paragraph 10(1)(b));
• identify whether the equivalent amount is payable to the Commonwealth or
whether it is payable to an entity on behalf of the Commonwealth
(paragraph 10(1)(c));
22
• any other matters relating to the above matters (paragraph 10(1)(d)).
112. A note directs the reader to subsections 10(10) and (11) for limitations on the rules.
113. Collection commodities/services and collection agent would be defined in section 4.
Deductions by collection agent
114. Subsection 10(2) permits a collection agent, for the purpose of ensuring the collection agent
has the funds necessary to pay an equivalent amount, to deduct an amount from:
• money received by the collection agent on behalf of the levy payer or charge payer
in relation to the collection commodities/services; or
• money payable by the collection agent to the levy payer or charge payer in relation
to the collection commodities/services.
115. Subsection 10(3) would provide that the amount the collection agent may deduct from
money received on behalf of, or money payable to, the levy or charge payer is an amount
equal to, or that may reasonably be expected to be equal to, the equivalent amount (that is,
the amount of any levy or charge due for the relevant commodity or service).
116. For example:
• a collection agent might be a selling agent, selling a commodity on behalf of a levy
payer. The collection agent could deduct an amount from the sale proceeds received
on behalf of the levy payer. The amount that could be deducted would be the
amount necessary for the collection agent to pay, on behalf of the levy payer, an
amount equal to the levy
• a collection agent might be a first purchaser, purchasing a commodity from a levy
payer for processing or distribution. The collection agent could deduct an amount
from the purchase amount that they owe to the levy payer. The amount that could
be deducted would be the amount necessary for the collection agent to pay, on
behalf of the levy payer, an amount equal to the levy.
117. Subsection 10(4) would set out requirements relating to the receipt or other written
statement that the collection agent must provide to the levy payer or charge payer if the
collection agent deducts an amount. The record must be provided within seven days after
the deduction and specify the amount of the deduction and the day of the deduction.
118. Subsection 10(5) would provide that subsections 10(2) and (3), dealing with deductions by
a collection agent, apply despite any law of a State, the Australian Capital Territory or the
Northern Territory and any agreement.
23
Discharge of levy payer's or charge payer's liability
119. The Act would provide for two ways in which collection agent actions could discharge the
levy or charge payers from liability to pay levy or charge:
• by deducting an amount under subsection 10(2)
• by paying an amount as mentioned in subsection 10(1)(a) to the Commonwealth or
another entity on behalf of the Commonwealth.
120. Subsection 10(6) would provide that, if the collection agent deducts an amount under
subsection 10(2), the levy payer or charge payer is discharged from liability to pay the levy
or charge to the extent that the amount deducted does not exceed the amount of the levy or
charge. This means that if the collection agent deducts the full amount, the levy or charge
payer would not be required to pay the levy or charge and would not be obligated to pay
any late payment penalties.
121. The subsection would set out an example to demonstrate how this would operate:
• If a levy payer was liable to pay $100 levy and a collection agent deducted $90
under subsection 10(2).
• Then the levy payer's liability would be discharged by $90. At that point in time,
the levy payer would still be liable to pay $10.
122. Subsection 10(7) would provide that if the collection agent makes a payment as mentioned
in paragraph 10(1)(a), the levy payer or charge payer is discharged from liability to pay the
levy or charge to the extent of, so much of the amount paid that does not exceed the amount
of the levy or charge; less the amount of the discharge (if any) under subsection 10(6).
123. The subsection would set out an example to demonstrate how this would operate:
• If a levy payer was liable to pay $100 levy and a collection agent deducted $90
under subsection 10(2).
• Then the levy payer's liability would be discharged by $90. At that point in time,
the levy payer would still be liable to pay $10.
• If the collection agent then made a payment of $100 under subsection 10(1)(a), the
levy payer's liability would be discharged by the remaining $10 (i.e. $100 minus
$90 deduction).
• Alternatively, if the collection agent made a payment of $120 under
subsection 10(1)(a), the levy payer's liability would still be discharged by the
remaining $10 (i.e. $100 minus $90 deduction). The collection agent would have
overpaid $20 and would be entitled to a refund (see section 14).
24
Collection agent may recover amount from levy payer or charge payer
124. Subsection 10(8) would provide that if the collection agent makes a payment as mentioned
in paragraph 10(1)(a), the collection agent may recover from the levy payer or charge payer,
by set-off or otherwise, an amount equal to so much of the amount paid that does not
exceed the amount of the levy or charge, less any deduction the collection agent made under
subsection 10(2).
125. The subsection would set out an example to demonstrate how this would operate:
• If a levy payer was liable to pay $100 levy and a collection agent deducted $90
under subsection 10(2).
• Then the levy payer's liability would be discharged by $90. At that point in time,
the levy payer would still be liable to pay $10.
• If the collection agent then made a payment of $100 under subsection 10(1)(a), the
levy payer's liability would be discharged by the remaining $10 (i.e. $100 minus
$90 deduction).
• At that point in time, the collection agent could recover the remaining $10 from the
levy payer.
When agreement between levy or charge payer and collection agent is void
126. Subsection 10(9) would provide that an agreement between a levy payer or charge payer
and a collection agent that purports to require the levy payer or charge payer to pay levy or
charge as a condition for the provision of services by the agent is void to that extent, if the
agent would otherwise be liable to pay an amount as mentioned in paragraph 10(1)(a) in
relation to that levy or charge.
127. This section would mitigate attempts by collection agents to shift the requirement to pay
levy and charge back onto levy and charge payers. Given that the agricultural levy system
relies on collection agents to cost-effectively collect levy and charge, this would adversely
affect the cost-effectiveness of some levies and charges. This could have the impact that
some levies and charges were no longer viable, negating the benefit to industry and the
primary industry sector as a whole. There is a risk that that unequal power relationships
between levy and charge payers and collection agents could impact the collection of levy
and charge. This section would mitigate that risk by preventing collection agents from
'contracting out' of their obligations to pay equivalent amounts under the proposed Act.
25
Limitations on rules
128. Subsection 10(10) would clarify that for the purposes of paragraph 10(1)(a), the rules must
not provide for a State to be liable to pay an amount on behalf of the levy payer or charge
payer unless a Minister of the State has informed the Minister administering the Act, in
writing, that the State gives consent to the rules doing so, and the consent is in force.
129. Subsection 10(11) would clarify that for the purposes of paragraph 10(1)(c), the rules must
not provide for the equivalent amount being payable to another entity on behalf of the
Commonwealth unless there is an agreement in force under section 12 for that other entity
to collect the equivalent amount on behalf of the Commonwealth.
Section 11 Late payment penalty
130. Subsection 11(1) would impose a late payment penalty for any equivalent amount that
remains unpaid (the unpaid amount) after the due day set out by the rules. The collection
agent would be liable to pay penalty in the following circumstances:
• if an equivalent amount is payable by a collection agent under the rules, and
• the whole or a part of that equivalent amount remains unpaid at the end of the due
day.
131. This penalty continues the 2% per month penalty imposed under section 15 of the PILCC
Act. The application of this penalty would not be changed. The provisions have been
drafted with the intent of maximising clarity and readability.
Penalty period
132. Subsection 11(2) describes the penalty period. This is the period for which an unpaid
amount remains owing after the due day. The penalty would be calculated for each day of
the penalty period:
• The penalty would start accruing on any outstanding amount from the day after the
day the rules specify as the due date of the unpaid amount.
• The penalty would cease accruing on the day before the day on which payment is
made in full.
Amount of penalty
133. Subsection 11(3) would provide a method statement for working out the amount of penalty
for each day (the penalty day) in the penalty period. The subsection would give an example
to assist the reader.
134. The penalty would be calculated for each penalty day based on:
26
• the number of days in the calendar month in which there was an unpaid amount
(that is, the number of penalty days)
• the unpaid amount that remained at the end of each penalty day
• the total amount of penalty that was owing at the end of the calendar month before
the calendar month in which the penalty day occurs.
135. This means that the amount of daily penalty incurred would vary slightly depending on the
number of days in the calendar month (28, 29, 30 or 31 days). This would be consistent
with the operation of section 15 of the PILCC Act.
136. If a partial payment was made, the amount of daily penalty would be reduced from the day
of that payment. This would reflect that the unpaid amount has been reduced by the amount
of the partial payment. For example, in the example given in subsection 11(3):
• If $1,500 equivalent amount was due on 31 August - from 1 September until any
payment, penalty would be incurred daily on the full $1,500 unpaid amount
• If a partial payment of $600 was made on 16 September - from 16 September until
any further payment, the amount of daily penalty incurred would be reduced. It
would now be calculated on the remaining unpaid amount of $900.
137. If an unpaid amount remained past the last day of a calendar month, then the daily penalty
accruing for the following calendar month would be based on both the remaining unpaid
amount from the previous calendar month and any penalty accrued in the previous month.
For example, in the example given in subsection 11(3):
• $1,500 levy was due on 31 August and at the end of September, the unpaid amount
had been reduced to $900. However, during September, $24 of penalty had accrued.
• This means that from 1 October onwards, the daily penalty would be incurred on
$924 (i.e. the remaining unpaid amount and the amount of penalty incurred before
October).
• In the example given, the remaining balance of $900 is paid on 10 October. No
penalty would be incurred on 10 October or any following days.
138. For the calculation at any amount of penalty, the total is rounded up to the nearest cent,
rounding 0.5 cents upwards.
When penalty is due and payable
139. Subsection 11(4) would provide that the amount of late payment penalty for each day, as
worked out using the method in the section, is due and payable to the Commonwealth at the
end of that day.
27
Remission of penalty
140. Subsection 11(5) would provide the Secretary with a discretion to remit the whole or a part
of an amount of late payment penalty.
141. Subsection 11(6) would set out the following matters the Secretary must consider relevant
and take into account in deciding whether to remit an amount of late payment penalty under
subsection 11(5):
• whether the failure to pay the equivalent amount, that resulted in the penalty, was
the result of an honest mistake or inadvertence by the collection agent
(subparagraph 6(a)(i));
• the circumstances in which that failure occurred (subparagraph 6(a)(ii));
• the amount of the penalty (subparagraph 6(a)(iii));
• the collection agent's history of compliance with this Act and the rules
(subparagraph 6(a)(iv)).
142. Paragraph 11(6)(b) further provides that the Minister may take into account any other
matter that the Secretary considers relevant.
143. For example, the Secretary may remit in circumstances where the person or business did not
make a payment on time for reasons outside their control. Matters beyond a person's
control could relate to business, family or personal, financial or medical matters. In
addition, other circumstances could be a genuine or explicable mistake, or where there are a
combination of factors including compassionate grounds, health-related issues, the low
amount of penalty and/or a strong history of payment on time.
Division 4--Collection agreements
Section 12 Collection agreements
144. This section would provide for the Commonwealth to enter into collection agreements with
States or Territories and other persons or bodies, and would set out the possible content of
such agreements.
145. For some levies and charges, collection agreements can provide a more efficient and cost-
effective means of collecting levy and charge. This section would re-establish the collection
agreement provisions in sections 10 and 11 of the PILCC Act.
Collection agreements with States or Territories
146. Subsection 12(1) would allow the Commonwealth to enter into an agreement with a State,
the Australian Capital Territory or the Northern Territory about the collection, on behalf of
the Commonwealth, by the State or Territory or an authority of the State or Territory, of
28
either or both of levy or charge payable by a levy payer or charge payer or equivalent
amounts that a collection agent is liable to pay as mentioned in paragraph 10(1)(a).
Collection agreements with other persons or bodies
147. Subsection 12(2) would allow the Commonwealth to enter into an agreement with a person
or body about the collection, on behalf of the Commonwealth, of either or both of levy or
charge, payable by a levy payer or charge payer, or equivalent amounts that a collection
agent is liable to pay as mentioned in paragraph 10(1)(a).
Content of agreements
148. Subsection 12(3) would state that the content of collection agreements may include, but
would not be limited to, the following:
• the persons from whom amounts are to be collected;
• for State and Territory agreements--the State, Territory or region in which amounts
are to be collected;
• the keeping of accounts and records in relation to amounts collected;
• the payment to the Commonwealth of amounts collected;
• the giving to the Minister of information about amounts collected and amounts paid
to the Commonwealth;
• the inspection and audit of accounts and records kept about amounts collected.
Publication of agreement
149. Subsection 12(4) would require the Secretary to publish a copy of a collection agreement in
the Gazette and on the department's website within 28 days of the agreement being made.
In practice this requirement would ensure that agreements are co-located and accessible on
the Federal Register of Legislation and the department's website. This would ensure that the
terms of collection agreements are easily accessible to levy payers, charge payers and
collection agents.
Consultation with industry body
150. Subsection 12(5) would impose a requirement that the Secretary consult with any affected
industry bodies representing levy payers, charge payers or collection agents prior to the
Commonwealth entering into an agreement under subsection 12(1) or (2).
151. The policy intention is that this would include but not be limited to consultation with any
industry representative bodies nominated under subsection 23(1) of the Excise Act,
subsection 20(1) of the Customs Act and subsection 17(1) of the Services Act in relation to
the relevant levy or charge.
29
152. This provision would reflect the key importance of consultation with industry members and
representatives about levy settings, including collection arrangements. Due to the
longstanding nature of the agricultural levy system as a partnership between industry and
government, in practice, levy settings such as the use of collection agreements, are
generally only established or amended in response to an industry levy proposal. The
department publishes levy guidelines on its website to support industry to develop such
proposals.
Validity of agreement
153. Subsection 12(6) would provide that failure to comply with the publication and consultation
requirements set out in subsection 12(4) or (5) would not invalidate an agreement.
Status of collected amounts
154. Subsection 12(7) would provide that rules made for the purposes of subsection 105(1) of the
Public Governance, Performance and Accountability Act 2013 do not apply to amounts
collected under an agreement under section 12.
Commonwealth not to discriminate or give preference
155. Subsection 12(8) would prohibit the power to enter into agreements under subsection 12(1)
and (2) being exercised to discriminate between States or parts of States within the meaning
of paragraph 51(ii) of the Constitution, or to give preference to one State or any part of a
State within the meaning of section 99 of the Constitution.
Division 5--Recovery and refund of amounts
Section 13 Debt recovery
156. This section would provide that the following unpaid amounts are debts due to the
Commonwealth and may be recovered by the Commonwealth by action in a court of
competent jurisdiction:
• an amount of levy or charge that remains unpaid after the time it was due and
payable;
• an equivalent amount that a collection agent, under the rules, is liable to pay as
mentioned in paragraph 10(1)(a) that remains unpaid after the time it was due and
payable;
• a late payment penalty incurred under section 9 or 11 that remains unpaid after the
time it was due and payable.
30
Section 14 Refund of amounts
157. This section would set out the circumstances in which the Commonwealth must refund an
overpayment.
158. Subsection 14(1) would require the Commonwealth to refund amounts equal to an
overpayment made by a person for:
• an amount of levy or charge;
• an equivalent amount that a collection agent, under the rules, is liable to pay as
mentioned in paragraph 10(1)(a);
• a late payment penalty incurred under section 9 or 11.
159. Subsection 14(2) would provide that section 14 has effect subject to section 15 (Recovery
by reduction of future liability).
Section 15 Recovery by reduction of future liability
Levy payers or charge payers
160. Subsection 15(1) would allow the Commonwealth, or another entity on behalf of the
Commonwealth, to reduce an amount of levy or charge liable to be paid. This would be
allowed where a levy payer or charge payer had previously made an overpayment to the
Commonwealth or another entity, which had not been refunded by the Commonwealth or
that other entity.
161. Subsection 15(2) would provide that the amount of the reduction of the amount of levy or
charge liable to be paid must not exceed the amount of the overpayment.
162. Subsection 15(3) would provide that the Commonwealth would not be required to refund
the overpayment to the levy payer or charge payer to the extent of the reduction.
163. In practice this would mean the overpayment would be deducted from the next amount of
levy or charge that is due and payable for that levy or charge payer. However, if a levy or
charge payer requested a refund or their business was changing in such a way that they
would no longer be liable to pay levy or charge, a refund would be able to be issued under
section 14.
Collection agents
164. Subsection 15(4) would allow the Commonwealth, or an entity on behalf of the
Commonwealth, to reduce an equivalent amount liable to be paid. This would be allowed
where a collection agent had previously made an overpayment to the Commonwealth or
another entity, which had not been refunded by the Commonwealth or that other entity.
165. Subsection 15(5) would provide that the amount of the reduction of the equivalent amount
liable to be paid must not exceed the amount of the overpayment.
31
166. Subsection 15(6) would provide that the Commonwealth would not be required to refund
the overpayment to the collection agent to the extent of the reduction.
167. In practice this would mean the overpayment would be deducted from the next equivalent
amount that is due and payable for that collection agent. However, if a collection agent
requested a refund or their business was changing in such a way that they would no longer
be liable to pay equivalent amounts, a refund would be able to be issued under section 14.
168. Subsection 15(7) would provide that if the equivalent amount the collection agent is liable
to pay is reduced, the levy payer or charge payer for the levy or charge to which the
equivalent amount relates is discharged from liability to pay the levy or charge to the extent
of the reduction.
169. Examples would be provided throughout the section to assist the reader.
32
Part 3--Giving returns or notices and making and keeping records
under the rules
Overview
170. Part 3 would set out the offences and civil penalties for persons who fail to give a return or
notice under the rules, or fail to make or keep records in accordance with the rules.
171. Infringement notices and civil penalties would be introduced to allow the department to
respond proportionately to levy payers, charge payers and collection agents who are non-
compliant with their obligations under the Act. Infringement notices and civil penalties, in
addition to the criminal penalties, would allow for more proportionate and appropriate
penalties for contraventions of the Act than the criminal penalties regime under the PILCC
Act.
Section 16 Simplified outline of this Part
172. The simplified outline would be included to assist the reader to understand the substantive
provisions of this Part; however, it is not intended to be comprehensive. The reader should
rely on the substantive provisions of this Part to which the outline relates.
Section 17 Penalties for failure to give return or notice under the rules
Failure to give returns
173. Subsections 17(1) and (2) would set out the offences and civil penalties for levy payers,
charge payers or collection agents who fail to give a return as required under the rules.
174. Subsection 17(1) would impose a strict liability offence for a person who:
• was required to give a return under the rules; and
• failed to do so in accordance with the rules.
175. The penalty for this strict liability offence would be a maximum of 60 penalty units and
would not include imprisonment. This is in line with the Guide to Framing Commonwealth
Offences.
176. The proposed strict liability offence would significantly support the effectiveness of the
regulatory regime in deterring certain conduct. Certain defences such as mistake of fact
would be available: see general defences in Chapter 2, Part 2.3 of the Criminal Code.
177. A note to subsection 17(1) would explain to the reader that a person may commit an offence
if the person gives a false or misleading return and directs the reader to section 137.2 of the
Criminal Code.
178. It is appropriate that this offence is of strict liability. Submitting returns supports the
integrity of the levy system, by ensuring that the correct amounts have been collected.
33
179. Persons engaged in leviable transactions in the agricultural, fisheries and forestry sectors
should know their legal obligations and it is appropriate for this offence to be strict liability
to deter non-compliance with the obligation to provide returns.
180. Specifically, those engaged in leviable transactions can reasonably be expected to be aware
of their duties and obligations to submit returns, which would be clearly set out in the
specific commodity rules. Return forms would be accessible to those liable to pay levy or
charge through an electronic system as well as on the department's website. It can be
reasonably expected that a person engaged in leviable transactions would be aware of their
duties and obligations under the rules to give a return.
181. This offence would replace the existing strict liability offence in section 24 of the PILCC
Act that a person must not refuse or fail to give a return that the person is required to give
by or under that Act.
182. Subsection 17(2) would provide that a person would contravene the subsection if they:
• were required to give a return under the rules; and
• failed to do so in accordance with the rules.
183. The civil penalty for this contravention would be 60 penalty units.
184. A note to subsection 17(2) would explain to the reader that a person may contravene a civil
penalty provision if the person gives a false or misleading return and directs the reader to
subsection 47(1).
185. The effect of subsection 17(2) would permit the department to take civil action against a
person for failure to give a return in accordance with the rules.
186. The civil penalty would provide the Commonwealth with an alternative penalty provision to
pursuing a criminal penalty for failing to give a return as required under the rules. Providing
different compliance options would allow for the Commonwealth to pursue a penalty that is
proportionate with the severity of the contravention.
187. Using both criminal and civil liability would be consistent with the aim of providing a
graduated compliance framework with flexible enforcement options.
Failure to give notices
188. Subsections 17(3) to (4) would set out the offences and civil penalties for levy payers,
charge payers, collection agents or other persons who fail to give written notices under the
rules.
189. Subsection 17(3) would impose a strict liability offence for a person who:
• was required to give a written notice under the rules made for the purposes of
paragraph 59(2)(a) or (c); and
34
• failed to do so in accordance with the rules.
190. The penalty for this strict liability offence would be a maximum of 60 penalty units and
would not include imprisonment. This is in line with the Guide to Framing Commonwealth
Offences.
191. The proposed strict liability offence would significantly support the effectiveness of the
regulatory regime in deterring certain conduct. Certain defences such as mistake of fact
would be available: see general defences in Chapter 2, Part 2.3 of the Criminal Code.
192. Persons engaged in leviable transactions in the agricultural, fisheries and forestry sectors
should know their legal obligations and it is appropriate for this offence to be strict liability
to deter non-compliance with the obligation to give notices.
193. Specifically, those engaged in leviable transactions can reasonably be expected to be aware
of their duties and obligations to give written notices. The rules would clearly set out when
a person is required to give written notices to another person for the purposes of paragraph
59(2)(a) or (c).
194. The following paragraphs set out some examples.
195. For example, rules might be made under paragraph 59(2)(a) that require a person to give
information to a collection agent upon receipt of a request. This provision might operate
where the collection agent was required to lodge a return form and needed information from
the levy payer, the charge payer or the proprietor of a processing establishment to be able to
complete the return form. The rules will require that notices are only enforceable if they are
issued in the approved form. The approved form will include a requirement to set out the
penalty for non-compliance.
196. For example, rules might be made under paragraph 59(2)(c) that required a person who
considered that an exemption from levy or charge applied to give a written notice to:
• to the department; or
• another person who would otherwise be liable to pay an equivalent amount on their
behalf.
197. It can be reasonably expected that a person engaging in potentially leviable transactions
would be aware of and capable of complying with their duties and obligations under the
rules to give information.
198. Subsection 17(4) would provide that a person would contravene the subsection if they:
• were required to give a written notice under the rules made for the purposes of
paragraph 59(2)(a) or (c); and
• failed to do so in accordance with the rules.
35
199. The civil penalty for this contravention would be 60 penalty units.
200. The effect of subsection 17(4) would be to permit the department to take civil action against
a person for failure to give a written notice in accordance with the rules.
201. The civil penalty would provide the Commonwealth with an alternative penalty provision to
pursuing a criminal penalty for failing to give a notice as required under the rules. Providing
different compliance options would allow for the Commonwealth to pursue a penalty that
was proportionate with the severity of the contravention. The penalties that would be
imposed by this section have been set to deter non-compliance and provide proportionate
and appropriate action for a person's wrongdoing.
202. Using both criminal and civil liability would be consistent with the aim of providing a
graduated compliance framework with flexible enforcement options.
203. Notes to subsections 17(1) and (4) would direct the reader's attention to section 23 for
information about infringement notices.
Section 18 Penalties for failure to make or keep records under the rules
204. This section would set out the offences and civil penalties for levy payers, charge payers,
collection agents or other persons who fail to make or keep records under the rules.
205. Subsection 18(1) would impose a strict liability offence for a person who:
• was required to make or keep records under the rules; and
• failed to do so in accordance with the rules.
206. The penalty for this strict liability offence would be 60 penalty units.
207. The proposed strict liability offence would significantly support the effectiveness of the
regulatory regime. This strict liability offence would carry a maximum penalty of 60
penalty units.
208. This offence would replace the existing commodity-specific strict liability offences in the
PILCC Regulations, such as:
• A failure to keep records for the required length of time in accordance with
section 12 of those Regulations
• A failure to keep required records for coarse grain transactions in section 11 of
Schedule 8 of those Regulations. Similar offences exist for other levies, on a
commodity-by-commodity basis.
209. It is appropriate that this offence is of strict liability. Keeping records ensures the integrity
of the levy system, assists with compliance activities and ensures that the correct amounts
36
have been collected. Retaining records is an essential part of accountability and provides
proper oversight by the Secretary of the agricultural levy system.
210. Levy and charge payers and collection agents failing to keep required records would
severely compromise the department's ability to meet its regulatory responsibilities by
monitoring and investigating compliance with the agricultural levies legislation.
211. The requirement to keep records would be clearly set out in the specific commodity rules. It
can be reasonably expected that a person engaged in leviable transactions would be aware
of their duties and obligations under the rules to make and keep records.
212. Subsection 18(2) would provide that a person would contravene the subsection if they:
• were required to make or keep records under the rules; and
• failed to do so in accordance with the rules.
213. The civil penalty for this contravention would be 60 penalty units.
214. The effect of subsection 18(2) would be to permit the department to take civil action against
a person for failure to make and keep records in accordance with the rules.
215. The civil penalty would provide the Commonwealth with an alternative penalty provision to
pursuing a criminal penalty for failing to keep records as required under the rules. Providing
different compliance options allows for the Commonwealth to pursue a penalty that is
proportionate with the severity of the contravention. The penalties that would be imposed
by this section have been set to deter non-compliance and provide proportionate and
appropriate action for a person's wrongdoing.
216. Using both criminal and civil liability would be consistent with the aim of providing a
graduated compliance framework with flexible enforcement options.
217. Notes to subsections 18(1) and (2) would direct the reader's attention to section 23 for
information about infringement notices.
37
Part 4--Compliance and enforcement
Overview
218. Part 4 would set out the compliance and enforcement framework for the Act. The
Regulatory Powers Act would be triggered to allow a range of enforcement actions in
relation to the Act.
219. The Regulatory Powers Act provides for a standard suite of monitoring and investigation
powers, as well as enforcement through the use of civil penalties, infringement notices,
enforceable undertakings and injunctions. The standard provisions of the Regulatory
Powers Act are an accepted baseline of powers required for an effective monitoring,
investigation and enforcement regulatory regime, whilst providing adequate safeguards and
protecting important common law privileges.
220. Triggering the Regulatory Powers Act in relation to the Act would provide a more flexible
and proportionate compliance system compared to the PILCC Act. It would also serve to
reduce the administrative burden on regulators who are required to exercise different
regulatory powers by ensuring greater consistency between different regulatory regimes.
Division 1--Introduction
Section 19 Simplified outline of this Part
221. Section 19 of the Act would provide a simplified outline of Part 4 of the Act. It would
outline that the Regulatory Powers Act is triggered to permit compliance officers to take a
range of enforcement actions in relation to the Act.
222. The simplified outline would be included to assist the reader to understand the substantive
provisions of this Part; however, it is not intended to be comprehensive. The reader should
rely on the substantive provisions of this Part to which the outline relates.
Division 2--Monitoring
Section 20 Monitoring powers
Provisions subject to monitoring
223. Subsection 20(1) would provide that a provision that is a provision of the Act or the rules,
or an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules, is subject to monitoring under Part 2 of the Regulatory Powers Act.
224. A note is included to clarify that Part 2 of the Regulatory Powers Act creates a monitoring
framework and will permit compliance officers to exercise powers of entry and inspection.
38
Information subject to monitoring
225. Subsection 20(2) would provide that information given or purportedly given under a
provision of the Act or the rules is subject to monitoring under Part 2 of the Regulatory
Powers Act.
226. A note would explain that Part 2 of the Regulatory Powers Act creates a framework for
monitoring whether the information given in compliance or purported compliance with the
Act or the rules is correct and includes powers of entry and inspection.
Related provisions
227. Subsection 20(3) would provide that for the purposes of Part 2 of the Regulatory Powers
Act, as that Part applies in relation to the provisions mentioned in subsection 20(1) and the
information mentioned in subsection 20(2), there are no related provisions.
Authorised applicant and authorised person
228. Subsection 20(4) would provide that for the purposes of Part 2 of the Regulatory Powers
Act, a compliance officer is both an authorised applicant and an authorised person in
relation to:
• a provision of the Act
• an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules
• information given in compliance or purported compliance with a provision of the
Act or the rules.
Issuing officer
229. Subsection 20(5) would provide that for the purposes of Part 2 of the Regulatory Powers
Act, a magistrate is an issuing officer in relation to a provision that is a provision of the Act,
or an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules, and information given in compliance or purported compliance with a provision of the
Act or the rules.
Relevant chief executive
230. Subsection 20(6) would provide that for the purposes of Part 2 of the Regulatory Powers
Act, the Secretary is the relevant chief executive in relation to a provision that is a provision
of the Act, or an offence against the Crimes Act or the Criminal Code that relates to the Act
or the rules, and information given in compliance or purported compliance with a provision
of the Act or the rules.
231. Subsection 20(7) would provide that the Secretary may delegate to an SES employee, or
acting SES employee, in the department the Secretary's powers and functions under Part 2
39
of the Regulatory Powers Act in relation to a provision that is a provision of the Act, or an
offence against the Crimes Act or the Criminal Code that relates to the Act or the rules, and
information given in compliance or purported compliance with a provision of the Act or the
rules. Any delegation made under this subsection must be in writing.
232. Subsection 20(8) would provide that a delegate when exercising a delegated power or
function must comply with any directions of the Secretary.
233. It is intended that the delegates would be senior officials of the department, who have
knowledge and expertise in the agricultural levy system's functions, or responsibility and
direct oversight of the system. Delegating this power to senior officials (SES employees and
acting SES employees) would improve the efficiency of the administration and
management of the levy system, while ensuring that these powers are exercised with
appropriate accountability.
Relevant court
234. Subsection 20(9) would provide for the purposes of Part 2 of the Regulatory Powers Act,
the Federal Court of Australia and the Federal Circuit and Family Court of Australia
(Division 2) are relevant courts in relation to a provision that is a provision of the Act or the
rules, or an offence against the Crimes Act or the Criminal Code that relates to the Act or
the rules, and information given in compliance or purported compliance with a provision of
the Act or the rules.
Person assisting
235. Subsection 20(10) would allow a compliance officer to be assisted by other persons when
undertaking monitoring. A person could be assisted in exercising powers or performing
functions or duties under Part 2 of the Regulatory Powers Act in relation to:
• a provision of the Act or the rules
• an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules
• information given in compliance or purported compliance with a provision of the
Act or the rules (i.e. in assessing whether that information is correct).
236. It would be appropriate for a compliance officer to be assisted by other persons when
exercising powers or performing duties under Part 2 of the Regulatory Powers Act where,
for example:
• no other compliance officer is available to assist
• the premises that will be subject to monitoring are large
• there is a large number of documents or amount of material that needs to be
reviewed
40
• the other person is more familiar with the relevant premises or holds a particular set
of skills that would enable the authorised officer to effectively exercise their powers
and perform their functions and duties
• things are heavy or difficult to move without assistance.
Use of force in executing a monitoring warrant
237. Subsection 20(11) would provide for an authorised person and a person assisting to use
necessary and reasonable force against things in executing a monitoring warrant. This
would apply when executing a monitoring warrant under Part 2 of the Regulatory Powers
Act, as that Part applies in relation to:
• a provision of the Act or the rules
• an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules
• information given in compliance or purported compliance with a provision of the
Act or the rules.
238. In the absence of this provision, the use of force may amount to illegally damaging
someone's property.
239. This power is intended to help ensure the successful execution of a warrant and access to
relevant levies information by departmental officers. Access to this information is critical to
the department's enforcement activities and ensuring overall compliance with the levy
system.
240. Examples of use of force could include use of force to gain access to a premises, or to open
a secure container or a cabinet to access levies information. Without the power to use force
against things, the successful execution of warrants would depend on the cooperation of
staff at premises under investigation. While the general offence relating to the obligation to
provide reasonable facilities and assistance in sections 31 and 63 of the Regulatory Powers
Act provides incentive for co-operation, it is not a guarantee of cooperation. In the absence
of cooperation or the ability to assist, force might be considered appropriate and necessary,
such as where a matter is time sensitive or where documents may be destroyed if an
authorised person or a person assisting them leave and return later.
241. What is necessary and reasonable would depend on the circumstances that led to the use of
force and would be assessed in each case. The use of force may be required to achieve the
object of monitoring compliance with the Act. The provisions would allow monitoring
compliance to be balanced against the right of the occupier of the premises not to have their
property damaged or destroyed. The force would need to be necessary and reasonable in the
circumstances.
242. The use of force would only be permissible if it is against things (such as a door). The use
of force would not be permitted against a person. This would be a change compared to the
41
PILCC Act, which allows for the use of force without specifying whether against things or
persons (section 20(1)(c) of that Act). While the use of physical force against things is a
necessary and appropriate part of enforcement activities, the nature of enforcement
activities undertaken as part of the levy system does not necessitate or justify use of force
against individuals. This change to remove the power to use force on an individual would
ensure protection to individuals.
Extension to external Territories
243. Subsection 20(12) would provide that Part 2 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 20(1) and the information
mentioned in subsection 20(2), extends to each external Territory to which the Act extends
because of rules made for the purposes of section 6 of the Act.
244. Civil penalty provision and compliance officer would be defined in section 4.
Division 3--Investigation
Section 21 Investigation powers
Provisions subject to investigation
245. Subsection 21(1) would provide that the following are subject to investigation under Part 3
of the Regulatory Powers Act:
• a provision that is an offence against the Act
• a civil penalty provision under the Act
• an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules.
246. A note would explain that Part 3 of the Regulatory Powers Act creates a framework for
investigating whether an offence or civil penalty provision has been contravened and
includes powers of entry, search and seizure.
Related provisions
247. Subsection 21(2) would provide that for the purposes of Part 3 of the Regulatory Powers
Act, as that Part applies in relation to evidential material that relates to a provision that is an
offence against the Act, a civil penalty provision under the Act, or an offence against the
Crimes Act or the Criminal Code that relates to the Act or the rules, there are no related
provisions.
42
Authorised applicant and authorised person
248. Subsection 21(3) would provide that for the purposes of Part 3 of the Regulatory Powers
Act, a person appointed as a compliance officer under the Act is both an authorised
applicant and an authorised person in relation to evidential material that relates to:
• a provision that is an offence against the Act
• a civil penalty provision under the Act
• an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules.
Issuing officer
249. Subsection 21(4) would provide that for the purposes of Part 3 of the Regulatory Powers
Act, a magistrate is an issuing officer in relation to evidential material that relates to a
provision that is an offence against the Act, a civil penalty provision under the Act, or an
offence against the Crimes Act or the Criminal Code that relates to the Act or the rules.
Relevant chief executive
250. Subsection 21(5) would provide that for the purposes of Part 3 of the Regulatory Powers
Act, the Secretary is the relevant chief executive in relation to evidential material that
relates to a provision that is an offence against the Act, a civil penalty provision under the
Act, or an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules.
251. Subsection 21(6) would provide that the Secretary may delegate to an SES employee, or
acting SES employee, in the department the Secretary's powers and functions under Part 3
of the Regulatory Powers Act in relation to evidential material that relates to an offence
against the Act, a civil penalty provision under the Act, or an offence against the Crimes
Act or the Criminal Code that relates to the Act or the rules. Any delegation made under
this subsection must be in writing.
252. Subsection 21(7) would provide that the delegate when exercising a delegated power or
function must comply with any directions of the Secretary.
253. It is the intention that the delegates would be senior officials of the department, who have
knowledge and expertise in in the agricultural levy system's functions or responsibility and
direct oversight of the system. Delegating this power to senior officials (SES employees and
acting SES employees) would improve the efficiency of the administration and
management of the levy system, while ensuring that these powers are exercised with
appropriate accountability.
43
Relevant court
254. Subsection 21(8) would provide for the purposes of Part 3 of the Regulatory Powers Act,
the Federal Court of Australia and the Federal Circuit and Family Court of Australia
(Division 2) are relevant courts in relation to evidential material that relates to a provision
that is an offence against the Act, a civil penalty provision under the Act, or an offence
against the Crimes Act or the Criminal Code that relates to the Act or the rules.
Person assisting
255. Subsection 21(9) would allow a compliance officer to be assisted by other persons in
exercising powers or performing functions or duties under Part 3 of the Regulatory Powers
Act in relation to a provision that is an offence against the Act, a civil penalty provision
under the Act, or an offence against the Crimes Act or the Criminal Code that relates to the
Act or the rules.
256. It would be appropriate for a compliance officer to be assisted by other persons when
exercising powers or performing functions or duties under Part 3 of the Regulatory Powers
Act where, for example:
• no other compliance officer is available to assist
• the premises that will be subject to monitoring are large
• there is a large number of documents or amount of material that needs to be
reviewed
• the other person is more familiar with the relevant premises or holds a particular set
of skills that would enable the authorised officer to effectively exercise their powers
and perform their functions and duties
• things are heavy or difficult to move without assistance.
Use of force in executing an investigation warrant
257. Subsection 21(10) would provide for an authorised person and a person assisting to use
necessary and reasonable force against things in executing an investigation warrant under
Part 3 of the Regulatory Powers Act, as that Part applies in relation to:
• a provision that is an offence against the Act
• a civil penalty provision under the Act
• an offence against the Crimes Act or the Criminal Code that relates to the Act or the
rules.
258. In the absence of this provision, the use of force may amount to illegally damaging
someone's property.
44
259. This power is intended to help ensure the successful execution of an investigation warrant
and access to relevant levies information by departmental officers. Access to this
information is critical to the department's enforcement activities and ensuring overall
compliance with the levy system.
260. Examples of use of force could include use of force to gain access to a premises, or to open
a secure container or a cabinet to access levies information. Without the power to use force
against things, the successful execution of warrants would depend on the cooperation of
staff at premises under investigation. While the general offence to provide reasonable
facilities and assistance in sections 31 and 63 of the Regulatory Powers Act provides some
incentive for cooperation, it is not a guarantee of cooperation. In the absence of
cooperation, force might be considered appropriate and necessary, such as where a matter is
time sensitive or where documents may be destroyed if an authorised person or a person
assisting them leave and return later.
261. What is necessary and reasonable would depend on the circumstances that led to the use of
force and would be assessed in each case. The use of force may be required to achieve the
object of gathering material that relates to the contravention of an offence or civil penalty
provision. The provisions would allow investigating contravention to be balanced against
the right of the occupier of the premises not to have their property damaged or destroyed.
The force would need to be necessary and reasonable in the circumstances.
262. The use of force would only be permissible if it is against things (such as a door). The use
of force would not be permitted against a person. This would be a change compared to the
PILCC Act, which allows for the use of force without specifying whether against things or
persons (section 20(1)(c) of that Act). While the use of physical force against things is a
necessary and appropriate part of enforcement activities, the nature of enforcement
activities undertaken as part of the levy system does not necessitate or justify use of force
against individuals. This change to remove the power to use force on an individual would
ensure protection to individuals.
Extension to external Territories
263. Subsection 21(11) would provide that Part 3 of the Regulatory Powers Act, as that Part
applies in relation to a provision mentioned in subsection 21(1), extends to each external
Territory to which this Act extends because of rules made for the purposes of section 6 of
the Act.
264. Civil penalty provision and compliance officer would be defined in section 4.
45
Division 4--Civil penalty provisions
Section 22 Civil penalty provisions
Enforceable civil penalty provisions
265. Subsection 22(1) would provide that civil penalty provisions under the Act are enforceable
under Part 4 of the Regulatory Powers Act. The civil penalties in the Act have been
designed to encourage compliance with the Act without resorting to criminal prosecution.
Contraventions of civil penalty provisions would need to be proved in court on the balance
of probabilities.
266. Some provisions will have both criminal and civil penalties attached. Civil penalty
provisions offer an alternative to criminal prosecution. This is intended to allow for the
most appropriate sanction in the circumstances. The civil penalty framework in the Act is
intended to operate in parallel to, but distinct from, the framework of criminal offences. In
particular, while some civil penalties and criminal offences may share physical elements, it
is not intended that the criminal fault elements under the Criminal Code apply to civil
penalty proceedings.
267. It is suitable that civil penalties be used in appropriate and justifiable contexts. These
penalties have been added in the Act because:
• there are circumstances where for a breach of this Act, criminal punishment is not
merited.
• there may be instances of corporate wrongdoing. Civil penalties have traditionally
been directed against corporate wrongdoing where penalties that are typically used
against individuals may not be available (because the wrongdoing is by a corporate
entity). In this case, the financial disincentive that civil penalties provide is most
likely to be useful and effective.
• civil penalties provide alternative compliance pathways to criminal penalties. This
permits the department to pursue a penalty that is more proportional to the
contravention.
268. A note would explain that Part 4 of the Regulatory Powers Act allows a civil penalty
provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for
the contravention of the provision.
269. Relevantly, subsection 82(6) of Division 2 of Part 4 of the Regulatory Powers Act provides
that in determining the pecuniary penalty the court must take into account all relevant
matters, including:
• the nature and extent of the contravention
• the nature and extent of any loss or damage suffered because of the contravention
46
• the circumstances in which the contravention took place
• whether the person has previously been found by a court (including a court in a
foreign country) to have engaged in any similar conduct.
270. The civil penalties have been designed to encourage compliance with the Act without
resorting to criminal prosecution. Contraventions of civil penalty provisions will need to be
proved in court on the balance of probabilities.
Authorised applicant
271. Subsection 22(2) would provide that for the purposes of Part 4 of the Regulatory Powers
Act, the Secretary is an authorised applicant in relation to the civil penalty provisions under
the Act.
272. Subsection 22(3) would provide that the Secretary may delegate to an SES employee, or
acting SES employee, in the department the Secretary's powers and functions under Part 4
of the Regulatory Powers Act in relation to the civil penalty provisions under the Act. Any
delegation made under this subsection must be in writing.
273. Subsection 22(4) would provide that the delegate when exercising a delegated power or
function under subsection 22(3) must comply with any directions of the Secretary.
274. It is intended that the delegates would be senior officials of the department, who have
knowledge and expertise in the agricultural levy system's functions or responsibility and
direct oversight of the system. Delegating this power to senior officials (SES employees and
acting SES employees) would improve the efficiency of the administration and
management of the levy system, while ensuring that these powers are exercised with
appropriate accountability.
Relevant court
275. Subsection 22(5) would provide that for the purposes of Part 4 of the Regulatory Powers
Act, the Federal Court of Australia and the Federal Circuit and Family Court of Australia
(Division 2) are relevant courts in in relation to the civil penalty provisions under the Act.
Liability of the Crown
276. Subsection 22(6) would provide that Part 4 of the Regulatory Powers Act, as it applies in
relation to the civil penalty provisions under the Act does not make the Crown liable to be
subject to civil proceedings for a contravention of a civil penalty provision.
Extension to external Territories
277. Subsection 22(7) would provide that Part 4 of the Regulatory Powers Act, as that Part
applies in relation to the civil penalty provisions of the Act, extends to each external
Territory to which the Act extends because of rules made for the purposes of section 6 of
the Act.
47
278. Civil penalty provision would be defined in section 4.
Division 5--Infringement notices
Section 23 Infringement notices
Provisions subject to an infringement notice
279. Subsection 23(1) would provide that the following provisions that impose a strict liability
offence or a civil penalty are subject to an infringement notice under Part 5 of the
Regulatory Powers Act:
• penalties for failure to give return or notice under the rules (subsection 17(1), (2),
(3) or (4));
• penalties for failure to make or keep records under the rules (subsection 18(1)
or (2));
• penalties for failure to give information or produce documents required in a notice
from the Secretary (subsection 26(4) or (5));
• civil penalty provisions for false or misleading information or documents
(subsection 47(1), (3), (5) or (8)).
280. Accordingly, infringement notices would be able to be issued under the Regulatory Powers
Act in relation to identified strict liability offence and civil penalty provisions in the Act.
An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice of a
pecuniary penalty imposed on a person. It sets out the particulars of an alleged
contravention of a law.
281. Section 104(1)(k) of Division 2 of Part 5 of the Regulatory Powers Act provides that an
infringement notice must:
• state that the person may choose not to pay the amount; and
• notify them that, if they do not pay the amount, further prosecution or proceedings
may be brought.
282. The person would always be advised of the consequences of not paying the penalty, which
could be:
• for an alleged contravention of an offence provision -- the person may be
prosecuted in a court for the alleged contravention; and/or
• for alleged contraventions of a civil penalty provision -- proceedings seeking a
pecuniary penalty order may be brought.
48
283. A note would explain that Part 5 of the Regulatory Powers Act creates a framework for the
use of infringement notices that may be issued in relation to a breach of a relevant offence
or civil penalty provision.
284. It is considered appropriate from a policy perspective to include infringement notices as a
compliance option for some relatively minor strict liability offences and civil penalties
under the proposed Act. An infringement notice would not be issued unless the issuing
officer was prepared to pursue the contravention in court. It is considered that enabling
infringement notices to be issued in relation to these offences and penalties would have the
following benefits:
• improving compliance outcomes, without using costly, slow and punitive sanctions
obtained from a court
• redirecting resources from court matters to other areas of the levies administrative
framework that provide greater value (e.g. business improvements that reduce the
overall cost to industry of administering the levy system).
285. For example, it may be appropriate to issue an infringement notice where the conduct of a
person needs to be influenced but the person should be provided with an opportunity to
accept a sanction without court action. This could occur where a person was issued a notice
to provide information but failed to comply with the notice. This would be a relatively
minor breach of the legislation that could be efficiently handled in a way that encourages
future compliance. Depending on the circumstances, issuing an infringement notice could
be a proportionate response that prompts a change to behaviour without inefficient
expenditure of Commonwealth resources via a court action or placing the burden of a court
action on the person concerned.
286. As infringement notices would be new to the levies compliance framework, the department
would arrange training for relevant officers and implement administration processes to
ensure the appropriate operation of an infringement notices scheme.
Infringement officer
287. Subsection 23(2) would provide that a compliance officer is an infringement officer in
relation to provisions that impose a strict liability offence or a civil penalty under Act, for
Part 5 of the Regulatory Powers Act.
288. Under subsection 103(1) of Division 2 of Part 5 of the Regulatory Powers Act, if an
infringement officer believes on reasonable grounds that a person has contravened a
provision subject to an infringement notice under that Part, the infringement officer may
give the person an infringement notice for the alleged contravention. This will mean a
compliance officer will be able to issue infringement notices for alleged contraventions of
relevant provisions of the Act.
49
Relevant chief executive
289. Subsection 23(3) would provide that for Part 5 of the Regulatory Powers Act, the Secretary
is the relevant chief executive in relation to provisions that impose a strict liability offence
or a civil penalty under the Act.
290. Subsection 23(4) would provide that the Secretary may delegate to an SES employee, or
acting SES employee, in the department the Secretary's powers and functions under Part 5
of the Regulatory Powers Act in relation to provisions that impose a strict liability offence
or a civil penalty under Act. Any delegation made under this subsection must be in writing.
291. Subsection 23(5) would provide that the delegate when exercising a delegated power or
function under subsection 23(4) must comply with any directions of the Secretary.
292. It is intended that the delegates would be senior officials of the department, who have
knowledge and expertise in the agricultural levy system's functions or responsibility and
direct oversight of the system. Delegating this power to senior officials (SES employees and
acting SES employees) would improve the efficiency of the administration and
management of the levy system, while ensuring that these powers are exercised with
appropriate accountability.
Liability of the Crown
293. Subsection 23(6) would provide that Part 5 of the Regulatory Powers Act, as it applies in
relation to provisions that impose a strict liability offence or a civil penalty under the Act,
does not make the Crown liable to be given an infringement notice.
Extension to external Territories
294. Subsection 23(7) would provide that Part 5 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 23(1), extends to each external
Territory to which the Act extends because of rules made for the purposes of section 6 of
the Act.
295. Civil penalty provision and compliance officer would be defined in section 4.
Division 6--Injunctions
Section 24 Injunctions
Enforceable provisions
296. Subsection 24(1) would provide that the provisions of the Act and the rules are enforceable
under Part 7 of the Regulatory Powers Act.
297. A note would explain that Part 7 of the Regulatory Powers Act creates a framework for
using injunctions to enforce provisions.
50
298. Injunctions are not available as a compliance mechanism under the PILCC Act. Examples
of where injunctions could be used include:
• to compel a person to provide required information
• to prevent a person from obstructing entry to a premise
• to compel a person to pay an outstanding levy or charge.
299. Enabling injunctions to be sought under the proposed Act would complement the
department's capacity to undertake monitoring and investigation activities, and to compel
compliance with provisions in the proposed Act.
Authorised person
300. Subsection 24(2) would provide that for Part 7 of the Regulatory Powers Act, the Secretary
is an authorised person in relation to the provisions of the Act and the rules.
301. Subsection 24(3) would provide that the Secretary may delegate to an SES employee, or
acting SES employee, in the department the Secretary's powers and functions under Part 7
of the Regulatory Powers Act in relation to the provisions of the Act and the rules. Any
delegation made under this subsection must be in writing.
302. Subsection 24(4) would provide that the delegate when exercising a delegated power or
function must comply with any directions of the Secretary.
303. The effect of these provisions would be that under section 121 of Division 2 of Part 7 of the
Regulatory Powers Act, if a person has engaged, is engaging, or is proposing to engage, in
conduct in contravention of a provision enforceable under this Part, a relevant court may, on
application by an authorised person, grant an injunction:
• restraining the person from engaging in the conduct; and
• if, in the court's opinion, it is desirable to do so, requiring the person to do a thing.
304. This means that, as the Secretary or delegate will be an authorised person for the purposes
of Part 7 of the Regulatory Powers Act, the Secretary will be able to apply to a relevant
court for an injunction to restrain a person from engaging in conduct that is in contravention
of a provision of the Act or the rules.
305. It is intended that the delegates would be senior officials of the department, who have
knowledge and expertise in the agricultural levy system's functions or responsibility and
direct oversight of the system. Delegating this power to senior officials (SES employees and
acting SES employees) would improve the efficiency of the administration and
management of the levy system, while ensuring that these powers are exercised with
appropriate accountability.
51
Relevant court
306. Subsection 24(5) would provide for the purposes of Part 7 of the Regulatory Powers Act,
the Federal Court of Australia and the Federal Circuit and Family Court of Australia
(Division 2) are relevant courts in in relation to provisions of the Act and the rules.
Extension to external Territories
307. Subsection 24(6) would provide that Part 5 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 24(1), extends to each external
Territory to which the Act extends because of rules made for the purposes of section 6 of
the Act.
52
Part 5--Information management
Overview
308. Part 5 would set out requirements for the production and management of information and
documents relevant to the operation of the Act and the rules.
309. Part 5 would also set limits on the use and disclosure of relevant levy/charge information by
entrusted persons and other parties who have been provided with access to information. It
also imposes offences and civil penalties where entrusted persons and other parties who
have been provided with access to information use or disclose information other than in
accordance with the Act.
Division 1--Introduction
Section 25 Simplified outline of this Part
310. The simplified outline would be included to assist the reader to understand the substantive
provisions of this Part; however, it is not intended to be comprehensive. The reader should
rely on the substantive provisions of this Part to which the outline relates.
311. This Part contains powers for the Secretary to request and retain information and/or
documents in certain circumstances (Division 2). It also provides for the circumstances
under which entrusted persons are authorised to use or disclose relevant levy/charge
information (Division 3) and provides that entrusted persons may commit an offence or
contravene a civil penalty provision for unauthorised use or disclosure of protected
information (Division 4).
Division 2--Information gathering
Section 26 Secretary may require information or documents
312. Subsection 26(1) would provide that the Secretary may require a person to:
• give the Secretary any information relevant to the operation of the Act or the rules;
or
• produce to the Secretary any documents that are relevant to the operation of the Act
or the rules.
313. The Secretary would need to give the person a notice in writing that specified the
information or documents sought. The person would be required to provide the information
or documents within the period and in the manner specified in the notice.
314. This is a compliance tool that provides for an alternative mechanism to seeking a warrant,
to seek information from a person for initial compliance activities and securing missing
information. This would re-make a power equivalent to the power to call for information in
53
section 23 of the PILCC Act. This would be an effective way of securing missing
information, including missing returns.
315. Subsection 26(2) would provide that the period specified in the notice must be at least 14
days after the day the notice is given to the person.
316. Subsection 26(3) would require the notice to set out the associated penalties for non-
compliance with the notice and therefore clearly set out the legal consequences to the
person of not complying with the notice or giving false or leading information.
Offence
317. Subsection 26(4) would impose a strict liability offence for a person who:
• is given a written notice by the Secretary to provide relevant information or
documents; and
• fails to comply with the notice.
318. The penalty for this strict liability offence would be a maximum of 60 penalty units and
would not include imprisonment. This is in line with the Guide to Framing Commonwealth
Offences.
319. The proposed strict liability offence would significantly support the effectiveness of the
regulatory regime in deterring certain conduct. Certain defences such as mistake of fact are
available: see general defences in Chapter 2, Part 2.3 of the Criminal Code.
320. This offence would replace the existing strict liability offence in section 24 of the PILCC
Act that a person must not refuse or fail to give information that the person is required to
give by or under that Act.
321. It is appropriate that this offence is of strict liability. Failing or refusing to provide
information limits the department's ability to regulate the agricultural levy system
efficiently and effectively.
322. Specifically, failing to provide information, such as information about missing returns,
undermines the department's efficacy as a regulator and the levy system as a whole.
323. It is appropriate for this offence to be strict liability because persons engaged in leviable
transactions in the agricultural, fisheries and forestry sectors should know their legal
obligations in relation to written notices issued pursuant to the Act. The notice in writing
provided to the person would set out all the requirements and the consequences for not
complying with the notice. Therefore, it can be reasonably expected that the person was
aware of their duties and obligations to comply with the notice.
54
Civil penalty
324. Subsection 26(5) would provide that a person would contravene the subsection if they:
• were given a notice by the Secretary; and
• failed to comply with the notice.
325. The civil penalty for this contravention would be 60 penalty units.
326. The effect of subsection 26(5) would be to permit the department to take civil action against
a person for failure to comply with a notice given by the Secretary.
327. The civil penalty would provide the Commonwealth with an alternative penalty provision to
applying a criminal penalty for failing to respond to a notice. Providing different
compliance options allows for the Commonwealth to pursue a penalty that is proportionate
with the severity of the contravention. The penalties that would be imposed by this section
have been set to deter non-compliance and provide proportionate and appropriate action for
a person's wrongdoing.
328. Using both criminal and civil liability would be consistent with the aim of providing a
graduated compliance framework with flexible enforcement options.
329. Notes to subsections 26(4) and (5) would direct the reader's attention to section 23 for
information about infringement notices.
Section 27 Inspection and retention of documents and provision of certified copy of
documents
Secretary may inspect and copy documents
330. Subsection 27(1) would provide that the Secretary may inspect a document produced under
subsection 26(1) and make and retain copies of the whole or part of the document.
Secretary may retain documents
331. Subsection 27(2) would provide that the Secretary may take possession of a document
produced under subsection 26(1) and retain it for as long as reasonably necessary.
Certified copy of documents
332. Subsection 27(3) would provide that the person otherwise entitled to possession of a
document produced under subsection 26(1) is entitled to be supplied, as soon as practicable,
with a copy certified by the Secretary to be a true copy.
333. Subsection 27(4) would provide that the certified copy must be received in all courts and
tribunals as evidence as if it were the original.
55
334. Subsection 27(5) would provide that until a certified copy is supplied, the Secretary must
provide the person otherwise entitled to possession of the document, or a person authorised
by that person, reasonable access to the document for the purposes of inspecting and
making copies of the document.
56
Division 3--Authorised uses and disclosure of information
Subdivision A--Use or disclosure of relevant levy/charge information
Overview
335. Subdivision A of Division 3 of Part 5 would enable effective management of relevant
levy/charge information. Relevant levy/charge information would be defined in section 4.
The Subdivision would provide for the use and disclosure of relevant levy/charge
information, while ensuring that protected information is afforded appropriate safeguards.
336. The Subdivision would use the concept of entrusted person which would be defined as:
• the Minister
• the Secretary
• APS employees of the department and any other person employed or engaged by
the Commonwealth to provide services to the Commonwealth in connection with
the department
• any other person employed or engaged by the Commonwealth or a body corporate
that is established by a law of the Commonwealth and in a class of persons
prescribed by the rules.
337. The concept of an entrusted person is relevant to the framework for information
management, as a number of the proposed authorisations to use or disclose relevant
information will only be available to entrusted persons. The remainder of the proposed
authorisations would be exercised by the Secretary or their delegate.
338. It is considered appropriate for officers and employees of the department, as well as certain
persons engaged by the department, to have access to various authorisations to use or
disclose information under the Act. These people have a central role in managing and
administering the levies legislation.
339. There may also be situations where it is necessary for the rules to prescribe other persons
who are employed or engaged by the Commonwealth, or a body corporate that is
established by a law of the Commonwealth, as entrusted persons. For example, this could
be required if another Agency became involved in managing aspects of the levy system.
340. In this Subdivision, entrusted persons would be permitted to deal with relevant levy/charge
information in relation to the following matters:
• use or disclosure for administration of Acts or rules, or monitoring compliance with
this Act or rules;
• agricultural research or the development of agricultural policy;
57
• performing the functions of ABARES;
• disclosure for the purposes of law enforcement;
• disclosure to State or Territory body;
• disclosure to a court or tribunal;
• use or disclosure of statistics;
• use or disclosure of publicly available information;
• disclosure to the person to whom the information relates;
• use or disclosure with consent given by the person to whom the information relates;
and
• disclosure to the person who provided the information.
341. There would be a separate rule-making power for the use or disclosure of specific kinds of
relevant levy/charge information to specific classes of persons, for specific purposes.
342. A note to Subdivision A would clarify that each provision in Division 3 that authorises the
use or disclosure of information provides an authorisation for the purposes of the Privacy
Act and other laws.
Section 28 Use or disclosure for administering Acts or rules or for agricultural research
or policy development etc.
343. This section would authorise the use or disclosure of relevant levy/charge information for:
• administration of the agricultural levy system;
• agricultural research or the development of agricultural policy; and
• performing the functions of ABARES.
Administration of Acts or rules or monitoring compliance with this Act or rules
344. Subsection 28(1) would provide that an entrusted person is permitted to use or disclose
relevant levy/charge information for the following purposes in relation to the administration
of the agricultural levy system:
• administering this Act or the rules or monitoring compliance with this Act or the
rules,
• assisting another person to administer this Act or the rules or monitor compliance
with this Act or the rules,
58
• administering the Disbursement Act or the rules under that Act, or
• assisting another person to administer the Disbursement Act or the rules under that
Act.
345. This provision is necessary to enable the agricultural levy system to be administered,
including the collection of levies, charges and other amounts, the disbursement of amounts
under the proposed Disbursement Act, and monitoring and enforcing compliance where
necessary.
Agricultural research or the development of agricultural policy
346. Subsection 28(2) would provide that an entrusted person may use or disclose relevant
levy/charge information for the purposes of agricultural research and/or the development of
agricultural policy. This purpose is in keeping with the objectives of the agricultural levy
system.
347. As a partnership with industry, the policy intention is that all elements of the levy system
are conducted for the benefit of the relevant levied primary industry sectors. Within this
scope, supporting agricultural research and development is a core purpose of the
agricultural levy system. It is intended that this provision would enable entrusted persons to
undertake research and policy development beneficial to Australia's agricultural, fisheries
and forestry sectors.
Performing functions of ABARES
348. Subsection 28(3) would provide that an entrusted person who is an ABARES staff member
is permitted to use or disclose relevant levy/charge information in the course of or for the
purposes of performing the functions of the part of the department known as ABARES or
assisting another person to perform those functions.
349. It is appropriate for ABARES staff members to access data as part of their work, as they are
an interface between research and policy in the domain of agriculture, natural resource
economics and sciences. This research and associated policy development supports
agriculture and complements the purposes of the levy system. It is intended that these
provisions would enable ABARES and the ABS to collaborate on research beneficial to
Australia's agricultural, fisheries and forestry sectors.
350. Entrusted person and ABARES staff member would be defined in section 4.
Exception
351. Subsection 28(4) would make clear that subsections 28(2) and (3) do not apply to the
disclosure of personal information.
352. Personal information would be defined in section 4.
59
Section 29 Disclosure to Commonwealth entities
Staff members of the ABS
353. Subsection 29(1) would authorise an entrusted person to disclose, or provide electronic
access to, relevant levy/charge information to an ABS staff member, if the disclosure or
access is for the purposes of assisting the Bureau to perform its functions or duties, or
exercise its powers.
354. Under sections 27 and 27A of the PILCC Act, the ABS could access information broadly
equivalent to relevant levy/charge information. It is intended that subsection 29(1) of the
Act would continue to enable the ABS to undertake research and produce statistics
beneficial to Australia's agricultural, fisheries and forestry sectors, including through
collaboration with ABARES as needed.
Staff members of prescribed Commonwealth entities
355. Subsection 29(2) would authorise an entrusted person to disclose, or provide electronic
access to, relevant levy/charge information to a staff member of a Commonwealth entity, if
the disclosure or access is for the purposes of assisting the entity to undertake agricultural
research or develop agricultural policy or both. The entity would have to be prescribed by
the rules for the purpose of this subsection to enable disclosure to occur.
356. As a partnership with industry, the policy intention is that all elements of the levy system
are conducted for the benefit of the relevant levied primary industry sectors. Within this
scope, supporting agricultural research and development is a core purpose of the
agricultural levy system. It is intended that this provision would enable relevant
Commonwealth entities to undertake research and policy development beneficial to
Australia's agricultural, fisheries and forestry sectors.
357. Commonwealth entity would be defined in section 4.
Section 30 Use or disclosure of information for the purposes of other Acts
358. Subsection 30(1) would authorise an entrusted person to use or disclose relevant
levy/charge information if the use or disclosure is for the purposes of the administration of
an Act that is administered by the Minister. This subsection would not apply to this Act or
the Disbursement Act, which a note would explain is addressed under section 28.
Exception - information to be used for maintaining register of levy payers or charge payers etc
359. Subsection 30(2) would provide that the use or disclosure of relevant levy/charge
information for the purposes of other Acts allowed for under subsection 30(1) does not
apply in the following circumstances:
a. if the levy/charge information is:
60
• the name, contact details, ABN (if any) and ACN (if any) of any person who has
paid, or is or was liable to pay, levy or charge in relation to a collection
commodity/service (paragraph 32(a));
• details relating to the amount of levy or charge that the person has paid, or is or
was liable to pay, in relation to that collection commodity/service
(paragraph 32(b));
• for levy or charge in relation to an animal product, plant product, fungus product
or algal product--any details prescribed by the rules for the purposes of this
paragraph, being details that relate to the production or processing of that product
(paragraph 32(c)); and
b. if the levy/charge information was obtained for the purpose of being disclosed to, or
of access to it being provided to, a declared recipient body or a statutory recipient
body under subsection 32 for a purpose covered by subsection 42(1).
360. This provision operates in relation to information that is specifically collected in order to
establish or maintain a levy or charge payer register. The policy intention of this provision
is to distinguish this information from information that is obtained for the purposes of
collecting amounts owed by levy payers, charge payers and collection agents, or monitoring
compliance with their payment obligations. For example, information such as:
• information on return forms obtained to assess whether a person owes or has paid
an amount to the department
• information obtained to assess whether a person has kept records in accordance
with their obligations.
361. Information collected specifically to establish or maintain a levy or charge payer register is
not disclosed in the same manner as other relevant levy/charge information. This is
consistent with how this information was treated under sections 27A and 27B of the PILCC
Act.
Section 31 Disclosure of information about persons giving returns and collection agents
362. Subsection 31(1) would authorise an entrusted person to disclose specified information
about persons giving returns, or collection agents, to a body or person listed in subsection
31(2).
363. Subsection 31(2) would provide that the information specified in subsection 31(1) may be
disclosed to:
a. a body that receives money under the Disbursement Act;
b. an industry body that is representative of levy payers, charge payers, or collection
agents;
61
c. any other person or body that is specified in an approval in force under this section.
Approvals
364. Subsection 31(3) would provide that a person or body may make a request to the Secretary
for an approval under subsection 31(4). Any request for an approval must be made in
writing.
365. Subsection 31(4) would require that if a person or body makes a request for an approval
under subsection 31(3), the Secretary must grant or refuse to grant an approval. The
Secretary must grant or refuse an approval in writing.
366. Subsection 31(5) would require that if the Secretary grants an approval a copy must be
provided to the person or body.
367. Subsection 31(6) would require that if the Secretary refuses to grant an approval the
Secretary must give the person or body written notice of the refusal and of the reasons for
the refusal.
368. Subsection 31(7) would provide that an approval given by the Secretary in writing under
subsection 31(4) is not a legislative instrument within the meaning of section 8 of the
Legislation Act.
Use of information
369. Subsections 31(8) to (10) would set out the purposes for which information, received or
accessed under subsection 31(1), may be used by the person or the body.
370. Subsection 31(8) would provide that if a person or body receives, or is provided access to
information, that person may use the information for consultation on possible changes to
provisions of the regulations or rules made under:
• this Act;
• the Excise Act;
• the Customs Act; or
• the Services Act.
371. This provision would enable entities such as representatives of levy payers, charge payers
or collection agents to conduct consultation relating to proposals to change levy or charge
imposition or collection settings.
372. Subsection 31(9) would provide if a body that receives money under the Disbursement Act
receives, or is provided access to information under subsection 31(1), that information may
be used by the body for the purpose of the body performing any of its functions under a law
62
of the Commonwealth, or any of its obligations under a contract, deed of agreement, or
other agreement between the Commonwealth and the body.
373. Subsection 31(10) would provide if an industry body that is representative of levy payers,
charge payers, or collection agents receives, or is provided access to information under
subsection 31(1), then that body may use the information for the purpose of the body
performing:
• any of its functions under the Excise Act, Customs Act or Services Act; or
• any of its obligations under a contract, deed of agreement or other agreement
between the Commonwealth and the body.
Section 32 Disclosure of information to be used for maintaining register of levy payers
or charge payers etc.
374. Section 32 would authorise an entrusted person to disclose specified information about levy
payers and charge payers to a declared recipient body or a statutory recipient body. The
policy intention is that this provision would apply in relation to information that is collected
for the primary purpose of establishing or maintaining a levy or charge payer register.
375. The policy intention is to distinguish this information from information that is collected for
administering the agricultural levy system. This provision would enable information
obtained specifically to create or maintain a levy or charge payer register to be disclosed to
a statutory or declared recipient body. These recipient bodies are colloquially known as
RDCs.
376. A note explains the section would apply separately for each collection commodity/service
in respect of which a person has paid, or is or was liable to pay, levy or charge.
377. A further note would direct the reader to Subdivision B for provisions about the use or
disclosure of the information by the statutory or declared recipient body.
Section 33 Disclosure for the purposes of law enforcement
378. This section would authorise an entrusted person to disclose relevant levy/charge
information for specified law enforcement purposes. The section would allow disclosure to
a Commonwealth entity, a State or Territory body, the Australian Federal Police and the
police force or police service of a State or Territory.
379. The circumstances in which subsection 33(1) would authorise the disclosure of relevant
levy/charge information would be where:
• the entrusted person reasonably believes the disclosure is necessary for the
enforcement of the criminal law, or a law imposing a pecuniary penalty (such as a
civil penalty provision), or for the protection of public revenue; and
• the functions of the relevant body include that enforcement or protection.
63
380. There are additional requirements in the case of disclosure to a State or Territory body or
the police force or police service of a State or Territory:
• the specified body must have undertaken not to use or further disclose the
information, except in accordance with an agreement that applies in relation to the
information, that is in force between the Commonwealth and the State or Territory;
and
• the entrusted person is satisfied that the information will only be used or further
disclosed by the specified body in accordance with the agreement.
381. It is appropriate that relevant levy/charge information can be disclosed to such law
enforcement bodies in these circumstances.
Section 34 Disclosure to State or Territory body
382. This section would authorise the disclosure of relevant levy/charge information by the
Secretary to a State or Territory body. The Secretary may only disclose this information if
the Secretary reasonably believes that disclosing the information is necessary for the
purposes of the administration of a law of a State or Territory. In addition, the State or
Territory body must have undertaken not to use or disclose the information except in
accordance with an agreement that:
• is between the Commonwealth and the State or Territory; and
• applies in relation to the information.
383. The Secretary must be satisfied that the information will be used or further disclosed only in
accordance with the agreement.
384. The purpose of this section is to enable relevant levy/charge information to be disclosed
where it is necessary to do so for the purposes of administering State or Territory laws. This
could occur where State or Territory laws interact with the agricultural levy system. For
example:
• A levy or charge payer may be exempt from a State or Territory payment if they
have paid or have an obligation to pay a levy or charge under the agricultural levies
legislation. This provision would enable the department to enter into an agreement
with relevant State or Territory agencies to enable relevant levy/charge information
to be shared in these circumstances.
• The department might enter into an agreement with a State or Territory body under
subsection 12(1) for that body to collect levy, charge or equivalent amounts on
behalf of the Commonwealth. This provision would enable the department to
disclose relevant levy/charge information where necessary for the State or Territory
body to carry out its role.
64
385. This section provides sufficient protection of relevant levy/charge information by requiring:
• there to be an agreement between the Commonwealth and the State or Territory in
relation to the information; and
• the Secretary to be satisfied that the information will only be used or disclosed in
accordance with that agreement.
Section 35 Disclosure to a court, tribunal etc
386. Subsection 35(1) would permit an entrusted person to disclose relevant levy/charge
information to a court exercising federal jurisdiction.
387. Subsection 35(2) would permit an entrusted person to disclose relevant levy/charge
information to a court, or a tribunal, authority or person that has the power to require the
answering of questions or the production of documents. This disclosure would need to be
for the purposes of:
• the enforcement of a law of the Commonwealth; or
• assisting the court, tribunal, authority or person to make or review an administrative
decision that it is required or authorised to be made, or reviewed, under a law of the
Commonwealth.
388. This section is not intended to impose a standalone obligation on an entrusted person to
disclose relevant information to a court, or to a tribunal, authority or another person. Rather,
the intention of section 35 is to ensure that if an entrusted person is required to provide
relevant information to a court, or to a tribunal, authority or person with the power to
require such information, then the entrusted person would not be contravening a civil
penalty or committing an offence under section 45 in doing so.
Section 36 Use or disclosure of statistics
389. This section would permit an entrusted person to use or disclose relevant levy/charge
information that is of a statistical nature. Information would only be considered to be
'statistical' if it was unlikely to enable an individual to be identified.
390. This permitted purpose recognises that the disclosure of statistics that are not likely to
enable the identification of a person is unlikely to cause harm to any person. It would also
enable the statistics to be used for the benefit of Australia's agricultural, fisheries and
forestry sectors.
Section 37 Use or disclosure of publicly available information
391. This section would permit an entrusted person to use or disclose relevant levy/charge
information if the information has already been lawfully released into the public domain.
392. This authorisation recognises that there is no justifiable reason to prevent the disclosure of
information that is lawfully publicly available and therefore already accessible.
65
Section 38 Disclosure to person to whom information relates
393. This section would permit an entrusted person to disclose relevant levy/charge information
to the person who the information is about. This provision would remove any doubt that
such a disclosure is authorised by the disclosure regime set out in the Act.
394. This permitted purpose recognises that the interests of the person to whom relevant
information relates may benefit from, and will not be adversely affected by, disclosure of
the information to themselves.
Section 39 Use or disclosure with consent
395. This section would permit an entrusted person to disclose relevant levy/charge information
that relates to a person if, the person has given their consent to the use or disclosure, and the
use or disclosure is in accordance with that consent.
396. This permitted purpose recognises that there is no justifiable reason to prevent the use or
disclosure of information where the person concerned consents to the use or disclosure. It is
intended that consent would include express consent or implied consent, consistent with the
Privacy Act.
Section 40 Disclosure to a person who provided information
397. This section would permit an entrusted person to disclose relevant levy/charge information
to the person who provided the information.
398. This permitted purpose recognises that there is usually no justifiable reason to prevent the
disclosure of information to the person who provided it in the first place, as that person will
have already seen the information.
Section 41 Use or disclosure authorised by rules
399. This section would authorise the use or disclosure of relevant levy/charge information by a
person in specified circumstances.
400. Subsection 41(1) would authorise the use of relevant levy/charge information by a person
if:
• the person is included in a class of persons prescribed by rules made for the
purposes of paragraph 41(1)(a); and
• the use is for a purpose prescribed by rules made for the purposes of
paragraph 41(1)(b); and
• the information is of a kind prescribed by rules made for the purposes of
paragraph 41(1)(c); and
• the use complies with any conditions, prescribed by rules made for the purposes of
paragraph 41(1)(d).
66
401. Subsection 41(2) would authorise the disclosure of relevant levy/charge information by a
person if:
• the person is included in a class of persons prescribed by rules made for the
purposes of paragraph 41(2)(a); and
• the disclosure is for a purpose prescribed by rules made for the purposes of
paragraph 41(2)(b); and
• the information is of a kind prescribed by rules made for the purposes of
paragraph 41(2)(c); and
• the disclosure complies with any conditions prescribed by rules made for the
purposes of paragraph 41(2)(d).
402. Subsection 41(3) would provide that the rules made for the purposes of section 41 must
specify the legislative power or powers of the Parliament in respect of which the rules are
made. This would ensure that any new authorisations for the use or disclosure of relevant
levy/charge information will be appropriately supported.
403. Subsection 41(4) would provide that other provisions of Subdivision A of Division 3 of Part
5 of the Act do not limit rules that may be made for the purposes of section 41. The
intention is that rules under section 41 may prescribe the use or disclosure of relevant
levy/charge information by a range of different classes of persons and in a range of
circumstances that are not limited by the scope of this Subdivision. For example, rules
could prescribe the use or disclosure of relevant levy/charge information:
• for a purpose that is the same or different as another authorisation in this
Subdivision; and
• for a class of persons that is the same or different as another authorisation in this
Subdivision.
404. The rules under section 41 would be able to be tailored to particular circumstances, by
prescribing:
• the kinds of relevant levy/charge information that may be used or disclosed
(paragraph 41(1)(c) and (2)(c));
• the classes of persons who may use or disclose the information (paragraph 41(1)(a)
and (2)(a)); and
• the purposes for which the information could be used or disclosed
(paragraph 37(1)(b) and (2)(b)).
405. In addition, the rules would be able to impose appropriate limitations on the use or
disclosure of the information, by requiring certain conditions to be complied with (41(1)(d)
and (2)(d)). For example, this may include requiring the person who is using or disclosing
67
the relevant levy/charge information to ensure the confidentiality of the information or to
abide by certain agreements between the Commonwealth and the person in relation to the
information.
406. Rules made under section 41 would be legislative instruments, which would be subject to
parliamentary oversight through the disallowance process outlined in the Legislation Act.
As such, the Parliament would have oversight of any future rules that allow the use or
disclosure of relevant levy/charge information. The authorisation in section 41 is necessary
to allow the rules to prescribe the use or disclosure of relevant levy/charge information in
other circumstances which may arise in the future and which may require expedient
authorisation to effectively manage risks.
407. Further, a situation may arise in the future where a new collection agreement is formed
between the Commonwealth and an entity under Division 4 of Part 2 of the proposed Act.
As part of the entity's role in collecting levy, charge or equivalent amounts on behalf of the
Commonwealth, it may be necessary for the entity to use and/or disclose relevant
levy/charge information. In such a case, it may be considered necessary to prescribe rules
under section 41 to allow for the use or disclosure of relevant information in certain
circumstances.
408. As another example, a situation may arise in the future where another Commonwealth
agency is assisting the department in the administration of a particular levy or charge. The
department currently has a memorandum of understanding with the Australian Customs and
Border Protection Service for the collection of the forest industries products import charge.
Such an arrangement could necessitate the Commonwealth agency using and/or disclosing
relevant levy/charge information. In such a case, it may be considered necessary to
prescribe rules under new section 41 to allow for the use or disclosure of relevant
information in certain circumstances.
Subdivision B--Secondary use or disclosure for declared recipient or statutory
recipient bodies
Section 42 Secondary use of information for maintaining register of levy payers or
charge payers etc.
409. This section would regulate the secondary use of information about levy payers and charge
payers by a declared recipient body or a statutory recipient body. These recipient bodies are
colloquially known as research and development corporations (RDCs).
410. The purpose of the provision is to provide robust protections against unauthorised use of
levy payer data. This section would provide for permissions and limitations on the purposes
for which information about levy payers and charge payers which a declared recipient body
or a statutory recipient body receives, or is provided access to, under subsection 32 can be
used.
411. Subsection 42(1) would specify the permitted purposes for which a declared recipient body
or a statutory recipient body may use information about levy payers and charge payers
68
received, or accessed, under section 32. A declared recipient body or a statutory recipient
body could use the information for the following purposes:
• to maintain a register of levy payers or charge payers (paragraph 42(1)(a));
• to maintain a register of those persons eligible to vote in any poll conducted by, or
on behalf of, the body (paragraph 42(1)(b));
• in performing any of its functions under a law of the Commonwealth
(paragraph 42(1)(c));
• in performing any of its obligations under a contract, deed of agreement or other
agreement between the Commonwealth and the body (paragraph 42(1)(d));
• for a declared recipient body--to determine whether a person is, or remains eligible
to be, a member or shareholder of the body (paragraph 42(1)(e)).
412. These purposes are consistent with those that were prescribed under section 27B of the
PILCC Act for the use of the same information that is prescribed by section 32 of this Act.
413. The development of levy payer registers has been identified in a number of reviews and
inquiries as important to the ongoing strength of Australia's rural R&D system. The PILCC
Act was amended in 2016 by the Primary Industries Levies and Charges Collection
Amendment Act 2016, to enable the establishment of levy and charge payer registers. This
followed recommendations from the Senate Rural and Regional Affairs and Transport
References Committee's 2014/15 inquiry into Industry structures and systems governing the
imposition of and disbursement of marketing and R&D levies in the agricultural sector.
414. The primary policy intention of levy payer registers is to improve consultation and
communication between RDCs and levy payers, and to ensure the accurate allocation of
voting entitlements (where relevant). It is not required for collecting amounts owed or
monitoring compliance with obligations under the levy system. As such, the information
collected for levy payer registers is distinguished from that administrative information. This
is consistent with how this information was treated under sections 27A and 27B of the
PILCC Act.
415. Levy payer registers allow RDCs to identify and consult directly with the levy and charge
payers who fund their activities. Through this engagement with levy payers, RDCs are able
to better align research investments to industry priorities and contribute to a more
profitable, competitive and sustainable agricultural sector.
416. Subsection 42(1) would also enable other critical functions of declared and statutory
recipient bodies, including:
• maintaining a register of levy or charge payers eligible to vote in a 'levy poll'
conducted by, or for the body. This would enable the polling body to ensure
accuracy in the allocation of voting entitlements. At the time of writing, levy polls
are only in place for dairy and wool, but this would be applicable to any polls
69
established under Part 7 of the Excise Act, Part 6 of the Customs Act and Part 5 of
the Services Act.
• enabling declared recipient bodies to accurately determine whether a person is
eligible to be a member or a shareholder of the body.
417. Subsection 42(2) would provide that a declared recipient body or a statutory recipient body
commits an offence if the body receives information, or is provided with access to,
information under section 32 and the body uses that information in a manner not in
accordance with the permitted purposes specified in subsection 42(1).
418. The penalty for this offence would be 240 penalty units.
419. The maximum penalty for this offence is intended to deter unauthorised uses or disclosures
of information and to be proportionate to the likely harm that may result from unauthorised
use or disclosure. In particular, the unauthorised use or disclosure of information can
undermine the confidence participants have in the agricultural levy system.
Section 43 Secondary disclosure of statistics or of information to approved person or
body
420. Subsection 43(1) would provide that a declared recipient body or a statutory recipient body
that receives, or is provided access to, information under subsection 32 may:
• publicly disclose the information that is statistical information that would be
unlikely to identify an individual (paragraph 43(1)(a)); or
• disclose the information to another person or body that is specified in an approval
in force under subsection 44 (paragraph 43(1)(b)).
421. Limiting disclosure of information to statistical information unless there is an approval in
force aims to protect the integrity and security of levy and charge payer personal
information.
422. Subsection 43(2) would provide that a declared recipient body or a statutory recipient body
commits an offence if the body receives information, or is provided access to, information
under subsection 32, and the body discloses that information in a manner not in accordance
with the permitted purposes specified in subsection 43(1).
423. The penalty for this offence would be 240 penalty units.
424. The maximum penalty for this offence is intended to deter unauthorised uses or disclosures
of information and to be proportionate to the likely harm that may result from unauthorised
use or disclosure. In particular, the unauthorised use or disclosure of information can
undermine the confidence participants have in the agricultural levy system.
70
Section 44 Approvals for secondary disclosure by declared recipient bodies or statutory
recipient bodies
425. Subsection 44(1) would allow a declared recipient body or a statutory recipient body to
request an approval from the Secretary under subsection 44(3). Any request for an approval
must be made in writing.
426. Subsection 44(2) would set out the purposes for which a declared recipient body or a
statutory recipient body may make a request for an approval. The purpose of this subsection
is to ensure that approvals are granted only for the following specified purposes:
• for a research and development activity (paragraph 44(2)(a));
• for marketing activities (paragraph 44(2)(b));
• for biosecurity purposes (paragraph 44(2)(c));
• for National Residue Survey purposes (paragraph 44(2)(d));
• in connection with any activity carried out, or proposed to be carried out, by the
declared recipient body or statutory recipient body for the benefit of levy payers or
charge payers in relation to collection commodities/services of a particular kind
(paragraph 44(2)(e)).
427. For example, a declared or statutory recipient body might want to disclose information to:
• a company engaged to manage a levy payer register on its behalf;
• a polling organisation engaged to run a levy poll on its behalf;
• an organisation as part of a biosecurity response;
• an industry representative body or another entity for consulting levy payers on a
levy amendment proposal; or
• to another entity to support the declared or statutory recipient body to undertake
activities for the benefit of the industry it serves.
428. Subsection 44(3) would require the Secretary to grant an approval or refuse an approval
where a declared recipient body or a statutory recipient body makes a request for an
approval under subsection 44(1).
429. Subsection 44(4) would require an approval to specify a person or body for the purposes of
paragraph 43(1)(b).
430. Subsection 44(5) would provide that an approval would be made on the condition that the
declared recipient body or statutory recipient body may only disclose the information to the
person or body that is specified, and only for the purposes specified in the approval. A
71
purpose specified in an approval must be covered by subsection 44(2). This would provide
a protection to ensure that information is not re-purposed later to additional purposes that:
• were not covered by the original approval; or
• are outside the scope of the permitted purposes in subsection 44(2).
431. Subsection 44(6) would allow the Secretary to grant an approval subject to any other
conditions that would be specified in the approval.
432. Subsection 44(7) would provide that if the Secretary grants an approval to a declared
recipient body or a statutory recipient body, the Secretary must give the body a copy of the
approval.
433. Subsection 44(8) would provide that if the Secretary refuses to grant an approval to a
declared recipient body or a statutory recipient body, the Secretary must give the body a
written notice of the refusal that provides reasons for the refusal.
434. Subsection 44(9) would provide that an approval given by the Secretary in writing under
subsection 44(3) is not a legislative instrument within the meaning of section 8 of the
Legislation Act.
Civil penalty
435. Subsection 44(10) would provide that a declared recipient body or a statutory recipient
body contravenes the subsection if an approval granted to the body under subsection 44(3)
is in force, and subject to conditions that the body fails to comply with through an act or
omission.
436. The civil penalty for this contravention would be 60 penalty units.
437. The penalty that would be imposed by this section has been set to deter non-compliance and
provide proportionate and appropriate action for a body's wrongdoing. In particular, use or
disclosure of information outside the terms of an approval can undermine the confidence
participants have in the agricultural levy system.
438. Declared recipient body, statutory recipient body, marketing activities and research and
development activity would be defined in section 4.
Division 4--Protected information
Section 45 Offence and civil penalty--use or disclosure of protected information
439. This section would provide robust protections for protected information (see
subsection 45(3)) by providing a range of offences for unauthorised use or disclosure of
protected information by entrusted persons. The proposed combination of a fault-based
offence and civil penalty provision would provide a proportionate and flexible set of
72
deterrents for entrusted persons who use or disclose protected information without
authorisation under the Act or another law.
440. Subsection 45(1) prohibits an entrusted person from using or disclosing protected
information. An exception to this is where the use or disclosure of the protected information
is required or authorised by the Act, or a law of the Commonwealth, or a law of a state or
territory as prescribed by the rules (subsection 45(4)).
441. A further exception is where a person has disclosed the information in good faith
(subsection 45(5)).
442. A person who seeks to rely on the exceptions in subsection 45(4) or (5) bears the evidential
burden of proving the exception. These defences reverse the usual burden of proof because
the relevant matters would be peculiarly within the knowledge of the defendant. It would be
significantly more difficult and costly for the Commonwealth (as the prosecution or
applicant) to prove the relevant matters. Information about which law the defendant was
purporting to rely on or whether the defendant acted in good faith in using or disclosing the
information would be peculiarly within the knowledge of the defendant, who would be
expected to understand their reasons for disclosure.
443. The reversal of the evidential burden of proof in relation to these defences is consistent with
general principles of criminal responsibility. Under subsection 13.3(3) of the Criminal
Code, a defendant who wants to rely on any exception, provided by the law creating an
offence, bears an evidential burden in relation to that matter. The exception need not
accompany the description of the offence.
Offence
444. Subsection 45(1) would provide that a person commits an offence if they are, or have been,
an entrusted person and they use or disclose protected information. They must have
obtained or generated the protected information in the course of:
• administering, or monitoring compliance with, the Act or the rules; or
• assisting another person to administer, or monitor compliance with, the Act or the
rules.
445. The penalty for this fault-based offence would be 12 months imprisonment.
446. The penalty that would be imposed by this section has been set to deter unauthorised use or
disclosure of protected information and provide proportionate and appropriate punishment
for a person's wrongdoing. The use or disclosure of protected information without
authorisation under the Act or another law can cause harm to individuals and can undermine
confidence in the integrity of the agricultural levy system. The maximum penalty of 12
months imprisonment would also be consistent with similar penalties under other
legislation.
73
Civil penalty
447. Subsection 45(2) would provide that a person contravenes the subsection if they are, or
have been, an entrusted person and they use or disclose protected information. They must
have obtained or generated the protected information in the course of:
• administering, or monitoring compliance with, the Act or the rules; or
• assisting another person to administer, or monitor compliance with, the Act or the
rules.
448. The civil penalty for this contravention would be 60 penalty units.
449. The proposed maximum civil penalty is intended to deter unauthorised use or disclosure of
protected information, and to be proportionate to the likely harm that may result. In
particular, the use or disclosure of protected information without authorisation under the
Act or another law can cause harm to individuals and can undermine confidence in the
integrity of the agricultural levy system. The maximum civil penalty of 60 penalty units
would also be consistent with similar penalties under other legislation.
Protected information
450. Subsection 45(3) would provide that for the purposes of subsections 45(1) and (2),
protected information is information (including commercially sensitive information) the
disclosure of which would reasonably be expected to found an action by a person (other
than the Commonwealth) for breach and duty of confidence.
Exception--required or authorised by law
451. Subsection 45(4) would clarify that subsection 45(1) or (2) do not apply if the use or
disclosure of the information is required or authorised by:
• the Act;
• another law of the Commonwealth; or
• a law of a State or Territory prescribed by the rules made for the purposes of
paragraph 45(4)(b).
452. This would ensure that authorised uses and disclosures of protected information are not
subject to the civil penalty and offence provisions.
453. The option to prescribe a law of a State or Territory will ensure consistency with similar
Commonwealth legislation. It will also enable flexibility in the future to add such laws, so
that entrusted persons have clarity and are not exposed to liability if a relevant State or
Territory law might require disclosure of protected information.
74
Exception--good faith
454. Subsection 45(5) would clarify that subsection 45(1) or (2) do not apply if the person uses
or discloses the information in good faith in the purported administration of, or monitoring
of compliance with, the Act or the rules or in assisting another person in the purported
administration of, or monitoring of compliance with, the Act or the rules.
455. Notes to subsections 45(4) and (5) would explain that a defendant bears an evidential
burden in relation to the matters in the respective subsections and refer the reader to
subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.
456. Entrusted person would be defined in section 4.
75
Part 6--Other matters
Overview
457. Part 6 would set out set out various matters, including reconsideration and review of
decisions and self-incrimination, as well as other provisions for the appointment of
compliance officers and information officers, delegation by the Secretary and the making of
rules by the Secretary.
Division 1--Introduction
Section 46 Simplified outline of this Part
458. The simplified outline is included to assist the reader to understand the substantive
provisions of this Part; however, it is not intended to be comprehensive. The reader should
rely on the substantive provisions of this Part to which the outline relates.
Division 2--Civil penalty provisions for false or misleading information or
documents
Section 47 Civil penalty provisions for false or misleading information or documents
459. This section would set out the civil penalties for persons who:
• make false or misleading returns (subsection 47(1));
• provide false or misleading documents or information (subsection 47(3) and (5)); or
• make false or misleading statements in relation to an application for an exemption
from returns (subsection 47(8)).
460. This is intended to operate alongside and in addition to offences in the Criminal Code, such
as section 137.1 (giving false or misleading information) and section 137.2 (producing false
or misleading documents).
461. The effect of this section would be to permit the department to take civil action against a
person in these circumstances.
462. The civil penalty would provide the Commonwealth with an alternative penalty provision to
applying a criminal penalty for providing false or misleading returns, information,
documents or statements. Providing different compliance options allows for the
Commonwealth to pursue a penalty that is proportionate with the severity of the
contravention. The penalties that would be imposed by this section have been set to deter
non-compliance and provide proportionate and appropriate action for a person's
wrongdoing.
463. Using both criminal and civil liability would be consistent with the aim of providing a
graduated compliance framework with flexible enforcement options.
76
Returns
464. Subsection 47(1) would apply in relation to giving returns. The subsection would provide
that a person would contravene the subsection if they:
• gave a return under the rules (paragraph 47(1)(a));
• knowing that the return was false or misleading (paragraph 47(1)(b)).
465. For a contravention to be established, the return would need to be false or misleading in a
material particular. This would mean that minor errors would not be subject to civil penalty
proceedings.
466. The civil penalty for contravention of this subsection would be 60 penalty units.
467. A note would explain to the reader that a defendant bears an evidential burden in relation to
the exception to a contravention, namely that the return is not false or misleading in a
material particular and direct the reader to section 96 of the Regulatory Powers Act.
Other documents
468. Subsection 47(3) would apply in relation to other documents provided to the Secretary. The
subsection would provide that a person would contravene the subsection if they:
• produced a document to the Secretary in compliance or purported compliance with
a requirement under subsection 26(1) (paragraph 47(3)(a)); and
• did so knowing that the document was false or misleading (paragraph 47(3)(b)).
469. The document would need to be false or misleading in a material particular. This would
mean that minor errors would not be subject to civil penalty proceedings. The civil penalty
for contravention of this subsection would be 60 penalty units.
470. A note would explain to the reader that a defendant bears an evidential burden in relation to
the exception to a contravention, namely that the document is not false or misleading in a
material particular and direct the reader to section 96 of the Regulatory Powers Act.
Information
471. Subsection 47(5) would apply in relation to information given to the Secretary under
subsection 26(1). This subsection would provide that a person would contravene the
subsection if they:
• give information to the Secretary in compliance or purported compliance with a
requirement under subsection 26(1) (paragraph 47(5)(a)); and
• did so knowing that the information was false or misleading
(subparagraph 47(3)(b)(i)); or
77
• did so knowing that the information omitted any matter or thing without which the
information was misleading (subparagraph 47(3)(b)(ii)).
472. Under subsections 47(6) and (7), the information would need to either:
• be false or misleading in a material particular; or
• have omitted a matter or thing without which the information is misleading in a
material particular.
473. This would mean that minor errors would not be subject to civil penalty proceedings.
474. The civil penalty for contravention of this subsection would be 60 penalty units.
475. A note would explain to the reader that a defendant bears an evidential burden in relation to
the exception to a contravention, namely that the information is not false or misleading in a
material particular or the information omitted a matter or thing without which the
information is misleading in a material particular and direct the reader to section 96 of the
Regulatory Powers Act.
Application for return exemption
476. Subsection 47(8) would apply in relation to an application for an exemption from the
obligation to give a return. This subsection would provide that a person contravenes the
subsection if they:
• made a statement in, or in connection with, an application made under rules made
for the purposes of paragraph 59(2)(e). The statement may be made orally, in a
document or in any other way (paragraph 47(8)(a)); and
• did so knowing that the statement was false or misleading
(subparagraph 47(8)(b)(i)); or
• did so knowing that the statement omitted any matter or thing without which the
statement was misleading (subparagraph 47(8)(b)(ii)).
477. Under subsections 47(9) and (10), the information would need to either:
• be false or misleading in a material particular; or
• have omitted a matter or thing without which the information is misleading in a
material particular.
478. This would mean that minor errors would not be subject to civil penalty proceedings.
479. The civil penalty for contravention of this subsection would be 60 penalty units.
78
480. A note would explain to the reader that a defendant bears an evidential burden in relation to
the exception to a contravention, namely that the statement is not false or misleading in a
material particular and direct the reader to section 96 of the Regulatory Powers Act.
481. The civil penalties that would be imposed by this section have been set to encourage the
provision of accurate information that supports the administration of the levy system. These
penalties would also provide proportionate and appropriate action for a person's
wrongdoing.
Division 3--Reconsideration and review of decisions
Section 48 Internal reconsideration of decisions
482. Section 48 provides a mechanism for internal review and reconsideration of a decision by
the Secretary.
483. Subsection 48(1) would allow a person affected by a reviewable decision (the aggrieved
person) to request the Secretary to reconsider the decision. The kinds of decisions that the
aggrieved person may request the Secretary to reconsider would be:
• a decision of the Secretary to refuse to remit an amount that a person is liable to pay
by way of penalty under section 9 or 11 (paragraph 48(1)(a));
• a decision of the Secretary under subsection 31(4) to grant, or to refuse to grant, a
person or body an approval (paragraph 48(1)(b));
• a decision of the Secretary under subsection 44(3) to grant, or to refuse to grant, a
person or body an approval (paragraph 48(1)(c));
• a decision of the Secretary to specify conditions in an approval granted under
subsection 44(3) (paragraph 48(1)(d));
• a decision of the Secretary under subsection 53(4) (paragraph 48(1)(e);
• a decision prescribed by the rules for the purposes of the paragraph
(paragraph 48(1)(f)).
484. Subsection 48(2) would provide that subsection 48(1) would not apply to a reviewable
decision that is made by the Secretary personally. In this case, an application may be made
to the Administrative Appeals Tribunal (see section 49).
79
Form and timing of request
485. Subsection 48(3) would set out the timeframe within which a request for review must be
made. An aggrieved person seeking reconsideration of a reviewable decision under
paragraph 48(1)(a), (b), (c), (d) or (e) would need to make their request within 28 days after
the day on which that person is notified of the reviewable decision.
486. If the reviewable decision is a decision prescribed under the rules for the purposes of
paragraph 48(1)(f) then the request in writing must be made by the end of the period
prescribed by the rules. The Secretary may permit a longer period for the request to be
made, and the request must be made within that longer period. Requests would need to be
made in writing.
Reasons for request
487. Subsection 48(4) would stipulate that the aggrieved person must set out in the request the
reasons for requesting reconsideration by the Secretary.
Review of decision
488. Subsection 48(5) would set out the steps that must be taken by the Secretary on receiving a
request for reconsideration:
• reconsidering the reviewable decision personally (paragraph 48(5)(a)); or
• having the reviewable decision reconsidered by an independent internal reviewer
who is both senior to the original decision maker and uninvolved in making the
original decision (paragraph 48(5)(b)).
489. Subsection 48(6) would provide that where a person makes a valid request for
reconsideration of a decision the Secretary, or internal reviewer must reconsider the
decision and do one of the following:
• affirm the decision (paragraph 48(6)(a));
• vary the decision (paragraph 48(6)(a));
• set aside the reviewable decision and make a new decision (paragraph 48(6)(b)).
490. Subsection 49(7) would set out the timeframe, being a period of 45 days, or a longer period
if agreed by the aggrieved person and the Secretary or internal reviewer, for the
reconsideration of the reviewable decision.
Notice of decision on reconsideration
491. Subsection 48(8) would require the Secretary or internal reviewer to give the aggrieved
person written notice of the decision on reconsideration, and the reasons for that decision.
80
492. A note would explain to the reader that section 27A of the Administrative Appeals Tribunal
Act 1975 requires the person affected by the decision to be notified that a review by the
Administrative Appeals Tribunal is available to that person.
When decision on reconsideration takes effect
493. Subsection 48(9) would set out that the Secretary's or internal reviewer's decision on
reconsideration comes into effect on the day specified in the notice of the decision or if a
day is not specified, on the day on which that decision is made.
Secretary or internal reviewer may be taken to have affirmed decision
494. Subsection 48(10) would provide that if the Secretary or internal reviewer has not notified
the aggrieved person of the decision on reconsideration before the end of the period
applicable under subsection 48(7), then decision is taken to have been affirmed.
Section 49 Administrative Appeals Tribunal review of decisions
495. Section 49 would set out which decisions a person may apply to have reviewed by the
Administrative Appeals Tribunal.
Division 4--Self-incrimination and court orders
Section 50 Self-incrimination etc.
496. Subsection 50(1) would provide that an individual is not excused from giving a return or
notice under the rules, or giving information or producing a document under section 26, on
the ground that giving the return or notice, or giving the information or producing the
document, might tend to incriminate the individual in relation to an offence. Without
returns, notices under the rules or other information, the levy system could not remain
operational.
497. Subsection 50(2) would provide that the following are not admissible in evidence against
the individual in criminal proceedings:
• the return, notice or information given, or document produced (paragraph 50(2)(a));
and
• the giving of the return, notice or information, or the production of the document
(paragraph 50(2)(b)); and
• any information, document or thing obtained as a direct or indirect consequence of
the giving of the return, notice or information, or the production of the document
(paragraph 50(2)(c)).
498. There would be limited exceptions, namely for:
• proceedings for an offence against section 17 or 26 (paragraph 50(2)(d)); or
81
• proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that
relates to the Act or the rules (paragraph 50(2)(e)).
499. Subsection 50(3) would provide that if, at general law, an individual would otherwise be
able to claim the privilege against self-exposure to a penalty in relation to giving a return or
notice under the rules, or giving information or producing a document under section 26, the
individual is not excused from giving the return or notice under the rules, or giving the
information or producing the document under that provision on that ground. In this
provision, the reference to privilege against self-exposure to a penalty means a penalty other
than a penalty for an offence.
500. Notes to subsections 50(1) and (3) would explain that a body corporate is not entitled to
claim the privilege against self-incrimination and self-exposure to a penalty, respectively.
This is to reflect the common law principle that the privileges against self-incrimination and
self-exposure to a penalty do not apply to body corporates, rather they apply to individuals.
Section 51 Court orders
501. This section would provide that if a person is convicted by a court of an offence against
section 17 or 26, the court may order the person to give the return, notice or information
concerned, or produce the document concerned, in accordance with the order.
Division 5--Other provisions
Section 52 Appointment of compliance officers
502. This section would allow the Secretary to appoint an APS employee in the department, or
each APS employee in the department included in a specified class of APS employees in
the department, to be a compliance officer for the purposes of the Act. Any appointment
made under this section must be in writing.
503. A note to the section would explain to the reader that compliance officers have powers and
functions under the Regulatory Powers Act in relation to the enforcement of the Act under
Part 4.
504. Compliance officer would be defined in section 4.
Section 53 Secretary may arrange for use of computer programs to make decisions
505. Subsection 53(1) would allow the Secretary to arrange for the use of computer programs for
specified purposes for which the Secretary may, under the Act or the rules, make a decision.
The decision would need to be of a kind specified in the rules for the purposes of this
subsection. The use of such computer programs would need to be under the Secretary's
control. This decision is not delegable (section 54).
506. Subsection 53(1) would ensure appropriate parliamentary oversight of the use of a computer
program to make decisions. The provision would do this by requiring that the types of
decisions for which such an arrangement may be made must be specified in the rules. Rules
would be legislative instruments, which would be subject to parliamentary oversight
82
through the disallowance process outlined in the Legislation Act. As such, the Parliament
would have oversight of any future rules that identify decisions that may be made using
computer programs.
507. The inclusion of this provision provides flexibility to automate the making of suitable
decisions as technology advances in the future. Decisions made by computers, where
appropriate, can provide greater speed and consistency, provide cost-effectiveness and
reduce administrative burden. Given the cost-recovered nature of administration of the
agricultural levy system, using computer programs for appropriate decisions could result in
greater availability of levy funds for disbursement.
508. It is intended that any arrangement made by the Secretary for the use of computer programs
would be documented to provide clarity and accountability.
509. Subsection 53(2) would be a safeguarding provision to provide that the Secretary must take
all reasonable steps to ensure that each decision made by the operation of a computer
program under an arrangement made under subsection 53(1) is a decision that the Secretary
could validly make under the Act or the rules.
Decision made by computer taken to be Secretary's decision
510. Subsection 53(3) would provide that for the purposes of the Act a decision made by the
operation of a computer program under an arrangement made under subsection 53(1) is
taken to be a decision made by the Secretary.
Secretary may substitute a decision
511. Subsection 53(4) would allow the Secretary to make a decision in substitution for a decision
the Secretary is taken to have made under subsection 53(3) if the Secretary is satisfied that
the decision made by the operation of the computer program is not the correct or preferable
decision. This provision would provide a safeguard. For example, this provision could
operate if:
• incorrect or incomplete information was entered into a computer program which
resulted in an incorrect decision; or
• due to a technical malfunction of the computer program.
Arrangement not a legislative instrument
512. Subsection 53(5) would provide that a written arrangement under subsection 53(1) is not a
legislative instrument within the meaning of section 8 of the Legislation Act.
83
Section 54 Delegation by Secretary
SES employees or acting SES employees
513. Subsection 54(1) would provide that the Secretary would have a discretionary power to
delegate functions or powers under the Act or the rules to an SES employee, or acting SES
employee in the department. This would apply to all or any of the Secretary's functions or
powers except for those under subsection 53(1) or (2) or section 59. Any delegation made
under this subsection would need to be in writing.
Executive Level 2 employees
514. Subsection 54(2) would provide that the Secretary would have a discretionary power to
delegate functions or powers under the Act or the rules to an APS employee in the
department who holds, or is acting in, an Executive Level 2 position. This would apply to
all or any of the Secretary's functions or powers except for those under section 52, 53, 55 or
59. Any delegation made under this subsection must be in writing.
Other APS employees
515. Subsection 54(3) would provide that the Secretary would have a discretionary power to
delegate functions or powers under the Act or the rules to an APS employee in the
department. This provision applies to all APS employees except for those mentioned in
subsection 54(1) or (2). This would apply to all or any of the Secretary's functions or
powers except for those under section 48, 52, 53, 55, or 59. Any delegation made under this
subsection must be in writing.
516. Including powers of delegation is intended to ensure that decision making powers are
carried out efficiently and effectively in an operational environment where the Secretary
may not have the capacity to undertake all the functions and powers conferred upon them
by the Act and the rules.
517. In an operational context, many of the powers that are conferred on the Secretary may need
to be exercised by Executive Level 2 employees or employees at a lower classification level
as a matter of administrative necessity. This arises from the volume and timeliness of
decision making and availability of SES employees who have broad responsibilities.
518. It is intended that the delegates would be officials of the department who have knowledge
and expertise in the agricultural levy system's functions or responsibility and direct
oversight of the system. This would improve the efficiency of the administration and
management of the system. Delegating these powers to appropriate levels depending on the
nature of the decision would improve the efficiency of the administration and management
of the levy system, while ensuring that these powers are exercised with appropriate
accountability.
84
Directions to delegate
519. Subsection 54(4) would provide that a delegate when performing a delegated function, or
exercising a delegated power, must comply with any directions of the Secretary.
Section 55 Electronic system for giving returns or information
520. This section would allow the Secretary to establish, administer and maintain an electronic
system for the purpose of the giving of returns or information electronically under the rules.
The section would also set out the scope of information that the electronic system may
require to be included in returns.
Section 56 Treatment of partnerships
521. This section would provide for the application of the Act and the rules to a partnership as if
it were a person to ensure that this kind of legal entity is captured within the agricultural
levies system. The section sets out that the Act and rules apply to a partnership as if it were
a person but with the changes set out in the section.
Section 57 Treatment of trusts
522. This section would provide for the application of the Act and the rules to a trust as if it were
a person to ensure that this kind of legal entity is captured within the agricultural levies
system. The section sets out that the Act and rules apply to a trust as if it were a person but
with the changes set out in the section.
Section 58 Treatment of unincorporated bodies or associations
523. This section would provide for the application of the Act and the rules to an unincorporated
body or association as if it were a person to ensure that this kind of legal entity is captured
within the agricultural levies system. The section sets out that the Act and rules apply to an
unincorporated body or association as if it were a person but with the changes set out in the
section.
Section 59 Rules
Rules for better securing the payment of levy or charge
524. This section would provide that the Secretary may, by legislative instrument, make rules
prescribing matters:
• required or permitted by the Act to be prescribed by the rules (paragraph 59(1)(a));
or
• necessary or convenient to be prescribed for carrying out or giving effect to the Act
(paragraph 59(1)(b)).
85
525. Subsections 59(2) and (3) provide the matters that the rules may make provision for,
including in relation to requiring persons to give returns and to make and keep records, as
well as provide for the form of returns.
526. It is appropriate that the Secretary is given the power to set the requirements for giving
returns and making and keeping records. The policy intention is that the rules would be
tailored to suit each collection product or service. The collection settings in rules would be
reflective of industry design of the collection of each levy and charge. Allowing rules to
provide for these matters allows for adequate flexibility of arrangements to be changed to
accommodate changing circumstances including prevailing industry conditions and
emerging risks.
527. Rules made by the Secretary would be legislative instruments and as such would be subject
to the requirements of the Legislation Act, including parliamentary scrutiny and oversight,
disallowance and sunsetting.
Instruments
528. Subsection 59(4) would provide that the rules may confer instrument making powers on the
Minister or the Secretary. This power could be exercised for procedural matters, for
example, enabling approved forms under the rules. This provision would also allow for
future collection rules to be made as Australia's agricultural, fisheries and forestry sectors
grow and change.
Incorporation of other instruments
529. Subsection 59(5) would provide that despite subsection 14(2) of the Legislation Act, the
rules may 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.
530. Subsection 14(2) of the Legislation Act provides that, unless the contrary intention appears,
a legislative 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.
531. Subsection 59(5) would therefore provide a contrary intention to subsection 14(2) of the
Legislation Act. That is, the incorporation of certain documents by reference would not be
limited to the instrument or other writing as at the date of incorporation.
532. 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 would, in general, be
technical reference materials or production standards that are updated as required.
533. It is intended that where the rules would incorporate such documents, they would either be
freely and publicly available, or they would be documents required in the ordinary course of
doing business in the particular industry.
86
534. In order to comply with paragraph 15J(2)(c) of the Legislation Act, the explanatory
statements for the rules would contain a description of the relevant incorporated material
and indicate how it may be obtained.
Decisions of administrative character
535. Subsection 59(6) would provide that the rules may confer on the Minister or the Secretary a
power to make a decision of an administrative character.
No limit on subsection (1)
536. Subsection 59(7) would provide that subsections 59(2) to (6) do not limit subsection 59(1)
which allows the Secretary to make rules by legislative instrument.
Limitation
537. Subsection 59(8) would set out the limitations on what the rules may not deal with. This
subsection would provide that the rules may not do the following:
• create an offence or civil penalty (paragraph (59(8)(a));
• provide powers of arrest or detention, or entry, search or seizure
(paragraph (59(8)(b));
• impose a tax (paragraph (59(8)(c));
• set an amount to be appropriated from the Consolidated Revenue Fund under an
appropriation in the Act (paragraph (59(8)(d));
• directly amend the text of the Act (paragraph (59(8)(e)).
538. To ensure an appropriate level of Parliamentary oversight these significant matters must be
either set out in Acts or be authorised by an Act to be in a regulation.
87
Attachment A
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Primary Industries Levies and Charges Collection Bill 2023
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 Primary Industries Levies and Charges Collection Bill 2023 (Collection Bill) forms part of a
package to modernise the agricultural levies legislative framework. The Collection Bill would
replace the Primary Industries Levies and Charges Collection Act 1991 and set up the
framework for the collection of levies and charges under the agricultural levy system. The
Collection Bill would establish a streamlined and modernised collection framework that is easier
for participants to understand and comply with. The Collection Bill would also provide access to
more modern and flexible compliance and enforcement tools. This would ensure agricultural
levies and charges are collected effectively and compliance costs are kept as low as possible.
The Bill, in combination with the following Bills, would provide the overarching legislative
framework for the national agricultural levy system:
• Primary Industries (Excise) Levies Bill 2023 (Excise Bill)
• Primary Industries (Customs) Charges Bill 2023 (Customs Bill)
• Primary Industries (Services) Levies Bill 2023 (Services Bill), and
• Primary Industries Levies and Charges Disbursement Bill 2023.
The agricultural levy system is a long-standing partnership between industry and the Australian
Government to facilitate industry investment in strategic activities. The system has been in place
since 1989. Excise levies and customs charges are collected from farmers, producers, processors
and exporters. The Department of Agriculture, Fisheries and Forestry publishes levy guidelines
on its website to support agricultural, fisheries and forestry industries through the process of
developing a proposal to establish or amend an agricultural levy or charge. 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. 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. These levy recipient bodies are colloquially
known as research and development corporations (RDCs). A target of investment in R&D
1
equivalent to 1% of an industry's gross value of production (GVP) was identified as the desired
level of investment when the legislative framework first was established in 1989. This target is
still supported by the GVP limit on matching funding today.
Over time, the agricultural levies legislation has become complex, duplicative, and inconsistent.
There are more than 50 pieces of legislation governing over 110 levies and charges across over
75 commodities and 18 levy recipient bodies. There are also some redundant and out of date
provisions.
A 2018 review of the agricultural levies legislation found the legislative framework serves the
objectives of the agricultural levy system and is necessary for a successful industry-government
arrangement. Despite this, the review found the current legislation is ineffective in meeting
industries' needs now and in the future.
The package of Bills would modernise the agricultural levies legislative framework to provide
contemporary, flexible and efficient legislation that would better support industries' needs in the
future.
The Collection Bill would enable all levies and charges enabled by the Excise, Customs and
Services Bills to be collected and would not significantly change how individual levies and
charges are collected. The Collection Bill would:
• replace the Primary Industries Levies and Charges Collection Act 1991 with a framework
that will be easier for participants to understand and comply with.
• clarify the roles of participants in the system, using clear and consistent terminology such
as 'levy payer', 'charge payer' and 'collection agent'.
• provide for collection rules that would set out the specific obligations of levy payers,
charge payers and collection agents in relation to each commodity.
• trigger monitoring, investigation, and enforcement powers of the Regulatory Powers
(Standard Provisions) Act 2014 (Regulatory Powers Act). This would bring the levy
system in line with other Commonwealth regulatory schemes.
• introduce infringement notices and civil penalties. These measures would allow for
responses that are proportional to the severity of the conduct. This would support a
flexible compliance approach that reserved criminal penalties for only the most serious
offences.
• provide for the appropriate use and disclosure of information, while ensuring effective
safeguards for sensitive information.
Human rights implications
The Bill engages, or has the potential to engage, the following rights:
2
• the right to an adequate standard of living - Article 11(1) of the International Covenant
on Economic, Social and Cultural Rights (ICESCR)
• the right to health - Article 12(1) of the ICESCR
• criminal process rights - Article 14 of the International Covenant on Civil and Political
Rights (ICCPR)
• the right to the presumption of innocence - Article 14(2) of the ICCPR
• the right to be free from self-incrimination - Article 14(3) of the ICCPR
• the right not to be tried or punished again for an offence for which a person has already
been finally convicted or acquitted - Article 14(7) of the ICCPR
• the right to protection from arbitrary interference with privacy - Article 17 of the ICCPR
• the right to freedom of expression - Article 19(2) of the ICCPR.
Right to an adequate standard of living
Right to an adequate standard of living
The Bill engages the right to an adequate standard of living under Article 11(1) of the ICESCR.
This includes the right to adequate food, water, clothing, and housing, and to the continuous
improvement of living conditions. States Parties have an obligation to ensure the availability and
accessibility of the resources necessary for the progressive realisation of this right. Article 4 of
ICESCR provides that these rights may be subject to permissible limitations only where those
limitations are provided by law and are for the purpose of promoting the general welfare in a
democratic society.
The Bill promotes this right by providing for the collection of levies and charges to be used to
fund R&D, marketing and promotion, residue testing and biosecurity activities relating to
produce of primary industries. The agricultural levy system supports investment in strategic
activities for the benefit of agricultural, fisheries and forestry industries. These investments lead
to broad public benefits for Australians and the international community reliant on Australian
production. By strengthening the productivity of the Australian agricultural, fisheries and
forestry sector, as well as making production more resilient to threats, the activities funded by
the levy system positively impact the availability and accessibility of the resources necessary for
the realisation of this right. For example, the levy system benefits the availability and
accessibility of food and other primary produce such as fibre which may be used for clothing and
wood which may be used for housing.
Right to food
The Bill also promotes the right to adequate food as provided by Article 11. The United Nations
Committee on Economic, Social and Cultural Rights (UNCESCR) has stated (General Comment
No 12 (May 1999)), that the right to adequate food should 'not be interpreted in a narrow or
restrictive sense which equates it with a minimum package of calories, proteins and other
3
specific nutrients', but implies it should be free from adverse substances and accessible, both
economically and physically.
As noted in General Comment No 12, at international law, the right to food is also directed to
ensuring that food is free from adverse substances. The right to food is directed to ensuring that
food management regimes set requirements for both food safety and for protective measures by
both public and private means to prevent contamination of foodstuffs. For example, these
measures could be directed at preventing contamination through adulteration, poor
environmental hygiene or inappropriate handling at different stages throughout the food chain.
These measures could also relate to identifying, avoiding or destroying naturally occurring
toxins.
The Bill promotes the right to adequate food by enabling the investment of funds into activities,
such as biosecurity activities, residue testing and R&D, which support the secure production of
safe food. The right to food is promoted by the Bill to the extent that it facilitates the collection
of levies and charges that are specifically imposed to fund biosecurity activities to manage the
risk of pests and diseases entering, establishing, or spreading in Australia. The right to food is
also promoted by the Bill to the extent it facilitates levies and charges that invest in monitoring,
testing and reporting of levels of contaminants in agricultural products or the environment to
ensure the production of clean food. The right to food is also promoted by the Bill to the extent
that it enables the collection of levies and charges that fund R&D activities that will have
cumulative benefits for food security.
Summary
The Bill is compatible with the right to an adequate standard of living, including food, clothing,
water and housing, under Article 11(1) of the ICESCR because it positively engages and
promotes that right.
Right to health
Article 12 of the ICESCR promotes the right of all individuals to enjoy the highest attainable
standards of physical and mental health. This includes the application of measures for the
prevention, treatment and control of epidemic, endemic, occupational, and other diseases
(Article 12(2) of the ICESCR).
In General Comment No 14 (August 2000), the UNCESCR stated that health is a 'fundamental
human right indispensable for the exercise of other human rights', and that the right to health is
not to be understood as the right to be healthy, but rather as a right to a system of health
protection that provides equal opportunity for people to enjoy the highest attainable level of
health.
The Bill engages and promotes the right to health by providing for the collection of levies and
charges that fund investment in activities that prevent or reduce harm to human health. Activities
funded by the levy system support access to food which is nutritionally adequate and safe for the
Australian and international community. Activities include biosecurity activities, residue testing
as well as wide-ranging R&D activities into agricultural production that can increase food
production, food security and food safety. For example, biosecurity activities that support the
prevention and control of animal diseases and plant pests contribute to adequate food supply.
4
Monitoring and testing of contaminant levels in agricultural products ensures that food produced
in Australia is safe (for example, that it does not contain unsafe levels of chemical residues or
heavy metals).
Summary
The Bill is compatible with the right to health under Article 12 of the ICESCR because it
positively engages and promotes that right.
Criminal process rights
The rights to due judicial process and procedural fairness are established under Article 14 of the
ICCPR. Australia interprets the Article 14 right to a fair trial or fair hearing to apply in both
criminal and civil proceedings, before both courts and tribunals. The protections afforded by
Article 14 include fair trial rights, minimum guarantees in the determination of a criminal charge,
and other criminal process rights contained.
Monitoring and investigation powers
Clauses 20 and 21 of the Bill will apply the standard provisions for monitoring and investigation
powers in Parts 2 (monitoring) and 3 (investigation) of the Regulatory Powers Act in relation to
the offence and civil penalty provisions of the Bill. The application of these standard provisions,
as well as the compliance and enforcement powers in Part 4 of the Bill, will engage fair trial
rights, minimum guarantees in the determination of a criminal charge, and other criminal process
rights contained in Article 14 of the ICCPR.
Parts 2 and 3 of the Regulatory Powers Act provide questioning powers to authorised persons.
Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by a monitoring
warrant, the authorised person may require any person on the premises to answer questions or
produce documents relating to information or provisions subject to monitoring. If the person fails
to do so, this is an offence under subsection 24(5) of the Regulatory Powers Act. The penalty for
this offence is 30 penalty units. Similarly, under section 54(3) of the Regulatory Powers Act, an
authorised person who enters premises under an investigation warrant may require persons on
the premises to answer questions or produce documents relating to evidential material of the kind
specified in the warrant. If the person fails to do so, this is an offence under subsection 54(5) of
the Regulatory Powers Act. The penalty for this offence is 30 penalty units.
Subsections 24(5) and 54(3) of the Regulatory Powers Act do not limit the person's access to a
fair trial or limit the other criminal process rights in any way. Sections 17 and 47 of the
Regulatory Powers Act make it clear that the privileges against self-incrimination and legal
professional privilege have not been abrogated by the monitoring and investigation powers
provisions, including the offence provisions. These protections guarantee the criminal process
rights protected in paragraphs 14(3)(d) and (g) of the ICCPR. The usual guarantees and criminal
process rights will apply to these offences and are not abrogated by the application of Parts 2
and 3 of the Regulatory Powers Act to the Bill.
Fault-based offences
Part 5 of the Bill contains a number of fault-based offences relating to information management:
• subclause 42(2)
5
• subclause 43(2)
• subclause 45(1).
Clause 42(2) of the Bill makes it an offence for a person who receives information under
clause 32 to use that information for a purpose other than the purpose covered by clause 42(1).
The offence covers all information under received under clause 32, including commercially
sensitive and personal information disclosed or provided electronically to declared or statutory
recipient bodies.
Clause 43(2) makes if an offence to disclose the same information.
Clause 45(1) of the Bill makes it an offence for a person who is, or has been, an entrusted person
to use or disclose information and protected information acquired or generated during the course
of administration of Part 5 of the Bill.
The offence in clause 45(1) covers a narrowly defined category of protected information. The
classes of information that are covered as protected information are limited to categories of
information where harm would result from the unrestricted use or disclosure of the information,
namely, 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.
The offences are reasonable and proportionate having regard to the inherent public interest in
ensuring that this information is protected.
These offences apply to distinct categories of entities: entrusted persons and recipient bodies
who received information under clause 32. By virtue of their roles and responsibilities, these
entities can be reasonably expected to be aware of their obligations under the Act relating to the
use and disclosure of protected information.
The penalty for the fault-based offences in subclause 45(1) carries the possibility of
imprisonment consistent with the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers published by the Attorney-General's Department (Guide to
Framing Commonwealth Offences). A court will have discretion to impose a lesser penalty for
offending which falls on the lower end of objective seriousness. A term of imprisonment is
intended to be imposed by a court for offending which falls on the higher end of objective
seriousness. In accordance with section 17A of the Crimes Act 1914, a court will still need to
consider all other available sentences and be satisfied that no other sentence is appropriate in all
the circumstances of the case. Where a court passes a sentence of imprisonment for offending,
the court would be required to state the reasons for its decision and that no other sentence is
appropriate.
Summary
The offence provisions in subclauses 42(2), 43(2) 45(1) of the Bill are a proportionate and
measured response to protecting the integrity and security of protected information, the
unauthorised disclosure of which could, amongst other adverse consequences, be detrimental or
used as a trade barrier to the export of agricultural products to major overseas markets.
6
Accordingly, the fault-based offences in the Bill would be compatible with the criminal process
rights contained in Article 14 of the ICCPR.
Strict liability offences
Clauses 17 and 18 of the Bill contain strict liability offences for failure to give returns or notices
under the rules or to make and keep records. Subclause 26(4) contains an offence of strict
liability for failure to comply with a notice given by the Secretary to produce information or
documents. The offences carry a penalty of 60 penalty units. These requirements are essential to
the operation of the levy system so it is appropriate that failure to meet or comply with the
requirements are strict liability offences.
The application of strict liability to an element of an offence may engage and limit the right to be
presumed innocent as it allows for the imposition of criminal liability without the need for the
prosecution to prove fault. Strict liability offences will not necessarily be inconsistent with the
presumption of innocence where they are reasonable, necessary and proportionate in pursuit of a
legitimate objective. The strict liability offences in the Bill are proportionately targeted to the
legitimate policy objective of deterring unauthorised activities that would compromise the
integrity and sustainability of the levy system.
The offence provisions in clauses 17 and 18 and subclause 26(4) are a reasonable and
proportionate response to ensure compliance with essential requirements of the system, namely,
the provision of information used by the department to administer and effectively operate the
levy system. The information sought under these provisions is essential as it relates to the
amount of levy or charge paid either by levy/charge payers or collection agents on a commodity-
by-commodity basis or, in the case of subclause 26(4), information required by the Secretary to
exercise their powers and functions in administering the Act. The civil penalties imposed by the
Bill are properly characterised as civil rather than criminal in nature.
Summary
The strict liability offences in the Bill are reasonable and proportionate and therefore compatible
with, and do not impermissibly limit the criminal process rights contained in Article 14(2) of the
ICCPR.
Civil penalties
In Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014), the
Parliamentary Joint Committee on Human Rights (PJCHR), states that civil penalty provisions
may engage criminal process rights under Articles 14 of the ICCPR, regardless of the distinction
between criminal and civil penalties in domestic law. As such, prescribing conduct that is subject
to a civil penalty, and applying the civil penalty provisions of the Regulatory Powers Act, could
engage criminal process rights if the imposition of civil penalties is classified as 'criminal' under
international human rights law.
The UN Human Rights Committee has stated that criminal charges primarily encompass acts that
are declared to be punishable under domestic criminal law, but may also extend to acts that are
criminal in nature with sanctions that, regardless of their characterisation in domestic law, must
be regarded as penal. Relevant factors in considering whether charges are criminal include
whether proceedings are brought by a public authority, whether there is a punitive element to the
7
process and whether there are potentially serious consequences such as imprisonment (see UN
Human Rights Committee General Comment 32).
As such, when a provision imposes a civil penalty, an assessment is required as to whether it
amounts to a 'criminal' penalty for the purposes of the ICCPR. Determining whether penalties
could be considered to be criminal under international human rights law requires consideration
of the classification of the penalty provisions under Australian domestic law, the nature and
purpose of the penalties, and the severity of the penalties.
The Bill imposes civil penalty provisions which are expressly classified as civil penalties for the
purposes of Australian domestic law. The civil penalties are imposed for provisions which are
regulatory in nature, and where a pecuniary penalty is the appropriate remedy for non-
compliance and have been set by reference to the Guide to Framing Commonwealth Offences.
These penalties do not impose criminal liability. The following civil penalty provisions are
designed to deter and punish malfeasance and non-compliance with statutory obligations, and
form part of the suite of enforcement tools included within the new agricultural levies legislation:
• Subclause 17(2) and (4)
• Subclause 18(2)
• Subclause 26(5)
• Subclause 44(10)
• Subclause 45(2)
• Subclauses 47(1), (3), (5) and (8).
The purpose of these penalties is to encourage compliance with the obligations relating to giving
returns, keeping records and the use and disclosure of information. Non-compliance with these
obligations could compromise the effective operation of the levy system by impacting the
Commonwealth's ability to monitor payments and/or carry out investigations relating to non-
compliance. Non-compliance with disclosure of information requirements could compromise
privacy of levy/charge payers or collection agents, affect commercial operations and compromise
the Commonwealth's reputation if levy/charge payer or collection agent information is not
adequately safeguarded.
The application of the standard provisions in Part 4 of the Regulatory Powers Act by subclause
19 of the Bill means section 85 of the Regulatory Powers Act will apply to the proposed civil
penalty provisions in the Bill. Section 85 of the Regulatory Powers Act provides that a relevant
court may make a single civil penalty order against a person for multiple contraventions of a civil
penalty provision if proceedings for the contraventions are founded on the same facts, or if the
contraventions form, or are part of, a series of contraventions of the same or a similar character.
However, the penalty must not exceed the sum of the maximum penalties that could be ordered if
a separate penalty were ordered for each of the contraventions. There are no criminal
consequences associated with civil penalty orders for multiple contraventions; for example, they
do not carry the possibility of imprisonment.
8
Summary
The civil penalties imposed by the Bill are properly characterised as civil rather than criminal in
nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not
engaged by the proposed civil penalty provisions in the Bill.
Overlap of criminal and civil penalties
Article 14(7) of the ICCPR provides that no one shall be liable or be tried or punished again for
an offence for which they have already been finally convicted or acquitted in accordance with
the law and penal procedure of each country. Article 14(7) may be engaged by provisions that
allow for the imposition of both a criminal penalty and a civil penalty provision in relation to the
same contravening conduct where the civil penalty can be characterised as criminal.
Clause 45 of the Bill contains an offence and civil penalty provision which apply to the same
contravening conduct. By virtue of clause 19 of the Bill, sections 90 and 91 of the Regulatory
Powers Act will apply to civil penalty proceedings instigated pursuant to the Bill which concerns
the relationship between criminal and civil penalty proceedings.
Section 90 of the Regulatory Powers Act engages the process rights in Article 14 of the ICCPR
but does not limit those rights. This section clarifies that criminal proceedings may be
commenced against a person for conduct that is the same, or substantially the same, as conduct
that would constitute a contravention of a civil penalty provision, regardless of whether a civil
penalty order has been made against the person in relation to the contravention. This section
recognises the importance of criminal proceedings and criminal penalties in sanctioning
contraventions of a triggering Act (i.e. an Act that seeks to apply the standard provisions of the
Regulatory Powers Act) and ensures that criminal remedies are not precluded by earlier civil
action.
Section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but not
multiple criminal proceedings for the same conduct. For the reasons set out above, the civil
penalties in this Bill have been properly classified as civil and therefore this is compatible with
Article 14(7) of the ICCPR. Further, section 88 of the Regulatory Powers Act provides that a
court cannot make a civil penalty order against a person for a contravention of a civil penalty
provision if the person has been convicted of an offence constituted by conduct that is the same,
or substantially the same, as the conduct constituting the contravention. This provides a second
safeguard against potential double jeopardy and thereby ensures compatibility with Article 14 of
the ICCPR.
Section 91 of the Regulatory Powers Act provides that evidence of information given, or
evidence of the production of documents, by an individual is not admissible in criminal
proceedings against the individual if:
• the individual previously gave the information or produced the documents in proceedings
for a civil penalty order against the individual for an alleged contravention of a civil
penalty provision (whether or not the order was made)
• the conduct alleged to constitute the offence is the same, or substantially the same, as the
conduct alleged to constitute the contravention.
9
Summary
The Bill is compatible with the criminal process rights provided for by Article 14(7) of the
ICCPR.
Infringement notices
Article 14(1) of the ICCPR ensures that everyone shall be entitled to a fair and public hearing by
a competent, independent and impartial tribunal established by law. The right applies to both
criminal and civil proceedings before both courts and tribunals. This right is concerned with
procedural fairness and encompasses notions of equality in proceedings, the right to a public
hearing and the requirement that hearings are conducted by an independent and impartial body.
The Bill engages this right through the incorporation of an infringement notice scheme. An
infringement notice can be issued by an infringement officer for contraventions of a strict
liability offence provision or a civil penalty provision that is enforceable under Part 4 of the
Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for using
infringement notices in relation to provisions in the Bill and providing for attendant safeguards.
Clause 23 of the Bill applies the standard infringement notice provisions in Part 5 of the
Regulatory Powers Act to the following subclauses:
• 17(1), (2), (3) or (4)
• 18(1) or (2)
• 26(4) or (5)
• 47(1), (3), (5) or (8).
Infringement notices do not impose criminal liability. In accordance with section 104 of the
Regulatory Powers Act, persons issued with an infringement notice must be made aware that a
civil penalty order may be brought against them in court if they elect not to pay the penalty.
Accordingly, the person must always be advised of the consequences of not paying the penalty,
and of their right to have the matter dealt with by a court. As the person may elect to have the
matter heard by a court, rather than pay the penalty, the right to a fair hearing in civil matters
provided for by Article 14(1) of the ICCPR is engaged but not limited.
The right to a fair hearing is also engaged and promoted by clause 48 of the Bill. This clause
allows a person subject to a decision specified under subclause 48(1) to apply to the Secretary for
a review of the decision, which may then be reconsidered by the Secretary or 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 49 provides that a person may apply to the
Administrative Appeals Tribunal which may either affirm or vary the decision under review or
set it aside and make a substituted decision or remit it back to the original decision maker for
reconsideration in accordance with any direction or recommendation of the Tribunal. Further,
persons would continue to have rights to seek judicial review of a decision where vitiated by
jurisdictional error in the Federal Court of Australia under section 39B of the Judiciary Act 1903,
or the High Court of Australia under section 75(v) of the Constitution. As such, the Bill is
compatible with the right to a fair and public hearing.
10
Injunctions
Clause 24 of the Bill seeks to apply the injunctions provisions in Part 7 of the Regulatory Powers
Act to the provisions of the Bill. Subclause 24(2) allows the Secretary to apply to a relevant court
for an injunction, or interim injunction, to restrain a person from engaging in conduct or
requiring that person to do a thing. The injunctions provisions in Part 7 of the Regulatory Powers
Act will be applied to all provisions of the Bill. Applying the injunction provisions of the
Regulatory Powers Act engages the right to a fair and public hearing and the other criminal
process rights in Article 14 of the ICCPR.
Under Part 7 of the Regulatory Powers Act, an injunction can only be granted by a court.
Further, and consistently with Article 14(1), an independent, impartial court will preside over all
criminal and civil proceedings (final and interlocutory) brought under the Bill or another
Australian law. Such proceedings will be subject to established Australian court processes and
procedures that protect the right to a fair trial, including requirements relating to procedural
fairness and the admissibility of evidence and sentencing.
The right to be considered equal before a court or tribunal is also upheld, as all parties to
proceedings under the Bill will be given reasonable opportunity to present their case in
conditions that do not disadvantage them as against other parties.
Accordingly, the application of Part 7 of the Regulatory Powers Act to the Bill is compatible
with human rights as the right to a fair and public hearing by a competent, independent and
impartial tribunal is not limited.
Summary
The Bill engages Article 14 rights as it contains a range of penalties for non-compliance,
including civil and criminal penalties, and injunctions, imposed by a court. Part 4 of the Bill
Compliance and enforcement triggers the standard provisions of Parts 2, 3, 4, 5 and 6 of
the Regulatory Powers Act for the use of monitoring powers, investigation powers, civil penalty
provisions, infringement notices and enforceable undertakings. Accordingly, the Bill is
consistent with the fair trial rights, minimum guarantees in the determination of a criminal
charge, and other criminal process rights contained in Article 14 of the ICCPR.
Self-incrimination
Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-
incrimination in the determination of a criminal charge by providing that a person may not be
compelled to testify against themselves or confess guilt. The common law also recognises the
privilege against self-incrimination which applies unless expressly or impliedly overridden by
statute. The privilege against self-incrimination may be subject to permissible limits. Any
limitations must be for a legitimate objective and be reasonable, necessary and proportionate to
that objective.
Clause 50 of the Bill would expressly remove the privilege against self-incrimination in relation
to the requirement to provide returns or notices under the rules or to give information or produce
documents to the Secretary under clause 26. However, subclause 50(2) provides protection to the
individual by ensuring that self-incriminatory disclosures will not be able to be used against the
11
person who made the disclosure either directly in criminal proceedings (use immunity) or
indirectly to gather other evidence against the person (derivative use immunity).
Specifically, none of the following will be admissible in evidence against an individual in any
criminal or other proceedings (other than proceedings for an offence against clause 17 or 26 of
the Bill or proceedings for an offence against section 137.1 or 137.2 of the Criminal Code):
• the return, statement or information given or document produced
• the giving of the return, statement or information or the production of the document
• any information, document or thing obtained as a direct or indirect consequence of the
giving of the return, statement or information or the production of the document.
The ability to acquire the necessary information and data to underpin the agricultural levy system
is based on a relationship of trust with industry. Removing the privilege against self-
incrimination in these circumstances is necessary to support the operation of the Bill. Abrogating
the privilege against self-incrimination in these provisions ensures that the Secretary will have all
the relevant information in relation to a person's levy settings and that the information is correct.
The department will rely on the information provided to be complete and accurate in order to
effectively assess the operation of the levy system and determine compliance with the Act.
Upholding the privilege against self-incrimination in relation to individuals who are required to
provide information to the Secretary could have significant adverse consequences for the
veracity, and completeness of the levy/charge information provided by industry participants.
This would materially affect the accuracy of levy determinations and proper aggregation of
statistical data and, by extension, how funding is allocated for R&D and other activities funded
by the levy system. Therefore the limitation is reasonable, necessary and proportionate to
achieve a legitimate objective.
Summary
The Bill is compatible with the right to be free from self-incrimination under Article 14(3)(g) of
the ICCPR. The usual criminal process rights and minimum guarantees that apply in criminal
proceedings will apply to any criminal proceedings under the Bill. For the reason set out above,
the limitation of this right is permissible because it is reasonable, necessary, and proportionate to
the achievement of a legitimate objective and adequate safeguards apply to prevent the risk of
abuse or arbitrary exercise of discretion.
Presumption of innocence
Article 14(2) of the ICCPR protects the right of every individual charged with a criminal offence
to be presumed innocent until proved guilty according to law. The right to the presumption of
innocence is also a fundamental principle of the common law. The UN Human Rights
Committee has stated that the presumption of innocence 'imposes on the prosecution the burden
of proving the charge and guarantees that no guilt can be presumed until the charge has been
proved beyond reasonable doubt'.
Laws that shift the burden of proof to a defendant, commonly referred to as 'reverse burden
provisions', can be considered to constitute a limitation of the presumption of innocence. This is
12
because a defendant's failure to discharge a burden of proof or prove an absence of fault may
permit their conviction despite reasonable doubt as to their guilt. This includes where an
evidential or legal burden of proof is placed on a defendant.
Reverse burden offences will not necessarily be inconsistent with the presumption of innocence,
provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and
proportionate to achieving that objective. Whether a reverse burden provision impermissibly
limits the right to the presumption of innocence will depend on the circumstances of the case and
the particular justification for the reverse burden. PJCHR Guidance Note 2 indicates that reverse
burden offences will likely be compatible with the presumption of innocence where they are
shown by legislation proponents to be reasonable, necessary and proportionate in pursuit of a
legitimate objective.
Clause 45 of the Bill engages Article 14(2) because the defences in subclauses 45(4) and 45(5)
reverse the usual burden of proof by requiring the defendant to discharge the burden of proof for
one or more matters. Subclause 45(1) prohibits an entrusted person from using or disclosing
protected information. An exception to this is where the use or disclosure of the protected
information is required or authorised by the Bill or a law of the Commonwealth or a law of a
state or territory as prescribed by the rules (subclause 45(4)). A further exception is where a
person has disclosed the information in good faith (subclause 45(5)). A person who wants to rely
on the exceptions in subclause 45(4) or (5) bears the evidential burden of proving the exception.
Under subsection 13.3(3) of the Criminal Code Act 1995, a defendant who wants to rely on any
exception, provided by the law creating an offence, bears an evidential burden in relation to that
matter. The exception need not accompany the description of the offence.
The Guide to Framing Commonwealth Offences notes that placing the burden of proof on the
defendant should be limited to where the matter is peculiarly within the knowledge of the
defendant and where it is significantly more difficult and costly for the prosecution to disprove
than for the defendant to establish the matter. The Guide provides that a reverse burden provision
is more readily justified if:
• the matter in question is not central to the question of culpability for the offence
• the penalties are at the lower end of the scale
• the conduct proscribed by the offence poses a grave danger to public health or safety.
In this way, to the extent that the reverse burden that attaches to these offences or civil penalty
provisions limits the right to the presumption of innocence under Article 14(2), this limitation
only applies in relation to the exception that they are authorised to engage in the conduct or acted
in good faith each of which would be peculiarly in the knowledge of the defendant and neither is
central to the question of culpability for the relevant offence or civil penalty.
Summary
The Bill is compatible with the right of every individual charged with a criminal offence to be
presumed innocent until proved guilty according to law under Article 14(2) of the ICCPR as the
proposed penalties in clause 45 are proportionate to achieve the necessary deterrent effect, and
13
the maximum penalty that may be imposed will be determined by a court having regard to all the
facts and circumstances of the case.
In the event of a prosecution or civil proceedings, it would be significantly more difficult and
costly to disprove all possible circumstances than it would be for a defendant to establish the
existence of one potential circumstance. Notably, the offences only impose an evidential burden
on the defendant. That is, the prosecution must still disprove the matters beyond reasonable
doubt if the defendant discharges the evidential burden.
Right to protection from arbitrary interference with privacy
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy,
family, home or correspondence, and protects a person's honour and reputation from unlawful
attacks. The right to privacy includes respect for informational privacy and is engaged by any
provisions which permit the disclosure of personal information. It also includes: the right to
respect for confidential and private information, particularly the storing, use and sharing of such
information; and the right to control dissemination of information about one's private life.
For an interference with the right to privacy to be permissible, the interference must be
authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular
circumstances. The UN Human Rights Committee has interpreted the requirement of
'reasonableness' to imply that any interference with privacy must be proportional to the end
sought and be necessary in the circumstances of any given case. It has interpreted the term
'unlawful' to mean that no interference can take place except in cases envisaged by a law which
complies with the provisions, aims and objectives of the ICCPR. The UN Human Rights
Committee has also indicated that an interference will not be considered to be 'arbitrary' if it is
provided for by law and is in accordance with the provisions, aims and objectives of the ICCPR
and is reasonable in the particular circumstances.
Monitoring and investigation powers
Clauses 20 and 21 of the Bill will apply the standard provisions in Parts 2 and 3 of the
Regulatory Powers Act for the use of monitoring and investigation powers in relation to the
offence and civil penalty provisions of the Bill. Accordingly, the monitoring and investigation
framework for the Bill will be provided for by Parts 2 and 3 of the Regulatory Powers Act. To
the extent that the measures in clauses 20 to 21 of the Bill limit the rights protected under
Article 17 of the ICCPR, these limitations are not arbitrary, and are reasonable, necessary and
proportionate to the achievement of a legitimate objective.
These powers will ensure that authorised officers are able to effectively monitor compliance and
investigate suspected contraventions of a provision of the Bill or rules in a way that is consistent
with other Commonwealth regulatory agencies.
Clause 26 of the Bill would also give additional monitoring powers to the Secretary and
departmental officers to, by notice in writing, require a person to provide information relevant to
the operation of the Act or rules. This compliance tool would be an effective method for seeking
information from participants in the levy system to monitor compliance and may avoid further
investigation.
14
These powers are intended to help departmental officers access relevant levies information.
Access to this information is critical to the department's enforcement activities and ensuring
overall compliance with the levy system.
Provision of information
The Bill contains clauses that give the Secretary the power to require information or documents
(clause 26). The Bill also contains clauses that enable the Secretary to make rules requiring levy
payers, charge payers, collection agents or other purposes to give returns to written notices
(subclause 59(2)).
By requiring persons to provide information or documents, the Bill may incidentally require the
provision of personal information. The collection, use, storage and sharing of personal
information may therefore operate to limit the right to privacy.
These clauses are necessary in pursuance of the legitimate objective of administering the levy
system. Submitting returns and providing the written notices specified in subclause 59(2) support
the integrity of the levy system, by ensuring that the correct amounts have been collected. The
rules made under subclause 59(2) would be tailored to suit each collection product or service.
The collection settings in rules would be reflective of industry design of the collection of each
levy and charge.
Confidentiality of information
Part 5 of the Bill would regulate the use and disclosure of personal and sensitive information
obtained by the department under the Bill. Part 5 of the Bill engages the Article 17 right to
protection from unlawful or arbitrary interference with privacy as it provides authorisations for
entrusted persons (defined in clause 4) and for the Secretary to disclose relevant levy/charge
information, which may include personal information, only in specified circumstances.
Additionally, to ensure there is no arbitrary interference with an individual's privacy, the powers
and functions in the Bill would be required to be exercised in compliance with the Privacy Act
1988 (Privacy Act). That Act provides for protections on the collection, storage, use, disclosure
and publication of personal information.
Clauses 28 would authorise an entrusted person to use or disclose information for a range of
purposes relevant to levy system, including administering the collection of levies and charges,
administering the disbursement levy funds, monitoring compliance with the levy system and
using information for agricultural research and development of agricultural policy. Entrusted
persons who used levy/charge information for agricultural research, agricultural policy or
performing ABARES functions would not be able to disclose information that could identify a
levy payer, collection agent or another person. An entrusted person would be able to disclose
statistics that were not likely to enable the identification of a person.
Clause 29 would authorise an entrusted person to disclose information to an Australian Bureau of
Statistics staff member for the purposes of assisting the Bureau to perform its functions, and to a
staff member of a prescribed Commonwealth entity, if the disclosure or access is for the
15
purposes of assisting the entity to undertake agricultural research or develop agricultural policy
or both.
Clause 30 would authorise an entrusted person to disclose certain specified information for the
purposes of the administration of an Act that is administered by the Minister.
Clause 31 would authorise an entrusted person to disclose certain specified information to
particular persons and bodies involved in the levy system, for consultation with levy and charge
payers and so those bodies undertake their functions under a law of the Commonwealth and can
fulfil obligations to the Commonwealth. This clause relates to a limited subset of information,
specifically the name and contact details of people who have given returns under the rules.
Clause 32 would authorise an entrusted person to disclose certain specified information to
declared and statutory recipient bodies, for purposes relevant to the levy system including
consultation with levy and charge payers, maintenance of a levy payer register, conduct of a poll
of levy or charge payers, and determining whether a person is a shareholder of a declared
recipient body. These bodies would only be permitted to secondary disclose the information with
approval from the Secretary for specific purposes set out in the Bill.
Clauses 33 to 40 of the Bill would authorise the use and disclosure of information in specific,
narrow circumstances including for court proceedings, enforcement-related activity, to comply
with another Australian law, where the person has given consent, and to the person who
originally provided the information.
Clauses 42 to 44 of the Bill would set out when information can be used or disclosed for a
secondary permissible purpose.
The Bill provides that each provision in Division 3 that authorises the use or disclosure of
information provides an authorisation for the purposes of the Privacy Act 1988 and other laws.
This ensures additional protection of information and provides clarity around obligations of
entrusted persons when using or disclosing personal information.
These forms of use and disclosure are reasonable and proportionate as they are for proper legal
purposes and in furtherance of the clear policy objective by enabling the department to carry out
its functions in terms of levy administration and support and underpin compliance and law
enforcement activities.
The disclosure or use of protected information by an entrusted person that is not authorised by
the Bill is an offence or subject to a criminal offence or a civil penalty, unless such information
is already lawfully available to the public, or it is authorised to be disclosed, or required to be
disclosed by another Commonwealth law or a law of a State or Territoy prescribed by the rules.
The tiered offence categories seek to balance incursion on rights by recognising the gradations of
harm that may flow from the unauthorised disclosure of protected information and relevant
levy/charge information. It does this through an integrated framework of fault-based offences
and a civil penalty provision for the unauthorised use or disclosure of protected information. The
right to privacy is protected by an authorisation model to regulate and target the use and
disclosure of relevant information. The framework:
• integrates civil pecuniary penalties into the enforcement regime as appropriate
16
• introduces an authorisation model to circumscribe the disclosure of relevant information
and address constitutional issues otherwise associated with widely crafted non-disclosure
duties
• applies the concept of protected information to confine the ambit of the specific secrecy
offence.
Further, any collection, storage and disclosure of information will be undertaken in accordance
with the Australian Privacy Principles contained in the Privacy Act. Where a particular
disclosure includes personal information, Australian Privacy Principle 11.1 applies, which
requires that an Australian Privacy Principle entity must take reasonable steps to protect personal
information from misuse, interference or loss, and from unauthorised access, modification or
disclosure.
Summary
The Bill may engage the prohibition on arbitrary interference with privacy under Article 17 of
the ICCPR to the extent that personal information may be collected under the scheme. The
information collected and used is limited to that necessary for the proper administration of the
levy system. Further, the use or disclosure of protected information and levy/charge information
is governed by a legal framework that provides safeguards against unauthorised use or
disclosure.
To the extent that these measures could be seen as limiting the prohibition on arbitrary
interference with privacy, any limitation would be permissible as the measures are proportionate,
reasonable and necessary in the circumstances to achieve a legitimate objective for the benefit of
all participants.
Right to freedom of expression
Article 19(2) of the ICCPR protects the right to freedom of expression. This includes the
freedom to seek, receive and impart information and ideas of all kinds. Under Article 19(3), the
right may be subject to permissible limitations where these are authorised by law and not
arbitrary; for example, they are necessary for the respect of the rights or reputation of others.
Any such restrictions must be prescribed by law and be reasonable, necessary and proportionate
to achieving a legitimate objective.
Part 5 of the Bill engages this Article 19 right by limiting the circumstances in which levy/charge
information and protected information may be used and disclosed, as described above. The
classes of information that are covered as protected information do not unduly limit the right to
freedom of expression as they are limited to specified categories of information, as outlined
above. The right may be limited to the extent that the information management provisions
impose offences which attract a pecuniary penalty or imprisonment, or impose civil liability on a
person, in circumstances where the use or disclosure of protected information is unauthorised.
The right is also engaged and potentially limited by the authorisation framework which imposes
limitations and qualifications on the use and disclosure of levy/charge information.
Given that the unauthorised use or disclosure of protected information may have potentially
serious consequences, including harm to a person's reputation or prejudice to criminal
17
investigations and prosecutions, it is important to ensure that protected information is not used or
disclosed without appropriate authorisation.
The fault-based offence and civil penalty provision in relation to protected information would
only apply to the limited class of entrusted persons or other persons who hold an approval. By
virtue of their respective roles and responsibilities, these persons can be reasonably expected to
be aware of their obligations under the Bill relating to the use and disclosure of protected
information.
Summary
The Bill may engage the right to freedom of expression under Article 19 of the ICCPR. Any
limitation to the right resulting from the offences and civil penalty provisions and the imposition
of authorisations to delimit the scope of disclosure are reasonable and proportionate to achieve a
legitimate policy end. These policy ends include protecting personal information of levy and
charge payers, ensuring the necessary information can be gathered and directed to existing and
emerging R&D and other levy purposes, and to underpin and support enforcement or
compliance-related activities. This limitation on the right to freedom of expression in Article 19
of the ICCPR is necessary, appropriate and proportionate to achieving a legitimate policy
objective and balances respect for individual privacy.
Conclusion
The Bill is compatible with human rights because, to the extent that it may limit human rights,
those limitations are reasonable, necessary and proportionate.
Therefore, the 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.
(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
Senator the Hon. Murray Watt)
18