AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT (LEVY AND FEES) ACT 2005 NO. 42, 2005 - SCHEDULE 1

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AGRICULTURAL AND VETERINARY CHEMICALS LEGISLATION AMENDMENT (LEVY AND FEES) ACT 2005 NO. 42, 2005 - SCHEDULE 1

- Amendment of Acts

Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994

1
Subsection 3(1) (definition of prescribed date for payment )

Repeal the definition, substitute:

"prescribed date for payment", in relation to any levy that is payable, means:

(a) if levy is payable because of an assessment that has been made—the date stated in the notice of assessment to be the date by which the levy is to be paid; or
(b) otherwise:
(i) if levy is payable under subsection 8(1)—the next 31 July following the end of the relevant calendar year; or
(ii) if levy is payable under subsection 9(1)—1 September in the relevant calendar year; or
(iii) if levy is payable under subsection 9(1A)—31 July 2005; or
(iv) if levy is payable under section 10 or 12B—the next 31 December following the end of the relevant financial year.

Note: As the levy is paid in arrears, levy might be payable in respect of a chemical product whose registration has ceased.

2 Subsection 3(1) (definition of rate of levy )

Omit "or 12", substitute ", 12 or 12C".

3 Subsection 3(1)

Insert:

"relevant financial year" means the financial year in which the leviable disposals in respect of which the levy is payable took place.

4 Subsection 3(1)

Insert:

"understatement penalty" means understatement penalty payable under section 14A .

5 Paragraphs 6(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) for the purpose of paragraph (a) of the definition of "prescribed date for payment", by notice published in the Gazette , direct that, in relation to levy payable in a particular calendar year or financial year stated in the Gazette notice, a reference in a notice of assessment to a date that is specified in the Gazette notice is taken instead to be a reference to another date (whether earlier or later) that is specified in the Gazette notice;
(c) for the purpose of paragraph (b) of the definition of "prescribed date for payment", by notice published in the "Gazette", direct that, in relation to levy payable in a particular calendar year or financial year stated in the Gazette notice, a reference in that paragraph to a date that is specified in the Gazette notice is taken instead to be a reference to another date (whether earlier or later) that is specified in the Gazette notice;
(d) by notice published in the Gazette :
(i) specify amounts of levy to which the Gazette notice applies; and
(ii) direct that, for the purposes of this Act, an amount of such a levy that, apart from the direction, would be required to be paid by a particular date is taken to have been paid by that date if the levy is paid by instalments worked out in accordance with the Gazette notice on such dates as are stated in the Gazette notice.
6 At the end of section 6

Add:

(3): A notice made under paragraph (1)(a) is not a legislative instrument.
(4): A notice made under paragraph (1)(b), (c) or (d) is a legislative instrument.

7 Part 2 (heading)

Repeal the heading, substitute:

Part 2—Liability for levy and penalties

8 Before section 8

Insert:

Division 1—Liability for levy from 1 January 1994 to 30 June 2005

9 Subsection 8(1)

After "a later calendar year", insert "ending on or before 31 December 2003".

Note: The heading to section 8 is altered by omitting "1994 and later years" and substituting "any calendar year from 1994 to 2003".

10 Paragraph 9(1)(a)

After "a later calendar year", insert "ending on or before 31 December 2003".

Note 1: The heading to section 9 is altered by omitting "first 6 months of 1995 or of a later year" and substituting "the first 6 months of any calendar year from 1995 to 2004".
Note 2: The following heading to subsection 9(1) is inserted " Disposals during the first 6 months of any calendar year from 1995 to 2003 ".

11 After subsection 9(1)

Insert:

Disposals during the first 6 months of 2004

(1A): If a chemical product was registered in any jurisdiction during the whole or any part of the first 6 months of the calendar year beginning on 1 January 2004 (whether or not the product was also registered in that jurisdiction or any other jurisdiction during the whole or any part of the last 6 months of that year), then, subject to subsection (2), levy is payable in respect of leviable disposals of the product that took place anywhere in Australia at any time during those 6 months.

12 Subsections 9(2) and (4)

After "subsection (1)", insert "or (1A)".

Note 1: The following heading to subsection 9(2) is inserted " Total leviable value must be at least $50,000 ".
Note 2: The following heading to subsection 9(3) is inserted " Who is liable to pay the levy ".

13 After section 9

Insert:

10
Liability for levy in respect of disposals during the 2004-2005 financial year

(1): If a chemical product was registered in any jurisdiction during the whole or any part of the financial year beginning on 1 July 2004, then, subject to subsection (2), levy is payable in respect of leviable disposals of the product that took place anywhere in Australia at any time during that year.
(2): Levy is not payable under subsection (1) in respect of leviable disposals of a particular chemical product during the year if the total leviable value in respect of the product for that year is less than $100,000.
(3): Subject to subsection (4), the interested person in relation to the chemical product is liable to pay the levy.
(4): If the chemical product was registered as mentioned in subsection (1) in more than one jurisdiction and different persons are the interested persons in relation to the product in different jurisdictions, those persons are jointly and severally liable to pay the levy.

14 Subsection 12(1)

Omit "section 9", substitute "subsection 9(1)".

Note 1: The heading to section 11 is altered by omitting "1994 or a later year" and substituting "any calendar year from 1994 to 2003".
Note 2: The heading to section 12 is altered by omitting "1995 or of a later year" and substituting "any calendar year from 1995 to 2004".
Note 3: The following heading to subsection 12(1) is inserted " Disposals during the first 6 months of any calendar year from 1995 to 2003 ".

15 Subsection 12(1) (definition of rate of levy )

Omit "this section", substitute "this subsection".

16 Subsection 12(2)

Omit "section 9", substitute "subsection 9(1)".

17 At the end of section 12

Add:

Disposals during the first 6 months of 2004

(3): Subject to subsection (4), the amount of the levy that is payable under subsection 9(1A) in respect of leviable disposals of a particular chemical product during the first 6 months of the calendar year beginning on 1 January 2004 is the amount worked out using the formula:

(4): The total of the amounts of the levy that are payable under subsection 9(1A) in respect of leviable disposals of a particular chemical product during those 6 months is not to exceed $12,500.

18 After section 12

Insert:

12A Amount of levy imposed in respect of disposals during the 2004-2005 financial year

(1): Subject to subsection (2), the amount of the levy that is payable under section 10 in respect of leviable disposals of a particular chemical product during the financial year beginning on 1 July 2004 is the amount worked out using the formula:

(2): The total of the amounts of the levy that are payable under section 10 in respect of leviable disposals of a particular chemical product during that year is not to exceed $25,000.

Division 2—Liability for levy for financial years from 1 July 2005
12B Liability for levy in respect of disposals during the 2005-2006 and later financial years

(1): If a chemical product was registered in any jurisdiction during the whole or any part of the financial year beginning on 1 July 2005 or a later financial year, then levy is payable in respect of leviable disposals of the product that took place anywhere in Australia at any time during that year.
(2): Subject to subsection (3), the interested person in relation to the chemical product is liable to pay the levy.
(3): If the chemical product was registered as mentioned in subsection (1) in more than one jurisdiction and different persons are the interested persons in relation to the product in different jurisdictions, those persons are jointly and severally liable to pay the levy.

12C Amount of levy imposed in respect of disposals during the 2005-2006 and later financial years

(1): The amount of the levy that is payable under section 12B in respect of leviable disposals of a particular chemical product during a financial year is the amount worked out using the formula:

where:

"rate of levy "means the percentage prescribed by the regulations for the purposes of this section in respect of the financial year.

(2): The regulations may prescribe any of the following:

(a) a rate of levy in respect of Part 2A chemical products that is lower than the rate prescribed in respect of Part 2 chemical products;
(b) different rates of levy for different volumes of leviable disposals of chemical products that take place during a financial year;
(c) different rates of levy for different volumes of leviable disposals of Part 2A chemical products that take place during a financial year, that are lower than the rates prescribed for those volumes of leviable disposals of Part 2 chemical products.

(3): In this section:

Part 2A chemical products means chemical products having listed registration under Part 2A of the Agvet Code of a jurisdiction.

Part 2 chemical products means chemical products that are registered under Part 2 of the Agvet Code of a jurisdiction.

Division 3—Other rules relating to the levy
19 Subsection 14(1)

Repeal the subsection, substitute:

(1): This section applies if either or both of the following:

(a) any levy payable by a person under this Part in respect of leviable disposals of a particular chemical product during a period;
(b) any understatement penalty payable in respect of the product for the period;

is not wholly paid on or before the prescribed date for payment of the levy, or the date stated under subsection 16(8A), as the case requires.

(1A): The person immediately becomes liable to pay a late payment penalty of:

(a) if the total amount of levy and understatement penalty that is unpaid is not more than $10,000—$200; or
(b) if the total amount of levy and understatement penalty that is unpaid is more than $10,000—$400.
20 Subsection 14(2)

Repeal the subsection, substitute:

(2): The APVMA may remit the whole or a part of an amount of late payment penalty.

Note: If any late payment penalty payable in respect of a chemical product is not paid, the Agvet Codes provide that the APVMA may refuse to renew the registration of the product.

21 At the end of Part 2

Add:

14A Understatement penalty

(1): This section applies if:

(a) a person mentioned in paragraph 20(1)(a) or (2)(a) (about notices requiring information) gives to the APVMA under that section information relating to the importation, manufacture or disposal of a chemical product during a period; and
(b) the total leviable value (the understated value ) in respect of the product for the period worked out on the basis of that information is less than the actual total leviable value in respect of the product for the period.

(2): The person is liable to pay an understatement penalty in respect of the product for the period of the higher of the following amounts:

(a) $100;
(b) 25% of the difference between the actual total leviable value and the understated value.

(3): The APVMA may remit the whole or a part of an amount of understatement penalty.

Note: If any understatement penalty payable in respect of a chemical product is not paid, the Agvet Codes provide that the APVMA may refuse to renew the registration of the product.

22 Application of items 20 and 21

(1) The amendment made by item 20 applies to late payment penalties imposed after the commencement of the item.
(2) The amendment made by item 21 applies to notices given under section 20 after the commencement of the item.

23 Subsection 16(6)

Omit "paragraph 6(a)", substitute "paragraph 6(1)(a)".

Note: The following heading to subsection 16(1) is inserted " Assessment of levy ".

24 After subsection 16(8)

Insert:

Assessment to include details of understatement penalty

(8A): If any understatement penalty is also payable in respect of the product for the period concerned, the notice must state:

(a) the amount of understatement penalty payable; and
(b) the date by which the penalty is to be paid (which is to be the same as the date stated under subsection (7)).

Note 1: The following heading to subsection 16(9) is inserted " Reconsideration and review of assessments ".
Note 2: The following heading to subsection 16(12) is inserted " Notice of assessment is conclusive evidence of the due making of the assessment ".

25 Section 17

Repeal the section, substitute:

17 Fresh assessments

(1): Subject to subsection (2), if the APVMA is satisfied that an assessment was incorrect, the APVMA may make a fresh assessment under section 16 in substitution for the incorrect assessment, even though levy or understatement penalty may have been paid in respect of the incorrect assessment.
(2): A fresh assessment may:

(a) if the incorrect assessment was based on false or misleading information given to the APVMA or to an inspector—be made at any time; or
(b) otherwise—be made only within 4 years from the date on which levy became payable under the incorrect assessment.
26 Subsection 18(8)

Omit "paragraph 6(a)", substitute "paragraph 6(1)(a)".

27 Subsection 19(1)

After "late payment penalty", insert "or understatement penalty".

Note: The heading to section 19 is altered by omitting "and late payment penalty" and substituting ", late payment penalty and understatement penalty".

28 Subsection 19(1)

After "late payment penalty", insert "or understatement penalty".

Note 1: The heading to section 19 is altered by omitting "and late payment penalty" and substituting ", late payment penalty and understatement penalty".
Note 2: This item only amends section 19 of the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 if item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 repeals and replaces that section. (See table item 3 in subsection 2(1) of this Act for the commencement of this item.)

29 Subsection 19(2)

Omit "or late payment penalty", substitute ", late payment penalty or understatement penalty".

30 Subsection 19(2)

Omit "or late payment penalty", substitute ", late payment penalty or understatement penalty".

Note: This item only amends section 19 of the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 if item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 repeals and replaces that section. (See table item 5 in subsection 2(1) of this Act for the commencement of this item.)

31 Subsection 20(1)

Omit "section 8", substitute "Part 2 (other than section 9)".

32 Subsection 20(1)

After "a calendar year", insert "or a financial year".

33 Subsection 20(1)

Omit "the calendar year" (wherever occurring), substitute "the year".

34 At the end of subsections 20(1) and (2)

Add:

Note: A person might be liable for an understatement penalty if the total leviable value worked out on the basis of information given under this subsection is less than the actual total leviable value: see section 14A.

35 Paragraph 33(a)

Repeal the paragraph.

36 Paragraph 33(b)

Omit "paragraph 6(a)", substitute "paragraph 6(1)(a)".

37 Paragraph 33(c)

Repeal the paragraph, substitute:

(c) a decision of the APVMA under subsection 14(2) or 14A(3) remitting, or refusing to remit, the whole or part of an amount of late payment penalty or understatement penalty; or
38 Section 34

Repeal the section, substitute:

34 Self-incrimination

(1): A person is not excused from giving information or producing a document under this Act on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.
(2): However, if the person is a natural person:

(a) the giving of the information or the production of the document; and
(b) any information, document or thing obtained as a direct or indirect consequence of the giving of the information or the production of the document;

is not admissible in evidence against the person in a criminal proceeding, or any other proceeding for the recovery of a penalty, other than a proceeding under section 137.1 or 137.2 of the Criminal Code (about false or misleading information or documents) that relates to the giving of the information or the production of the document.

39 After section 38

Insert:

38A Refund of overpayments

(1): The APVMA may credit an amount of levy, late payment penalty or understatement penalty that has been overpaid by a person against a liability of the person to pay another such amount under this Act.
(2): The APVMA must refund the amount to the person to the extent that it is not credited.

38B Waiver of amounts

The APVMA may waive, up to a maximum of $100, the whole or a part of the liability to pay an amount of levy, late payment penalty or understatement penalty.

Note: If the APVMA waives the whole or a part of the liability to pay an amount, this is a permanent bar to recovering that amount.

38C Rounding of amounts

If the total amount of levy, late payment penalty and understatement penalty payable by a person in respect of a chemical product for a period is not exactly divisible by $2, the APVMA may round the amount down to the nearest amount that is exactly divisible by $2.

40 Subsection 39(2)

Omit "or 12", substitute ", 12 or 12C".

Agricultural and Veterinary Chemicals (Administration) Act 1992

41 Paragraph 58(2)(aa)

Omit "or late payment penalty", substitute ", late payment penalty or understatement penalty".

42 Paragraph 58(2)(ab)

Repeal the paragraph.

Agricultural and Veterinary Chemicals Code Act 1994

43 Paragraph 11(1)(d) of the Schedule

Repeal the paragraph, substitute:

(d) be accompanied by:
(i) if only part of the prescribed fee is required to be paid at the time of making the application—the amount required to be paid; or
(ii) otherwise—the whole of the prescribed fee (if any); and
44 After subsection 164(1) of the Schedule

Insert:

(1A): The APVMA may make a legislative instrument setting out criteria for working out which fee applies under the regulations in a particular case.

45 Subsection 164(3) of the Schedule

Repeal the subsection.

46 Validation of past fees

A fee that was purported to have been paid under the regulations before the commencement of item 45 of this Schedule is taken to have been as valid as the fee would have been if the amendment made by that item had been in force when the fee was paid.

47 After subsection 165(1) of the Schedule

Insert:

(1A): The APVMA may make a legislative instrument setting out criteria for working out which period stated in, or determined in accordance with, the regulations made for the purposes of subsection (1) applies in a particular case.

Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Act 2004

48 Subsection 2(1) (table)

Omit "item 94 of Schedule 1 to the Financial Framework Legislation Amendment Act 2004 " (wherever occurring), substitute "item 74 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 ".

49 Subsection 2(1) (table)

Omit "item 95 of Schedule 1 to the Financial Framework Legislation Amendment Act 2004 " (wherever occurring), substitute "item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 ".

50 Item 483 of Schedule 1 (note)

Omit "item 95 of Schedule 1 to the Financial Framework Legislation Amendment Act 2004 ", substitute "item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 ".

51 Item 484 of Schedule 1 (note)

Omit "item 95 of Schedule 1 to the Financial Framework Legislation Amendment Act 2004 ", substitute "item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 ".

Note: This item does not commence at all if item 484 of Schedule 1 to the Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Act 2004 does not commence. (See table item 9 in subsection 2(1) of this Act.)

52 Item 485 of Schedule 1 (note)

Omit "item 95 of Schedule 1 to the Financial Framework Legislation Amendment Act 2004 ", substitute "item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 ".

53 Item 486 of Schedule 1 (note)

Omit "item 95 of Schedule 1 to the Financial Framework Legislation Amendment Act 2004 ", substitute "item 75 of Schedule 1 to the Financial Framework Legislation Amendment Act 2005 ".

Note: This item does not commence at all if item 486 of Schedule 1 to the Agricultural and Veterinary Chemicals Legislation Amendment (Name Change) Act 2004 does not commence. (See table item 11 in subsection 2(1) of this Act.)

Financial Framework Legislation Amendment Act 2005

54 Subsection 2(1) (table item 2)

Repeal the item, substitute:

2A. Schedule 1, items 1 to 72	The day on which this Act receives the Royal Assent.
2B. Schedule 1, item 73	The day on which this Act receives the Royal Assent. However, if item 42 of Schedule 1 to the Agricultural and Veterinary Chemicals Legislation Amendment (Levy and Fees) Act 2005 commences on or before that day, the provision(s) do not commence at all.
2C. Schedule 1, item 74	The day on which this Act receives the Royal Assent. However, if item 1 of Schedule 2 to the Agricultural and Veterinary Chemicals Legislation Amendment (Levy and Fees) Act 2005 commences on or before that day, the provision(s) do not commence at all.
2D. Schedule 1, items 75 to 440	The day on which this Act receives the Royal Assent.

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