Commonwealth Numbered Regulations - Explanatory Statements

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IMPORTED FOOD CHARGES (COLLECTION) REGULATION 2015 (SLI NO 190 OF 2015)

EXPLANATORY STATEMENT

Select Legislative Instrument No. 190, 2015

Issued by Authority of the Minister for Agriculture and Water Resources

Imported Food Charges (Collection) Act 2015

Imported Food Charges (Collection) Regulation 2015

Legislative Authority

The Imported Food Charges (Collection) Act 2015 (the Act) concerns the collection of charges under the Imported Food Charges (Imposition--General) Act 2015, the Imported Food Charges (Imposition--Customs) Act 2015 and the Imported Food Charges (Imposition--Excise) Act 2015 (the imported food charges legislation).

Section 22 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Paragraph 8(a) of the Act provides that a regulation may be made to specify when an imported food charge is due and payable.

Subparagraphs 8(b)(i) and (ii) of the Act provide that regulations may be made relating to the liability of a person's agent to pay imported food charges on behalf of that person and the recovery of those charges from the person by the agent.

Subsection 11(1) of the Act provides that a regulation may be made that provides for a late payment fee to be imposed in circumstances where an imported food charge that is due and payable has not been paid.

Subsection 11(3) of the Act specifies that a regulation may prescribe one or more persons to be liable to pay a late payment fee in relation to an imported food charge that has not been paid.

Purpose

The purpose of the Imported Food Charges (Collection) Regulation 2015 (the Regulation) is to prescribe details relating to the collection of charges imposed under the related imported food imposition legislation including the time for payment, an agent's liability to pay an imported food charge and late payment fees.

The Regulation is necessary to implement the new imported food cost recovery charges developed as part of the Department of Agriculture and Water Resources' (the department) redesign of cost recovery arrangements.

Background

The importation of food is managed under the Imported Food Control Act 1992 (Imported Food Control Act) and related delegated legislation.  The Imported Food Control Act provides for the management of food entering Australia to ensure compliance with Australian food standards and the requirements of public health and safety.  The volume of food imports continues to grow, as does the range of imported foods and the complexity of the supply chains used by Australian food importers.  These and many other factors all contribute to the complexity of managing the standards of imported food.

Monitoring compliance with the arrangements under the Imported Food Control Act comes at a cost.  The Australian Government Cost Recovery Guidelines state that agencies recover some or all the costs of activities that they provide.

The policy authority for continued cost recovery of imported food activities was confirmed in the 2015-16 Budget when the Australian Government announced the redesign of the department's cost recovery arrangements.  The redesign improves the department's cost recovery arrangements so they are financially sustainable and support the efficient and effective delivery of imported food activities into the future. It does this by:

*         recovering the full costs of activities undertaken by the department, where appropriate,

*         simplifying the structure of fees and charges where appropriate

*         achieving greater equity in client contributions to system costs

Commencement of the Act and the associated imported food charges legislation in June 2015 provides the appropriate legal structure for the recovery of costs through the imposition of charges as a cost recovery levy, rather than a fee.

From 1 December 2015 the Regulation will operate alongside the legislative framework for cost recovering through fees where a service is provided directly to an individual or business or organisation.  These fees are contained within the Imported Food Control Amendment (Fees) Regulation 2015.

Impact and Effect

This Regulation assists the department to collect charges imposed under both the Imported Food Charges (Imposition--General) Act 2015 and the Imported Food Charges (Imposition--Customs) Act 2015.  

This Regulation gives effect to this by specifying the manner in which the imported food charges are to be paid, including the time when a specified imported food charge is to be paid, the liability of a person's agent to pay charges on the person's behalf and the establishment of late payment fees where charges are not paid in the time prescribed.

Consultation

The department consulted with stakeholders during the development of the redesigned cost recovery fees and charges.  This included the department working with all imported food-related industry consultative committees and other clients and interested stakeholders through public engagement forums.  The department released a draft Cost Recovery Implementation Statement (CRIS) for public comment and provided an opportunity for stakeholders to provide feedback through a submissions process.

Stakeholder feedback was taken into account and the final CRIS was certified by the Secretary of the department and endorsed by the Minister for Agriculture and Water Resources.  The Minister for Finance agreed to release the final CRIS which is available on the department's website.

The Regulation is compatible with human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  A full statement of compatibility is set out in Attachment A.

A Regulatory Impact Statement (RIS) was completed on the department's quarantine, imported food and export certification cost recovery redesign (Office of Best Practice Regulation ID: 17726).  OBPR assessed the RIS as best practice.  A copy of the RIS is attached.

The Regulation is a legislative instrument for the purpose of the Legislative Instruments Act 2003.

Details of the Imported Food Charges (Collection) Regulation 2015

Section 1 - Name of Regulation
This section provides that the name of the Regulation is the Imported Food Charges (Collection) Regulation 2015.

Section 2 - Commencement
This section provides that the Regulation will commence on 1 December 2015.

Section 3 - Authority
This section provides for the Regulation to be made under the Imported Food Charges (Collection) Act 2015.

Section 4 - Definitions
This section provides definitions of terms used in the Regulation. Notes are provided on each definition below:

Act
This definition provides that the Act means the Imported Food Charges (Collection) Act 2015

Imported food charge (customs)
This definition provides that a 'imported food charge (customs)' means an imported food charge imposed under section 6 of the Imported Food Charges (Imposition--Customs) Act 2015.

Imported food charge (general)
This definition provides that a 'imported food charge (general)' means an imported food charge imposed under section 6 of the Imported Food Charges (Imposition--General) Act 2015.

Section 5 - Time for payment
This section provides that an imported food charge (customs) or imported food charge (general) (an imported food charge) will be due and payable when a demand for payment of the charge is made.

Section 6 - Agent's liability to pay imported food charge
This section provides that an agent of a person liable to pay an imported food charge is jointly and severally liable with that person to pay the charge.  This section also provides that, where an agent of a person liable to pay an imported food charge pays the charge on behalf of that person, the agent may recover such an amount from the person as a debt.

By ensuring that an agent of a person is jointly and severally liable to pay an imported food charge where that person is liable to pay the charge, the Commonwealth is able to appropriately recover imported food charges prescribed under both the Imported Food Charges (Imposition--General) Act 2015 and the Imported Food Charges (Imposition--Customs) Act 2015.

Section 7 - Late payment fee
This section provides that, in circumstances where a imported food charge is not paid at or before the time the charge is due and payable, a late payment fee will also be due and payable in additional to the charge. This section also provides that the following formula will be used to calculate the amount of a late payment fee in any particular circumstance:

Providing for a late payment fee in circumstances where an imported food charge is due and payable will encourage compliant behaviour in those liable to pay an imported food charge and will ensure that they are paid on time and that the Commonwealth recovers its costs.

Section 8 - Person liable to pay late payment fee
This section provides that, if an imported food charge is due and payable and the person liable to pay the charge, or an agent of that person, has not paid the charge at or before the time the charge is due and payable, the person and the agent are jointly and severally liable to pay the late payment fee.

By providing that an agent of a person is jointly and severally liable with the person to pay a late payment fee, the Commonwealth is able to ensure that the liability to pay a late payment fee will be with the appropriate person or persons.

ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Imported Food Charges (Collection) Regulation 2015

This Legislative Instrument 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 Legislative Instrument

The purpose of the Imported Food Charges (Collection) Regulation 2015 (the Regulation) is to prescribe details relating to the collection of charges imposed under the related imported food imposition legislation including the time for payment, an agent's liability to pay an imported food charge and late payment fees.

The Regulation is necessary to implement the new imported food cost recovery charges developed as part of the Department of Agriculture and Water Resources' redesign of cost recovery arrangements.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

The Hon. Barnaby Joyce MP

Minister for Agriculture and Water Resources

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