EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2006 No. 109

 

Issued by the Authority of the Parliamentary Secretary to the Minister for

 Agriculture, Fisheries and Forestry

 

 

Primary Industries (Excise) Levies Act 1999

Primary Industries (Customs) Charges Act 1999

Primary Industries Levies and Charges Collection Act 1991

 

 

Primary Industries (Excise) Levies Amendment Regulations 2006 (No. 1)

Primary Industries (Customs) Charges Amendment Regulations 2006 (No. 3)

Primary Industries Levies and Charges Collection Amendment Regulations 2006 (No. 2)

 

 

Section 8 of the Primary Industries (Excise) Levies Act 1999 (the Levies Act), section 8 of the Primary Industries (Customs) Charges Act 1999 (the Charges Act) and section 30 of the Primary Industries Levies and Charges Collection Act 1991 (the Collection Act) provide that the

Governor-General may make regulations prescribing matters required or permitted by those Acts to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to each Act.

 

The purpose of the Regulations is to implement new Commonwealth marketing and research and development (R&D) levies and marketing and R&D export charges on Rubus growers.  The genus Rubus includes raspberries, blackberries and hybrid brambles, for example silvanberries, boysenberries, loganberries, youngberries and marionberries.  The levies and charges are to be collected on fresh market sales only at first point of sale.  Fruit directed to processing and fruit sold on a pick-your-own basis are to be exempt from levies.  Currently, there are no Commonwealth levies or export charges on Rubus.

 

The levies and charges are to be set at 10 cents per kilogram for the first two years, rising to 11 cents per kilogram for the next two years and 12 cents per kilogram beginning year five.  The R&D component is to be set at 10 cents per kilogram from the commencement of the levies and charges.  The marketing component would therefore commence at the beginning of the third year at a rate of one cent per kilogram rising to two cents per kilogram at the commencement of year five.

 

Horticulture Australia Limited (HAL) is the relevant industry services body for the administration of the Rubus industry levy and charge scheme and would be the body to manage moneys collected from the levies and export charges imposed on Rubus growers.  HAL co-ordinates marketing and R&D programs for many horticultural industries.  HAL is funded by statutory levies and export charges, voluntary contributions and Australian Government matching funding for eligible R&D expenditure.  This matching funding is provided under the Horticultural Marketing and Research and Development Services Act 2000.

 

Primary Industries (Excise) Levies Regulations 1999

Subclause 4(1) of Schedule 15 to the Levies Act provides that regulations may fix rates of levy for marketing purposes.

 

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Subclause 4(3) of Schedule 15 to the Levies Act provides that regulations may fix rates of levy for R&D purposes.

 

Subclause 6(4) of Schedule 15 to the Levies Act provides that before the Governor-General makes regulations to fix rates of levy for marketing, the Minister must take into consideration any relevant recommendations made to the Minister by HAL.

 

Subclause 6(6) of Schedule 15 to the Levies Act provides that before the Governor-General makes regulations to fix rates of levy for R&D, the Minister must take into consideration any relevant recommendations made to the Minister by HAL.

 

Subclause 6(7) of Schedule 15 to the Levies Act requires HAL to consult with the body that is the eligible industry body for the relevant horticultural product before recommending rates of levy for marketing to the Minister.

 

Subclause 6(8) of Schedule 15 to the Levies Act requires HAL to consult with the body that is the eligible industry body for the relevant horticultural product before recommending rates of levy for R&D to the Minister.

 

Subclause 6(9) of Schedule 15 to the Levies Act requires that a recommendation made by HAL to the Minister be accompanied by a written statement of the views of the industry body consulted in relation to the recommendation.

 

The Regulations prescribe the Australian Rubus Growers Association (ARGA) as the eligible industry body with which HAL must consult in relation to Rubus.  HAL recommended the rates of levy to the Minister after consultation with ARGA.  The Regulations give effect to the recommendations of HAL, which are consistent with the Rubus industry's request.

 

Primary Industries (Customs) Charges Regulations 2000

Subclause 3(3) of Schedule 10 to the Charges Act provides that regulations may fix rates of export charge for marketing purposes.

 

Subclause 3(5) of Schedule 10 to the Charges Act provides that regulations may fix rates of export charge for R&D purposes.

 

Subclause 5(3) of Schedule 10 to the Charges Act provides that before the Governor-General makes regulations to fix rates of export charge for marketing, the Minister must take into consideration any relevant recommendations made to the Minister by HAL.

 

Subclause 5(5) of Schedule 10 to the Charges Act provides that before the Governor-General makes regulations to fix rates of export charge for R&D, the Minister must take into consideration any relevant recommendations made to the Minister by HAL.

 

Subclause 5(6) of Schedule 10 to the Charges Act requires HAL to consult with the body that is the eligible industry body for the relevant horticultural product before recommending rates of export charge for marketing to the Minister.

 

Subclause 5(7) of Schedule 10 to the Charges Act requires HAL to consult with the body that is the eligible industry body for the relevant horticultural product before recommending rates of export charge for R&D to the Minister.

 

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Subclause 5(8) of Schedule 10 to the Charges Act requires that a recommendation made by HAL to the Minister be accompanied by a written statement of the views of the industry body consulted in relation to the recommendation.

 

The Regulations prescribe the Australian Rubus Growers Association (ARGA) as the eligible industry body with which HAL must consult in relation to Rubus.  HAL recommended the rates of export charge to the Minister after consultation with ARGA.  The Regulations give effect to the recommendations of HAL, which are consistent with the Rubus industry's request.

 

Primary Industries Levies and Charges Collection Regulations 1991

The Collection Act specifies no conditions that need to be met before the power to make Regulations may be exercised.

 

Schedule 22 to the Primary Industries Levies and Charges Collection Regulations 1991 sets out the details for payment of levy and export charge, provision of returns by liable persons and other collection matters for various leviable horticultural products.

 

The Rubus levy and export charge are expected to initially raise around $80,000 annually, rising to $96,000 annually from year five onwards.  After deducting collection costs and the HAL administrative fee, but taking into account government matching funds, it is expected there would be around $140,000 available annually for expenditure on R&D in the Rubus industry.

 

ARGA conducted a thorough consultation campaign with all known potential levy payers.  The intention to implement a statutory levy was canvassed at ARGA's Annual General Meeting held in October 2003, reconfirmed at the 2004 Annual General Meeting held in May 2004 and progressed at Strategic Planning meetings in the two major producing states, Victoria in July 2004 and Tasmania in September 2004.  The ARGA proposal was widely publicised in numerous rural publications throughout Australia and a letter was mailed to all known potential levy payers.

 

After ARGA completed their industry-wide consultation process, a ballot of Rubus growers was conducted in June 2005.  The Ballot was held in accordance with ARGA's Articles of Association.  The Rubus industry has around 120 commercial growers and 67 per cent support was received from those growers that chose to vote on whether the levy and charge should be implemented.

 

Details of the Regulations are contained in the attachment.

 

The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.

 

The Office of Regulation Review was consulted in the preparation of the Regulations.  A Regulation Impact Statement is attached, as Annex A.

 

The Regulations commence on 1 July 2006, the start date requested by ARGA.

 

 

 

0516128A

0516128B

0516128C

 

 

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ATTACHMENT

 

 

DETAILS OF THE PROPOSED PRIMARY INDUSTRIES (EXCISE) LEVIES AMENDMENT REGULATIONS 2006 (No. 1)

 

Regulation 1 -- Name of Regulations

 

This Regulation provides for the name of the regulations to be the Primary Industries (Excise) Levies Amendment Regulations 2006 (No. 1).

 

Regulation 2 -- Commencement

 

This Regulation provides for the commencement date to be 1 July 2006.

 

Regulation 3 -- Amendment of Primary Industries (Excise) Levies Regulations 1999

 

This regulation provides that Schedule 1 amends the Primary Industries (Excise) Levies Regulations 1999 (the Excise Levies Regulations).

 

Schedule 1 Amendments

 

Item [1] --inserts a new Part 25 about Rubus into Schedule 15 to the Excise Levies Regulations.

 

Clause 25.1 provides for a definition of "retail sale" by a producer for the purposes of this Part.

 

Clause 25.2 provides that Rubus are leviable horticultural products for the purposes of the definition in clause 1 of Schedule 15 to the Levies Act.

 

Clause 25.3 specifies that Rubus fruit sold for processing or sold by retail sale by the producer is exempt from levy.

∙          Note 1 indicates that levy is not imposed on leviable horticultural products that are exported from Australia.

∙          Note 2 indicates that cleaning, sorting, grading and packing of Rubus are not processes for the definition of process defined in the Collection Act.

 

Clause 25.4 sets an initial operative rate of marketing levy on Rubus fruit of zero for the first two levy years, becoming one cent per kilogram at the beginning of the third levy year and two cents per kilogram at the commencement of levy year five.

 

Clause 25.5 sets an initial operative rate of R&D levy on Rubus fruit of 10 cents per kilogram.

 

Clause 25.6 provides that the Australian Rubus Growers Association Incorporated is the eligible industry body for Rubus.

 

 

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DETAILS OF THE PROPOSED PRIMARY INDUSTRIES (CUSTOMS) CHARGES AMENDMENT REGULATIONS 2006 (No. 3)

 

Regulation 1 -- Name of Regulations

 

This Regulation provides for the name of the regulations to be the Primary Industries (Customs) Charges Amendment Regulations 2006 (No. 3).

 

Regulation 2 -- Commencement

 

This Regulation provides for the commencement date to be 1 July 2006.

 

Regulation 3 -- Amendment of Primary Industries (Customs) Charges Amendment Regulations 2000

 

This regulation provides that Schedule 1 amends the Primary Industries (Customs) Charges Regulations 2000 (the Customs Charges Regulations).

 

Schedule 1 Amendments

 

Item [1] --inserts a new Part 25 about Rubus into Schedule 10 to the Customs Charges Regulations.

 

Clause 25.1 provides that Rubus are chargeable horticultural products for the purposes of the definition in clause 1 of Schedule 10 to the Charges Act.

∙          Note 1 indicates that charge is not imposed on chargeable horticultural products that have had levy previously paid on them.

∙          Note 2 indicates that clause 25.2 is reserved for future use.

 

Clause 25.3 sets an initial operative rate of marketing charge on Rubus fruit of zero for the first two levy years, becoming one cent per kilogram at the beginning of the third levy year and two cents per kilogram at the commencement of levy year five.

 

Clause 25.4 sets an initial operative rate of R&D charge on Rubus fruit of 10 cents per kilogram.

 

Clause 25.5 provides that the Australian Rubus Growers Association Incorporated is the eligible industry body for Rubus.

 

 

 

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DETAILS OF THE PROPOSED PRIMARY INDUSTRIES LEVIES AND CHARGES COLLECTION AMENDMENT REGULATIONS 2006 (No. 2)

 

Regulation 1 -- Name of Regulations

 

This Regulation provides for the name of the regulations to be the Primary Industries Levies and Charges Collection Amendment Regulations 2006 (No. 2).

 

Regulation 2 -- Commencement

 

This Regulation provides for the commencement date to be 1 July 2006.

 

Regulation 3 -- Amendment of Primary Industries Levies and Charges Collection Regulations 1991

 

This regulation provides that Schedule 1 amends the Primary Industries Levies and Charges Collection Regulations 1991 (the Collection Regulations).

 

Schedule 1 Amendments

 

Item [1] - inserts a new Part 25 about Rubus into Schedule 22 to the Collection Regulations.

 

Clause 25.1 provides that the Part applies to Rubus.

 

Clause 25.2 provides definitions for use in the Part.  The definitions are for "chargeable Rubus", "deal", "exporter", "leviable Rubus" and "Rubus".

∙          Note 1 provides a cross-reference to Rubus being a chargeable horticultural product.

∙          Note 2 provides a cross-reference to Rubus being a leviable horticultural product.

 

Clause 25.3 provides that a levy year for Rubus is a financial year.

 

Clause 25.4 provides that for the definition of process, cleaning, sorting, grading and packing are prescribed for Rubus.

 

Clause 25.5 prescribes Rubus for the definition of producer.

∙          Note 1 clarifies that a producer is the person who owns the product immediately after it is harvested (as defined in paragraph (b) of the definition of producer in the Collection Act).

∙          Note 2 identifies the person who exports chargeable horticultural products, in this case Rubus, from Australia as a producer.

 

Clause 25.6 prescribes Rubus for the purpose of subsection 7(3) of the Collection Act.

∙          The note indicates that the legal responsibilities for intermediaries who are exporting agents are outlined in that subsection.

 

Clause 25.7 prescribes that for people who lodge quarterly returns, levy or charge is due for payment 28 days after the end of the quarter to which the levy or charge relates being the last day on which the quarterly return for the quarter must be lodged.

∙          The note indicates penalties may be imposed under section 15 of the Collection Act for late payment.

 

 

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Clause 25.8 provides that the following persons who deal in leviable or chargeable Rubus in a quarter must lodge a return for a quarter, unless that person is granted an exemption to lodging quarterly returns:

A first purchaser who buys Rubus in the quarter;

A buying agent who buys Rubus in the quarter;

A selling agent who sells Rubus in the quarter;

An exporter who exports Rubus in the quarter;

An exporting agent who exports Rubus in the quarter;

A producer who sells leviable Rubus in the quarter.

∙          The note indicates that offences under section 24 of the Collection Act may be applicable if a return is not submitted.

 

Clause 25.9 provides that a quarterly return must be lodged within 28 days of the end of the quarter to which it relates.

∙          The note indicates that offences under section 24 of the Collection Act may be applicable.

 

Clause 25.10 prescribes that for people who lodge annual returns, levy or charge is due for payment on the last day on which the annual return for the levy year must be lodged (prescribed as 28 August in the following levy year by clause 25.12)

∙          The note indicates that penalties may be imposed under section 15 of the Collection Act for late payment.

 

Clause 25.11 specifies that the persons mentioned in clause 25.8 who deal in leviable or chargeable Rubus must lodge an annual return if they are exempt from lodging quarterly returns.

∙          The note indicates that offences under section 24 of the Collection Act may be applicable if a return is not submitted.

 

Clause 25.12 prescribes that an annual return must be lodged by 28 August in the next levy year.

∙          The note indicates that offences under section 24 of the Collection Act may be applicable if a return is not submitted.

 

Clause 25.13 stipulates what must be included in a quarterly or annual return.

∙          The note indicates that offences under section 24 of the Collection Act may be applicable if information is not provided.

 

Clause 25.14 specifies who may apply to be exempt from the requirement to lodge a quarterly return in a levy year but lodge an annual return instead.  The main criterion is that the person has reasonable grounds for believing that the total amount of levy and charge payable in the levy year is likely to be less than $500.

 

Clause 25.15 specifies what must be included in a written application for exemption from the requirement to lodge a quarterly return, and in its place be allowed to lodge an annual return for that levy year.

 

Clause 25.16 stipulates the conditions for granting or refusing an exemption from the requirement to lodge quarterly returns.  The applicant is to be given written notice of the decision.

 

 

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Clause 25.17 stipulates what conditions apply for continuing to exempt from lodging a quarterly return.  The applicant is to be given written notice of the decision.

 

Clause 25.18 stipulates when a quarterly return is to be lodged if exemption is refused or not continued.

∙          The note indicates that offences under section 24 of the Collection Act may be applicable if a return is not submitted.

 

Clause 25.19 stipulates what records must be kept by producers.  A penalty of 10 penalty units is provided for breaches of this requirement.  Section 4AA of the Crimes Act 1914 provides that a penalty unit equals $110.  An offence under this clause is an offence of strict liability.

∙          The note provides a cross-reference to offences in relation to how long records must be kept.

 

Clause 25.20 stipulates what records must be kept by first purchasers and buying agents.  A penalty of 10 penalty units is provided for breaches of this requirement.  An offence under this clause is an offence of strict liability.

∙          The note provides a cross-reference to offences in relation to how long records must be kept.

 

Clause 25.21 stipulates what records must be kept by exporters and exporting agents.  A penalty of 10 penalty units is provided for breaches of this requirement.  An offence under this clause is an offence of strict liability.

∙          The note provides a cross-reference to offences in relation to how long records must be kept.

 

Clause 25.22 stipulates what records must be kept by selling agents.  A penalty of 10 penalty units is provided for breaches of this requirement.  An offence under this clause is an offence of strict liability.

∙          The note provides a cross-reference to offences in relation to how long records must be kept.

 

Clause 25.23 stipulates that a person may apply to the Administrative Appeals Tribunal for a review of a decision made by the Secretary relating to the grant or refusal to grant an exemption under paragraphs 25.16(1)(a) or 25.17(1)(a) of these regulations.