Animal Health Australia and Plant Health Australia Funding Legislation Amendment Bill 2021 [2022] AUSStaCSBSD 2 (4 February 2022)

• Chapter 1
• Initial scrutiny
• Animal Health Australia and Plant Health Australia Funding Legislation Amendment Bill 2021
• Instruments not subject to parliamentary disallowance1

---

Chapter 1

Initial scrutiny

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Animal Health Australia and Plant Health Australia Funding Legislation Amendment Bill 2021

Purpose	This bill seeks to amend the Australian Animal Health Council (Livestock Industries) Funding Act 1996 and the Plant Health Australia (Plant Industries) Funding Act 2002 to streamline administrative processes by removing redundant provisions, to add provisions that create efficiencies and facilitate future levy arrangements, and to increase consistency between the Acts regarding the spending of emergency response levies.
Portfolio	Agriculture and Northern Australia
Introduced	House of Representatives on 25 November 2021

Instruments not subject to parliamentary disallowance^[1]

1.2 Items 9 and 10 of Schedule 1 to the bill seek to amend the definition of relevant Plant Industry Member within the Plant Health Australia (Plant Industries) Funding Act 2002 (the Act). Currently, section 3 of the Act defines relevant Plant Industry Member as meaning, for a plant product, a designated body for the plant product under either clause 13 of Schedule 27 to the Primary Industries (Excise) Levies Act 1999 or clause 12 of Schedule 14 to the Primary Industries (Customs) Charges Act 1999. This has the effect of providing that a designated body is declared by the minister by legislative instrument. By contrast, the new definition of relevant Plant Industry Member inserted by the bill provides that a relevant Plant Industry Member is determined by the Secretary, or their delegate, by notifiable instrument.^[2]

1.3 Once declared to be a relevant Plant Industry Member a body is taken to represent a particular plant product on which either a Plant Health Australia levy (PHA levy) or an Emergency Plant Pest Response levy (EPPR levy) may be imposed. A body may be the relevant Plant Industry Member for more than one plant product.^[3] In addition, multiple bodies may be declared as relevant Plant Industry Members for a single product.^[4]

1.4 The committee notes that notifiable instruments are not be subject to the tabling, disallowance or sunsetting requirements that typically apply to legislative instruments. As such there is no parliamentary scrutiny of the determinations issued under proposed subsection 3A(2). Noting this, the committee expects the explanatory materials to include a justification for why the determinations issued under proposed subsection 3A(2) are not legislative in character and should not be subject to parliamentary scrutiny. In this instance, the explanatory memorandum states:

The making of these determinations by notifiable instrument is appropriate because this would be an administrative process to confirm that a body represents the industry for that EPPR plant product in the body’s role as a Plant Industry Member. This would also allow those affected by these determinations to access an authoritative form of the instrument on the Federal Register of Legislation. It would be appropriate for the Secretary to make such a determination, having regard to their role and responsibilities. This would allow appropriate oversight of the process to determine a body, while also enhancing administrative efficiency, when compared to the existing process.^[5]

1.5 In addition, the statement of compatibility notes:

Declaring PHA industry members as designated bodies for the purposes of the PHA Act currently necessitates amendments to the designated bodies declarations under the Levies Act and the Charges Act. The Bill would simplify the process of identifying the relevant Plant Industry Member for a given plant product by providing a discretionary power for the Secretary of the Department to determine, by notifiable instrument, one or more bodies in relation to one or more specified EPPR plant products.^[6]

1.6 While acknowledging these explanations, the committee has not generally accepted a desire for administrative flexibility to be a sufficient justification for providing that an instrument will not be a legislative instrument. In this instance the committee notes that determining that a body is a relevant Plant Industry Member has implications for the amount of funds payable to Plant Health Australia and the use of payments out of an EPPR fund by Plant Health Australia. Both of these funding amounts are determined based on the amount of levy payable in relation to a plant product represented by a relevant Plant Industry Member. The committee considers that key matters relating to levies should generally be included within legislative instruments to ensure an appropriate level of parliamentary scrutiny over levy schemes.

1.7 The committee therefore requests the minister's more detailed advice as to why it is considered necessary and appropriate to amend the Plant Health Australia (Plant Industries) Funding Act 2002 to provide that relevant Plant Industry Members will no longer be declared by legislative instrument, noting that such declarations would therefore no longer be subject to parliamentary scrutiny.

---

[1] Schedule 1, items 9 and 10. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[2] Schedule 1, item 10, proposed subsection 3A(2).

[3] See section 10 of the Plant Health Australia (Plant Industries) Funding Act 2002.

[4] See section 11 of the Plant Health Australia (Plant Industries) Funding Act 2002.

[5] Explanatory memorandum, pp. 8-9.

[6] Statement of compatibility, p. 19.