Primary Industries Levies and Charges Disbursement Bill 2023 - Initial Scrutiny [2023] AUSStaCSBSD 207 (8 November 2023)

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Purpose	The bill seeks to enable disbursement of amounts of agricultural levy and charge components for investment in strategic activities for the benefit of levied industries. It also seeks to provide a mechanism for the Commonwealth to make matching payments for research and development.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 18 October 2023
Bill status	Before the House of Representatives

Instruments not subject to an appropriate level of parliamentary oversight^[60]

1.123 Subclause 39(1) seeks to provide that the minister may, by writing, declare a body to be a recipient body. The effect of being declared a recipient body is that a company can receive money from the Commonwealth under Part 2 of the bill (levy and charge amounts and matching payments). Subclause 39(8) of the bill seeks to provide that a declaration made under subclause 39(1) is not a legislative instrument.

1.124 Noting the impact that a declaration made under subclause 39(1) may have, the committee considers that it may be appropriate for the bill to specifically include consultation requirements around the declaration of a recipient body. In this instance, it would be helpful for the bill to specify particular bodies to consult with, or to require that the minister must be satisfied that appropriate consultation has been undertaken, before making a declaration under subclause 39(1).

1.125 The committee notes that subclause 39(2) seeks to provide that the rules may make provision in relation to the declaration of bodies as recipient bodies, and that it may be intended for consultation requirements to be set out in the rules. As legislative instruments, the making of rules under subclause 39(2) are not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill. While it may be necessary for the rules to include some detail as to making provision for the declaration of bodies as recipient bodies, the committee considers it is likely appropriate for the bill to specifically include consultation requirements. This would provide a stronger safeguard than the requirement set out in section 17 of the Legislation Act 2003 which provides that, prior to an instrument being made, the rule-maker must be satisfied that appropriate consultation was undertaken.

1.126 As instruments made under subclause 39(1) are specified to be notifiable instruments, they are not subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. As such, there is no parliamentary scrutiny of notifiable instruments. In this case, the explanatory memorandum explains that a declaration under subsection 39(1) is merely declaratory of the law and is not a legislative instrument within the meaning of section 8 of the Legislation Act 2003.

1.127 Noting the lack of parliamentary oversight over such declarations, the committee requests the minister's advice as to whether the bill can be amended to include a requirement for consultation to occur prior to the declaration of a body as a declared recipient under subclause 39(1) of the bill.

Significant penalties^[61]

1.128 Subclause 72(1) seeks to provide that an entrusted person may disclose relevant National Residue Survey (NRS) information to a person who holds an approval in force under this section. Subclause 72(9) seeks to provide that a person commits an offence if, while the person holds an approval in force under this section, the person receives relevant NRS information, the information is protected information,^[62] the person uses or discloses that information, and the use or disclosure is not in accordance with the approval. The penalty would be 12 months imprisonment.

1.129 Similarly, subclause 81(1) seeks to create an offence for the use or disclosure of protected information if:

1.130 The committee's expectation is that the rationale for the imposition of significant penalties, especially those that involve imprisonment, will be fully outlined in the explanatory memorandum. The committee expects the explanatory memorandum to the bill to address why it is appropriate to impose significant penalties, whether the penalties are broadly equivalent to the penalties for similar offences in Commonwealth legislation, and if not, why not, and whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences).^[64]

1.131 In this case, in relation to the subclause 72(9) offence, the explanatory memorandum merely restates the penalty for the offence without any justification as to why it is appropriate.^[65] In relation to subclause 81(1), the explanatory memorandum explains that the penalty 'has been set to deter non-compliance with the section and provide proportionate and appropriate punishment for a person's wrongdoing'.^[66]

1.132 In both cases, it is not sufficiently clear to the committee why a penalty of 12 months imprisonment has been set and whether it is appropriate.

1.133 As the explanatory memorandum does not appear to provide sufficient justification, the committee requests the minister's detailed advice as to as to why it is considered appropriate to impose a significant penalty of 12 months imprisonment for the offences in subclause 72(9) and 81(1), by reference to comparable Commonwealth offences and the requirements in the Guide to Framing Commonwealth Offences.

Reversal of evidential burden of proof^[67]

1.134 As noted above, subclause 81(1) seeks to create an offence for the use or disclosure of protected information in particular circumstances. Subclauses 81(4) and (5) would provide exceptions to this offence.

1.135 Subclause 81(4) seeks to provide that the offence would not apply if the use or disclosure of the information is required or authorised by this Act or another law of the Commonwealth, or a law of a state or territory prescribed by the rules made for the purposes of this paragraph.

1.136 Subclause 81(5) seeks to provide that the offence would not apply if the person uses or discloses the information in good faith for the purposes of carrying out activities covered by paragraph 66(1)(a) and paid for with amounts debited from the National Residue Survey Special Account,^[68] or in the purported administering or assisting a person in the purported administering of Part 5 of the bill. A note to each subclause confirms that the evidential burden of proof is reversed in relation to each of these proposed defences.

1.137 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[69] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.138 The committee notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

1.139 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. In this case, the explanatory memorandum for both exceptions merely restates the exception and notes that the defendant bears an evidential burden.^[71]

1.140 In this case, it is not apparent that the matters in proposed subclause 81(4) are matters peculiarly within the defendant's knowledge, or that it would be significantly more difficult or costly for the prosecution to disprove the matters than for the defendant to establish them. For example, whether or not conduct is authorised by the Act, or a Commonwealth, state or territory law is not, in the committee's view, a matter that is peculiarly within the defendant's knowledge. Further, the explanatory memorandum does not justify why the prosecution would not be able to obtain this information. While it may be more difficult and costly for the prosecution to do so, this does not in and of itself equate to these matters being peculiarly within the knowledge of the defendant.

1.141 In relation to the exception in proposed subclause 81(5) for good faith, the committee notes that this is a subjective term and whether or not a defendant acted in good faith is open to interpretation. The explanatory memorandum does not provide any further guidance or discussion as to matters or factors that may go towards indicating that a defendant has acted in good faith in this context.

1.142 These matters therefore appear to be matters more appropriately included as an element of the offence.

1.143 The committee requests the minister's advice as to why it is appropriate to reverse the evidential burden of proof under subclauses 81(4) and 81(5).

1.144 The committee suggests that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence in subclause 81(1). The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted by explicitly addressing relevant principles as set out in the Guide to Framing Commonwealth Offences.

Parliamentary oversight^[72]

1.145 Subclause 90(1) seeks to empower the minister to make rules under the Act by way of legislative instrument. In addition, subclause 90(2) would provide that the rules may also confer on the minister or the secretary a power to make a legislative instrument, a notifiable instrument or other written instrument.

1.146 In relation to this power, the explanatory memorandum notes that the purpose is 'to provide flexibility to deal with certain circumstances where they arise'.^[73]

1.147 The committee notes that notifiable instruments are not subject to the tabling, disallowance or sunsetting requirements that typically apply to legislative instruments. As such, there would be no parliamentary scrutiny of any notifiable instruments made by the minister or secretary under the rules as provided by subclause 90(2).

1.148 The committee is of the view that the power to create further non-legislative instruments is more appropriate for inclusion on the face of the bill to allow for appropriate parliamentary consideration and oversight.

1.149 In light of the above, the committee requests the minister's advice as to whether the bill can be amended to provide the power for the minister or secretary to make notifiable and other written non-legislative instruments in relation to particular matters on the face of the bill.

^[60] Clause 39. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[61] Subclauses 72(9) and 81(1). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[62] Protected information, for the purpose of subclause 72(9), is defined in subclause 72(10) to mean 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, and information the disclosure of which could reasonably be expected to prejudice constitutional trade or commerce.

^[63] Protected information, for the purpose of subclause 81(1), is defined in subclause 81(3) to mean 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, and information the disclosure of which could reasonably be expected to prejudice constitutional trade or commerce.

^[67] Subclauses 81(4) and 81(5). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[68] Paragraph 66(1)(a) lists activities towards which payments from the National Residue Survey Special Account can be made.

^[69] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

^[72] Subclause 90(2). The committee draws senators' attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests