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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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The bill seeks to establish a collection and compliance framework for
levies and charges collected under the agriculture levy system.
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Portfolio
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Agriculture, Fisheries and Forestry
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Introduced
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House of Representatives on 18 October 2023
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Bill status
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Before the Senate
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2.36 Clause 20 seeks to empower a compliance officer to exercise a range of monitoring powers under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) in relation to: the provisions of this bill or the rules; or an offence against the Crimes Act 1914 (Crimes Act) or the Criminal Code 1995 (Criminal Code) that relates to this bill or its rules.
2.37 Subclause 20(10) seeks to provide that a compliance officer can be assisted by other persons in carrying out their duties or functions under the Regulatory Powers Act in relation to the bill. Subclause 20(11) seeks to provide that both an authorised person and a person assisting can use such force against things as is necessary and reasonable in the circumstances.
2.38 Clause 21 of the bill seeks to provide a mirroring provision enabling the investigatory powers in Part 3 of the Regulatory Powers Act to apply in relation to the bill's offence and civil offence provisions, and offences against the Crimes Act or the Criminal Code that relate to this bill or its rules.
2.39 Clause 23 of the bill seeks to provide that the following provisions of the bill are subject to an infringement notice under Part 5 of the Regulatory Powers Act:
• subclauses 17(1), (2), (3) or (4) (penalties for failure to give return or notice under the rules);
• subclauses 18(1) or (2) (penalties for failure to make or keep records under the rules);
• subclauses 26(4) or (5) (Secretary may require information or documents);
• subclauses 47(1),(3),(5) or (8) (civil penalty provisions for false or misleading information or documents).
2.40 Further, subclause 23(2) seeks to provide that for the purposes of Part 5 of the Regulatory Powers Act a compliance officer is an infringement officer.
2.41 Clause 4 of the bill seeks to define a compliance officer as either the Secretary or an Australian Public Service (APS) employee in the department appointed by the Secretary under clause 52 of the bill.
2.42 In Scrutiny Digest 13 of 2023 the committee sought the minister’s advice as to:
• why it is necessary and appropriate for any APS employee of the department to be conferred monitoring and investigative powers as a compliance officer, or person assisting a compliance officer, and as an infringement officer; and
• whether the bill can be amended to require that the only employees in possession of the appropriate training, qualifications, skills or experience be designated compliance officers or persons assisting compliance officers.[102]
2.43 The Minister for Agriculture, Fisheries and Forestry (the minister) responded to the committee in a letter dated 20 November 2023.
2.44 The minister advised that the bill seeks to replicate the existing practice of empowering the secretary to appoint APS employees with relevant training and experience to compliance officer roles. The minister advised that currently there are around 20 compliance officers, all of whom are specialised staff. The minister explained that this arrangement is intended to continue despite there being no legislative requirements for compliance officers to have specialised training, qualifications and experience. The minister also advised that experienced compliance officers will supervise any officers assisting, and there are safeguards which limit the powers of such assisting officers.
2.45 The minister further advised that due to the large volume of compliance related activities in this context it would not be feasible to restrict compliance officers to members of the Senior Executive Service.
2.46 The minister advised that, in light of these reasons, it would not be necessary to amend the bill to expressly require that officers have particular skills, experience or training.
2.47 The committee thanks the minister for providing this further information in relation to compliance officers.
2.48 In light of the information provided the committee makes no further comment in relation to these matters.
2.49 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to vicarious liability be tabled in the Parliament as soon as practicable. The committee notes the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.50 Division 3 of Part 5 of the bill seeks to set out authorised uses and disclosures of relevant levy/charge information. Levy/charge information is defined in clause 4 as information obtained by a person under the bill or rules, or obtained or generated by a person in the course of administering the bill or rules, or assisting another person to do so.
2.51 A note to Division 3 confirms that each provision in Division 3 that authorises the use or disclosure of information would also provide an authorisation for the purposes of the Privacy Act 1988 (Privacy Act) and other laws.
2.52 There are a range of proposed authorised disclosures of levy/charge information by entrusted persons set out in Division 3. These would include: disclosures in the process of administering the bill; disclosures to Commonwealth entities; disclosures under other laws; disclosures for law enforcement; and other purposes.
2.53 Of these provisions, only two types of disclosures (permitted by clause 28) would be prevented from disclosing personal information, as per subclause 28(4). This is in relation to information disclosed for agricultural research and policy, and information disclosed by staff for the performance of functions of the Australian Bureau of Agricultural and Resource Economics and Sciences under subclauses 28(2) and (3).
2.54 Secondary use of information received by a declared recipient body or a statutory recipient body under clause 32 would also be permitted for a range of specified purposes under clause 42, such as for maintaining a register of levy or charge payers.
2.55 In Scrutiny Digest 13 of 2023 the committee sought the minister’s advice as to:
• whether personal information may be captured within the authorised uses and disclosures set out in relation to relevant levy/charge information in Division 3 of Part 5 of the bill; and, if so;
• the anticipated scope or type of personal information that would be collected, used and disclosed.[105]
2.56 The minister advised that levy/charge information may include personal information such as names, residential addresses, and, in limited circumstances, sensitive information within the definition of the Privacy Act 1988 (the Privacy Act). The minister also advised that this part of the bill provides appropriate safeguards against the unauthorised use and disclosure of personal information and sensitive information, and that the protections in the Privacy Act apply.
2.57 The committee thanks the minister for this response which clarifies the scope and limitations of personal and sensitive information that may be collected, used and disclosed under Division 3 of Part 5 of the bill.
2.58 In light of the information provided the committee makes no further comment in relation to this matter.
2.59 Subclause 45(1) proposes to prescribe a criminal offence when: an entrusted person has obtained or generated information for the purposes of administering or assisting a person to administer the bill or the rules; the information is commercially sensitive and the disclosure of which could reasonably be expected to found an action by a person for a breach of a duty of confidence; and the entrusted person uses or discloses the information. The offence carries a maximum penalty of 12 months imprisonment.
2.60 Subclauses 45(4) and (5) set out proposed offence-specific defences for the offences in subclauses 45(1) and (2). Subclause 45(4) seeks to provide that the offences do not apply if the use or disclosure of the information is required or authorised by the bill or another Commonwealth law, or a law of a State or Territory prescribed by the rules made for the purposes of this paragraph. Subclause 45(5) seeks to provide that the offences do not apply if the person uses or discloses the information in good faith for the purposes of administering or assisting a person to administer the bill or the rules, or monitoring compliance or assisting a person to monitor compliance with the bill or the rules. A note to each subclause confirms that the evidential burden of proof is reversed in relation to each of these proposed defences.
2.61 In Scrutiny Digest 13 of 2023 the committee sought the minister’s advice as to why it is proposed to use an offence-specific defence for the criminal offence in subclause 45(1).[108] The committee noted that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence, and consideration of the appropriateness of a provision which reverses the burden of proof is assisted if a response explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.[109]
2.62 In relation to the offence-specific defence in subclause 45(4) the minister advised that it would be ‘both significantly more difficult and costly for the prosecution to disprove that for the defendant to establish the matter, and the relevant matter is peculiarly within the knowledge of the defendant’. The minister noted that the reversed burden means that the defendant needs to only prove that one law authorises the use or disclosure, and that if the burden were not reversed then the prosecution would need to prove that no law authorises the use or disclosure.
2.63 In relation to the offence-specific defence in subclause 45(5) the minister advised that:
whether a defendant acted in good faith would require consideration of the defendant’s subjective belief about why they considered they were required to authorised to use or disclose the information...it would be significantly more difficult and costly for the prosecution to prove that the defendant did not act in good faith.
2.64 The minister further advised that these provisions are consistent with other portfolio legislation.
2.65 In relation to subclause 45(4), while noting the advice provided, it remains unclear to the committee how whether or not a disclosure was authorised by law is a matter peculiarly within the knowledge of the defendant. While the committee accepts such a matter may be more difficult or costly for the prosecution to establish, the committee reiterates its view that this does not in and of itself equate to these matters being peculiarly within the knowledge of the defendant. Further, whether information has been used or disclosed and is authorised or required by another law is something ascertainable by the prosecution.
2.66 In relation to subclause 45(5), the committee notes the minister’s advice that whether the defendant acted in good faith is peculiarly within the knowledge of the defendant.
2.67 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof for the offence-specific defence in subclause 45(4).
2.68 In relation to the reversal of the evidential burden of proof for the offence-specific defence in proposed subclause 45(5), the committee makes no further comment.
2.69 Subclause 53(1) seeks to provide that the Secretary may arrange for the use, under the Secretary's control, of computer programs for any purposes for which the Secretary may, under the bill or the rules, make a decision of a kind specified in the rules for the purposes of this subsection. Subclause 53(2) would require the Secretary to take all reasonable steps to ensure that each decision made by a computer program is a decision the Secretary could validly make under the bill or rules. Subclause 53(4) also seeks to provide that the Secretary may substitute a computer-made decision if they are satisfied that the decision is not the correct or preferable decision.
2.70 Clause 48 of the bill provides for internal merits review of listed decisions made under the bill, and clause 49 also provides for external merits review by the Administrative Appeals Tribunal of listed decisions. For example:
• decisions made under proposed clause 9 and proposed clause 11 to refuse to remit an amount that a person is liable to pay by way of penalty;
• decisions made under proposed subclause 31(4) to grant or refuse to grant a person or body an approval; or
• a decision made under proposed subclause 44(3) to specify conditions in an approval.
2.71 That provision has been made for these listed decisions made under the bill to be both internally and externally reviewable indicates that these decisions are complex and discretionary, and are therefore more vulnerable to legal error due to the imposition of automated decision-making.
2.72 In Scrutiny Digest 13 of 2023 the committee sought the minister’s advice as to:
• why it is considered necessary and appropriate to permit the Secretary to arrange for the use of computer programs to make decisions in relation to any decision specified in the rules; and
• whether consideration has been given to prohibiting the decisions listed in proposed clauses 48 and 49 from being prescribed by the rules as being decisions to which automated decision-making apply; and
• whether consideration has been given to how automated decision-making processes will comply with administrative law requirements (for example, the requirement to consider relevant matters and the rule against fettering of discretionary power).[112]
2.73 The minister advised that there are appropriate safeguards in the bill to support the use of automated decision-making, including:
• legislative instruments which specify the decisions in the bill to be subject to automated decision-making will be scrutinised by Parliament, including the Senate Committee for the Scrutiny of Delegated Legislation, and will be subject to appropriate consultation; and
• the Secretary cannot delegate the power to make an instrument which specifies decisions to be subject to automated decision-making, and this would include consideration at the highest level in the department as to administrative law requirements; and
• the Secretary can substitute an automated decision if they consider it was not the correct or preferable decision, and that this would provide a safeguard should the outcome of an automated decision be incorrect or undesirable; and
• the Secretary has discretion as to which decisions will be subject to automated decision-making.
2.74 While noting this advice, the committee reiterates its view that the decisions listed in clauses 48 and 49 may not be appropriate for automated decision-making, and the bill should provide that these decisions cannot be prescribed as such in legislative instruments made under subclause 53(1).
2.75 The committee reiterates its concerns regarding the impact of automated decision-making on the quality of administrative decisions. Administrative law typically requires decision-makers to engage in an active intellectual process in respect of the decisions they are required or empowered to make. A failure to engage in such a process—for example, where decisions are made by computer rather than by a person—may lead to legal error.
2.76 In addition, there are risks that the use of an automated decision-making process may operate as a fetter on discretionary power, by inflexibly applying predetermined criteria to decisions that should be made on the merits of the individual case. These matters are particularly relevant to more complex or discretionary decisions, and circumstances where the exercise of a statutory power is conditioned on the decision-maker taking specified matters into account or forming a particular state of mind.
2.77 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the bill providing that decisions subject to automated-decision making can be specified in a legislative instrument, including discretionary decisions.
2.78 Subclause 56(1) seeks to provide that the bill and the rules apply to a partnership as if it were a person. Subclause 56(4) seeks to provide that an offence against the bill or rules is taken to have been committed by each partner in the partnership who, at the time of the offence, did the conduct or act, aided, abetted, counselled or procured the relevant act or omission, or was in any way knowingly concerned in, or party to, the relevant act or omission whether directly or indirectly. Subclause 56(5) seeks to provide a mirror provision for the contravention of civil penalties in the bill and rules.
2.79 Clause 57 is a mirror provision seeking to impose vicarious liability in relation to trusts, and clause 58 is a mirror provision seeking to impose vicarious liability in relation to unincorporated bodies or associations.
2.80 In Scrutiny Digest 13 of 2023 the committee sought the minister’s advice as to the rationale for imposing vicarious liability in clauses 56, 57 and 58, and whether the principles identified in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers[115] (Guide to Framing Commonwealth Offences) have been considered.[116]
2.81 The minister advised that these clauses are based on standard provisions which are used in several other Commonwealth Acts that provide that partnerships, trusts and unincorporated bodies or associations are considered legal entities for the purposes of the bill and the rules.
2.82 The minister advised that a safeguard is included in each clause
which provides that an offence will only be committed if the partner, trustee or member dud the relevant act or made the relevant omission or aided, abetted, counselled or procured the relevant act or omissions or was in any way knowingly concerned in, or party to, the relevant act or omission.
2.83 The minister noted that this is consistent with the Guide to Framing Commonwealth Offences which holds that a person should only be responsible for their own acts or omissions, and that responsibility has traditionally been imposed on the partners of a partnership and members of an unincorporated association in the context of tax law.
2.84 The committee thanks the minister for this advice, and notes that this information is helpful in explaining the operation of these clauses.
2.85 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to vicarious liability be tabled in the Parliament as soon as practicable. The committee notes the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.86 Clause 59 of the bill would empower the secretary to make rules under the bill by way of legislative instrument. In addition, subclause 59(4) 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.
2.87 In Scrutiny Digest 13 of 2023 the committee sought 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 on the face of the bill.[119]
2.88 The minister advised that providing the power for the minister or secretary to make notifiable and other written non-legislative instruments on the face of the bill as opposed to in delegated legislation would ‘inhibit the ability for the scheme to respond to evolving industry needs’.
2.89 The minister also advised that any instrument made under clause 59 which provided the minister or secretary with the power to make a non-legislative instrument would itself be subject to parliamentary scrutiny and disallowance. Further, the minister advised that only instruments which are not legislative in character could appropriately be made as notifiable instruments.
2.90 The committee notes the minister’s response. However, the committee’s scrutiny concern relates to the ability for delegated legislation to further delegate legislative power (devolving Parliament’s law-making power), especially the power for rules to make provision for a power to make a notifiable instrument which is not subject to parliamentary oversight.
2.91 The committee considers that if there are particular matters the minister has in mind that may require instruments to be made in relation to them, these should be included on the face of the bill, rather than relying on delegated legislation to empower further instruments to be made.
2.92 The committee therefore reiterates its concerns and seeks the minister’s further advice as to why it is necessary for subclause 59(4) to specifically authorise rules made under the bill to further empower the minister or secretary to make instruments.
[100] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Primary Industries Levies and Charges Collection Bill 2023, Scrutiny Digest 15 of 2023; [2023] AUSStaCSBSD 238.
[101] Clauses 20, 21 and 23. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (ii).
[102] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[103] The minister responded to the committee's comments in a letter dated 20 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023).
[104] Division 3 of Part 5. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[105] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[106] The minister responded to the committee's comments in a letter dated 20 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023.
[107] Clause 45. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[108] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[109] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011.
[110] The minister responded to the committee's comments in a letter dated 20 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023.
[111] Subclause 53(1). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[112] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[113] The minister responded to the committee's comments in a letter dated 20 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023.
[114] Clauses 56, 57 and 58. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[115] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 32–33.
[116] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[117] The minister responded to the committee's comments in a letter dated 20 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023.
[118] Clause 59. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).
[119] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20-30.
[120] The minister responded to the committee's comments in a letter dated 20 November 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 15 of 2023.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2023/238.html