Primary Industries Levies and Charges Disbursement Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 239 (29 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 Senate

Instruments not subject to an appropriate level of parliamentary oversight^[122]

2.93 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.

2.94 Noting the impact that a declaration made under subclause 39(1) may have, the committee considered that it may be appropriate for the bill to specifically include consultation requirements around the declaration of a recipient body. In this instance, the committee considered 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).

2.95 In Scrutiny Digest 13 of 2023 the committee sought 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.^[123]

Minister for Agriculture, Fisheries and Forestry’s response^[124]

2.96 The Minister for Agriculture, Fisheries and Forestry (the minister) responded to the committee in a letter dated 20 November 2023.

2.97 The minister advised that the declaration of a body as a declared recipient body forms part of a process to enable the spending of amounts raised through levies and charges on research and development, marketing and other activities. The minister advised that as the imposition of a levy or charge, and the designation of a designated industry sector require the making of a legislative instrument, section 17 of the Legislation Act 2003 requires that any consultation that is appropriate and reasonably practicable must be undertaken before these steps are taken. The minister further advised that under subclause 39(3) of the bill, the minister must have entered into a funding agreement with the body before making a declaration and this means that the body consents to abide by its obligations under both the legislation and the agreement.

Committee comment

2.99 While the committee acknowledges the consultation requirements in the Legislation Act 2003 and the funding agreement that must be entered into before making a declaration, the committee nevertheless considers that including more specific requirements on the face of the bill would be appropriate in this instance, particularly as a subsection 39(1) declaration is a notifiable instrument and therefore is subject to limited parliamentary scrutiny.

2.100 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of relying on the consultation requirements in the Legislation Act 2003 before making a declaration under subsection 39(1), noting the limited scope for Parliament to scrutinise notifiable instruments.

Significant penalties^[125]

2.101 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,^[126] 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.

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

2.103 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.

2.104 As the explanatory memorandum does not appear to provide sufficient justification, in Scrutiny Digest 13 of 2023 the committee sought the minister’s detailed advice 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, Infringement Notices and Enforcement Powers (Guide to Framing Commonwealth Offences).^[128]

Minister for Agriculture, Fisheries and Forestry’s response^[129]

2.105 The minister advised that each of the proposed penalties are appropriate to effectively deter the commission of the relevant offence, and reflect the serious and potentially damaging consequences of each offence, which both involve the unauthorised use or disclosure of protected information. The minister advised that the proposed penalty in subclause 72(9) is consistent with the penalty for the equivalent offence in subsection 11(4) of the National Residue Survey Administration Act 1992 which is being placed by this bill. The proposed penalty in subclause 81(1) is less significant than the penalty for the equivalent offence in subsection 11(1) of the National Residue Survey Administration Act 1992. The proposed penalties are also consistent with the penalty for the equivalent offences in subclause 45(1) of the Primary Industries Levies and Charges Collection Bill 2023.

Committee comment

2.106 The committee thanks the minister for providing this further information in relation to the appropriateness of the penalties for the offences under subclauses 72(9) and 81(1).

2.107 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to subclauses 72(9) and 81(1) 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).

Reversal of the evidential burden of proof^[130]

2.108 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.

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

2.110 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;^[131] 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.

2.111 In Scrutiny Digest 13 of 2023 the committee sought the minister’s advice as to why it is appropriate to reverse the evidential burden of proof under subclauses 81(4) and 81(5). The committee suggested 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) and that its 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.^[132]

Minister for Agriculture, Fisheries and Forestry’s response^[133]

2.112 The minister advised that, in relation to the exception in subclause 81(4), it is appropriate and justified on the basis that it would be both significantly more difficult and costly for the prosecution to disprove than 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 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.

2.113 In relation to the exception in subclause 81(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 or 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.

2.114 The minister further advised that these provisions are consistent with other portfolio legislation.

Committee comment

2.115 In relation to subclause 81(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. The committee notes that the exception states that the offence does not apply if the use or disclosure of the information is authorised or required by this Act or another law of the Commonwealth, or prescribed state or territory law, not whether the defendant used or disclosed information in purported reliance on such a law. 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 and whether information has been used or disclosed and is authorised or required by another law is something ascertainable by the prosecution.

2.116 In relation to subclause 81(5), the committee notes the minister’s advice that whether the defendant acted in good faith is peculiarly within the knowledge of the defendant.

2.117 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 81(4).

2.118 In relation to the reversal of the evidential burden of proof for the offence-specific defence in proposed subclause 81(5), the committee makes no further comment.

Instruments not subject to an appropriate level of parliamentary oversight^[134]

2.119 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.

2.120 In Scrutiny Digest 13 of 2023, the committee requested 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.^[135]

Minister for Agriculture, Fisheries and Forestry’s response^[136]

2.121 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’.

2.122 The minister also advised that any instrument made under subclause 90(2) 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.

Committee comment

2.123 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.

2.124 The committee considers that the bill already provides for the power to make legislative and non-legislative instruments under relevant clauses, and it is not clear to the committee why the power under subclause 90(2) is considered necessary beyond the general rule-making power in subclause 90(1). 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.

2.125 The committee therefore reiterates its concerns and seeks the minister’s further advice as to why it is necessary for subclause 90(2) to specifically authorise rules made under the bill to empower the minister or secretary to make further instruments.

^[122] Clause 39. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[123] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 30–31.

^[124] 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).

^[125] Subclauses 72(9) and 81(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[126] 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.

^[127] 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.

^[128] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 31–32.

^[129] 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).

^[130] Subclauses 81(4) and 81(5). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[131] Paragraph 66(1)(a) lists activities towards which payments from the National Residue Survey Special Account can be made.

^[132] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 33–34.

^[133] 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).

^[134] Subclause 90(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

^[135] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 34–35.

^[136] 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).

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