Agriculture (Biosecurity Protection) Charges Bill 2024; Agriculture (Biosecurity Protection) Levies Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 51 (20 March 2024)

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Purpose	The bills seek to provide for the imposition of a new biosecurity protection levy and charge to be payable by certain producers of agricultural, forestry and fisheries products within Australia.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 28 February 2024
Bill status	Before the House of Representatives

Charges and levies in delegated legislation^[3]

1.2 Subclause 7(1) of each of the Agriculture (Biosecurity Protection) Charges Bill 2024 and the Agriculture (Biosecurity Protection) Levies Bill 2024 (together, the Imposition Bills) seek to provide for the imposition, via regulation, of a biosecurity protection charge and levy (BPL) on a product that is exported from Australia, or on the export of a product from Australia.^[4] Subclause 11(1) of each of the Imposition Bills seek to provide that the rate of the BPL is the rate specified in or worked out in accordance with the regulations.

1.3 The committee considers that it is for the Parliament, rather than the Executive, through the making of delegated legislation, to set the rates of a tax. At a minimum, some guidance in relation to the amount of a charge or levy that may be imposed in delegated legislation should be included in the enabling Act. Where a bill leaves the setting of the rate of a charge or levy to delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to do so. Further, if there is no limit on the amount of the charge or levy that may be imposed, the explanatory memorandum should provide justification as to why it would not be appropriate to include such a limitation on the face of the bill.

1.4 In this instance, neither of the Imposition Bills provide a cap that will be applicable to the charges and levies. The explanatory memorandum explains:

The Act would establish a framework that provides for [BPL or] charges to be imposed in relation to different products by regulations. Due to the number of products on which [BPL or] charge is to be imposed, it is necessary and appropriate for certain details of [levy rates or] charges to be included in the regulations rather than in the Act.

By providing certain [BPL or] biosecurity protection charge settings to be located in the regulations, rather than split between the Act and the regulations, the proposed Act would increase accessibility for industry in understanding charge settings and would provide the necessary flexibility for rates of BPL to be adjusted where necessary and appropriate.^[5]

1.5 While acknowledging the explanation in the explanatory memorandum, the committee remains concerned that the rate of a charge or levy may be set by the Executive, through the making of delegated legislation, without constraint that could be provided by including on the face of the bill appropriate guidance or the inclusion of limits on the amounts of BPL that may be imposed.

Incorporation of external materials as existing from time to time^[6]

1.7 Subclause 18(1) of each of the Imposition Bills seek to provide that the Governor-General may make regulations prescribing matters required or permitted by the Act or by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subclause 18(3) seeks to provide that, despite subsection 14(2) of the Legislation Act 2003, the regulations may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

1.8 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee’s consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

It is considered appropriate to enable the incorporation of documents as they exist from time to time because the documents that would be referred to may include technical reference materials or production standards that are updated as required.

It is intended that where the regulations would incorporate such documents, they would either be freely or publicly available, or they would be documents required in the ordinary course of doing business in the particular industry. For example, the tea tree oil levy is imposed with reference to the ISO standard for tea tree oil production. In Australia, industry practice requires tea tree oil to conform to this standard, so access to the standard is already an industry requirement.

In order to comply with paragraph 15J(2)(c) of the Legislation Act, the explanatory statements for the regulations that apply, adopt or incorporate any matter contained in an instrument or other writing as in force or existing from time to time would contain a description of the relevant incorporated material and indicate how it may be obtained.^[7]

1.10 While the committee acknowledges this explanation, the committee considers that documents required in the ordinary course of doing business in the particular industry should be freely and readily available to all persons interested in the law, whether or not they are involved in the industry concerned. The committee does not consider that the inclusion of ‘a description of the relevant incorporated material’ would be sufficient for the purposes of making the content of the law accessible to all interested parties.

1.11 The committee understands that, in instances where incorporated documents are not otherwise freely available, it is not uncommon for the documents to be made available by Departments in other manners, such as via access through public library systems, the National Library of Australia, or at Departmental offices, for free viewing by interested parties.^[8]

1.12 The committee requests the minister’s advice as to whether material incorporated from time to time will be made freely and readily available to all persons interested in the law, including individuals not in the industries concerned.

^[3] Subclauses 7(1) and 11(1) of each of the bills. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv).

^[4] Subclause 8(1) further seeks to provide that the regulations may impose a BPL in relation to one or more specified products in the circumstances prescribed by the regulations and clause 9 provides that the regulations may provide for exemptions from a charge.

^[6] Subclause 18(3) of each of the bills. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).

^[8] See, for example, correspondence between the Attorney-General and the Senate Standing Committee for the Scrutiny of Delegated Legislation in relation to the Disability (Access to Premises – Buildings) Amendment Standards 2020 [F2020L01245].

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