Product Emissions Standards (Customs) Charges Bill 2017; Product Emissions Standards (Excise) Charges Bill 2017 [2017] AUSStaCSBSD 275 (16 August 2017)

• Product Emissions Standards (Customs) Charges Bill 2017
• Product Emissions Standards (Excise) Charges Bill 2017
• Significant matters in delegated legislation 40

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Product Emissions Standards (Customs) Charges
Bill 2017
Product Emissions Standards (Excise) Charges
Bill 2017

Purpose	These bills seek to impose a charge on: • the importation of products; and • domestically manufactured products prescribed under the Product Emissions Standards legislation
Portfolio	Environment and Energy
Introduced	House of Representatives on 10 August 2017
Scrutiny principles	Standing Order 24(1)(a)(iv) and (v)

Significant matters in delegated legislation ^[40]

1.35 These bills seek to impose a charge on the importation and manufacture of 'emissions-controlled products'.^[41] Products may be prescribed as an 'emissions-controlled product' by rules (delegated legislation) made under clause 9 of the Product Emissions Standards Bill 2017. The amount of the charge imposed is to be prescribed in regulations (or worked out in accordance with a method prescribed in regulations).^[42]

1.36 The explanatory memorandum suggests that it is necessary to have flexibility in prescribing the amount of the charge in regulations as different charges may be prescribed for different emissions-controlled products. The explanatory memorandum also suggests that the charges 'would enable full cost recovery of the costs associated with regulating emissions-controlled products':

Consistent with Australian Government policy, the amount of any applicable charge for different types of emissions-controlled products will be determined on a case-by-case basis through a Cost Recovery Implementation Statement. The amount of the charge imposed would be set at a level that is designed to recover no more than the estimated cost of regulating the type of emissions-controlled product.^[43]

1.37 One of the most fundamental functions of the Parliament is to impose taxation (including duties of customs and excise).^[44] The committee's consistent scrutiny view is that it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax. The committee notes the statement in the explanatory memorandum that it is intended that the charges are to be imposed for the purposes of cost recovery. However, no guidance is provided on the face of the bills limiting the imposition of the charges in this way (for example, there is no provision limiting the charges to 'the estimated cost of regulating the type of emissions-controlled product'), nor are maximum charges specified.

1.38 The committee therefore requests the Minister's advice as to whether at least some level of guidance (for example, limiting the charges to 'the estimated cost of regulating the type of emissions-controlled product') or a maximum level of charge can be specifically included in each bill.

1.39 If no guidance is to be included on the face of the bill, the committee considers that it may be appropriate for the bill to be amended to increase parliamentary oversight by:

• requiring the positive approval of each House of the Parliament before new regulations under clause 6 come into effect;^[45] or

• providing that the regulations do not come into effect until the relevant disallowance period has expired (while retaining the usual procedures in subsection 42(2) of the Legislation Act 2003 so that any regulations are taken to be disallowed if a disallowance motion remains unresolved at the end of the disallowance period).

1.40 The committee also requests the Minister's response in relation to this matter.

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[40] Clause 6 (in both the Customs and Excise bills). The committee draws Senators’ attention to these provisions pursuant to principles 1(a)(iv) and (v) of the committee’s terms of reference.

[41] Clause 5 (in both the Customs and Excise bills).

[42] Clause 6 (in both the Customs and Excise bills).

[43] Explanatory memorandum, pp 46–47 and 48–49.

[44] This principle has been a foundational element of our system of governance for centuries: see, for example, article 4 of the Bill of Rights 1688: 'That levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal'.

[45] See, for example, section 10B of the Health Insurance Act 1973.