Primary Industries Levies and Charges Collection Amendment Bill 2018 [2018] AUSStaCSBSD 121 (9 May 2018)

• Primary Industries Levies and Charges Collection Amendment Bill 2018
• Significant matters in delegated legislation
• Significant matters in non-statutory guidelines 74

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Primary Industries Levies and Charges Collection Amendment Bill 2018

Purpose	This bill seeks to amend the Primary Industries Levies and Charges Collection Act 1991 to: • allow the Secretary of the Department of Agriculture and Water Resources to determine certain acts which, when performed, would make a person liable to collect and report levies; and • support the operation of levy payer registers
Portfolio	Agriculture and Water Resources
Introduced	House of Representatives on 28 March 2018

Significant matters in delegated legislation
Significant matters in non-statutory guidelines ^[74]

1.94 Section 7 of the Primary Industries Levies and Charges Collection Act 1991 (the Act) makes a range of persons that perform certain acts related to the buying, selling, importing and exporting of agricultural produce liable to collect levies and charges. Proposed subsection 7A(1) seeks to allow the secretary to determine, by legislative instrument, additional acts that, when performed, would make a person liable to collect levies and charges. The effect of such a determination would be to expand the scope of activities in relation to which intermediaries^[75] would be required to collect levies or charges.

1.95 Proposed subsections 7A(3) and (4) provide that the minister may, by written instrument, issue guidelines for the purposes section 7A, and that such guidelines are not legislative instruments. Proposed subsection 7A(2) provides that the secretary must have regard to any guidelines in force under subsection 7A(3) when exercising a power under subsection 7A(1).

1.96 The committee's view is that significant matters, such as the types of acts in relation to which a person will be liable to collect a levy or charge, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states that 'leviable commodities are now being traded using platforms, such as online marketplaces, and the way the legislation defines intermediaries needs to be updated to accurately reflect modern business practices'^[76] and that the proposed section will ensure 'that these acts can be covered by the legislative framework and ensure levies and charges can continue to be collected at the most efficient point in the supply chain.'^[77]

1.97 However, beyond the general statement that the proposed amendments 'align with other powers already provided to the Secretary in the Act in relation to the administration and operation of the levy system',^[78] the explanatory memorandum provides no justification for leaving the determination of additional acts to delegated legislation rather than setting these acts out in the bill itself. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.98 In addition, the committee notes that although the bill allows the minister to issue guidelines under subsection 7A(3), it does not positively require that they be issued. In the event that the minister does not issue such guidelines, the secretary's power to determine additional acts would not be subject to any guidance. The explanatory memorandum states that the guidelines will include 'considerations such as Australia's obligations as a member of the World Trade Organisation relating to importation and exportation',^[79] but does not explain why the bill does not require that they be issued. The explanatory memorandum also does not explain why the guidelines will not be legislative instruments, as set out under subsection 7(4), and therefore not be subject to any form of parliamentary scrutiny.

1.99 Finally, where the Parliament delegates its legislative power in relation to significant matters, the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument. Therefore, if the secretary is to be granted the power to determine additional acts by legislative instrument, the committee considers it would be appropriate for consideration to be given to including specific consultation requirements on the face of the bill.

1.100 The committee's view is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this regard, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave to delegated legislation the determination of acts which, when performed, will make a person liable to collect a levy or charge;

• the type of consultation that it is envisaged will be conducted prior to the making of such a determination; and

• whether specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) can be included in the legislation (with compliance with such obligations a condition of the validity of the legislative instrument).

1.101 The committee also requests the minister's advice as to why the bill does not positively require the minister to issue guidelines with respect to the secretary's power to determine additional acts for which a person will be liable to collect a levy or charge, and why it is considered appropriate to state that these guidelines will not be legislative instruments (and therefore not subject to any parliamentary scrutiny).

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[74] Schedule 1, item 5, proposed section 7A. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[75] Section 4 of the Act defines an 'intermediary', in relation to a producer, as a person required under subsections 7(1), (2), (3) or (3A) to pay an amount on behalf of that producer.

[76] Explanatory memorandum, p. 2.

[77] Explanatory memorandum, p. 6.

[78] Explanatory memorandum, p. 2.

[79] Explanatory memorandum, p. 6.