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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 Primary Industries Levies and Charges Collection Bill 2023 seeks
to establish a collection and compliance framework for levies and charges
collected under the agriculture levy system.
The Primary Industries Levies and Charges Disbursement Bill 2023 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.
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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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2.29 Clause 20 of the Primary Industries Levies and Charges Collection Bill 2023 (the Collection bill) 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.
2.30 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.
2.31 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.
2.32 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).
2.33 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.
2.34 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.
2.35 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.[93]
2.36 In response, 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 requirement 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. 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. 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.[94]
2.37 In Scrutiny Digest 15 of 2023, the committee requested that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable.[95]
2.38 The Minister for Agriculture, Fisheries and Forestry (the minister) advised that an addendum to the explanatory memorandum including the key information requested by the committee will be tabled in Parliament as soon as practicable.
2.39 The committee thanks the minister for this response.
2.40 The committee welcomes the minister’s undertaking to table an addendum to the explanatory memorandum to the Primary Industries Levies and Charges Collection Bill 2023 in relation to these scrutiny concerns.
2.41 Subclause 56(1) of the Collection bill 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. 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.
2.42 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[98] (Guide to Framing Commonwealth Offences) have been considered.[99]
2.43 In response, 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. In addition, the minister advised that there is a safeguard included in each clause; and 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.[100]
2.44 In Scrutiny Digest 15 of 2023, the committee requested 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.[101]
2.45 The minister advised that an addendum to the explanatory memorandum including the key information requested by the committee will be tabled in Parliament as soon as practicable.
2.46 The committee thanks the minister for this response.
2.47 The committee welcomes the minister’s undertaking to table an addendum to the explanatory memorandum to the Primary Industries Levies and Charges Collection Bill 2023 in relation to this scrutiny concern.
2.48 Subclause 72(1) of the Primary Industries Levies and Charges Disbursement Bill 2023 (the Disbursement bill) 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,[104] 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.
2.49 Similarly, subclause 81(1) seeks to create an offence for the use or disclosure of protected information if:
• the person is or has been an entrusted person;
• has obtained or generated information in the course of or for the purposes of carrying out or administering particular activities under the Act;
• the information is protected information;[105] and
• the person uses or discloses the information. The penalty is 12 months imprisonment.
2.50 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.[106]
2.51 In response, the minister advised that each of the proposed penalties are appropriate to effectively deter the commission of the relevant offence and are consistent with or less than the penalty for equivalent offences in the National Residue Survey Administration Act 1992 and the Collection bill.[107]
2.52 In Scrutiny Digest 15 of 2023, the committee requested 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.[108]
2.53 The minister advised that an addendum to the explanatory memorandum including the key information request by the committee will be tabled in Parliament as soon as practicable.
2.54 The committee thanks the minister for this response.
2.55 The committee welcomes the minister’s undertaking to table an addendum to the explanatory memorandum to the Primary Industries Levies and Charges Disbursement Bill 2023 in relation to this scrutiny concern.
2.56 Clause 59 of the Collection 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. Subclause 90(2) of the Disbursement bill provides for the same power.
2.57 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.[111]
2.58 In response, 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 rather than in delegated legislation would ‘inhibit the ability for the scheme to respond to evolving industry needs’. Further, 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.[112]
2.59 In Scrutiny Digest 15 of 2023, the committee noted its 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. The committee reiterated its concerns and sought 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.[113]
2.60 The minister advised that a review of the legislation found it is ineffective in meeting industries’ needs now and into the future. The purpose of enabling delegated legislation to empower further instruments to be made is to provide the minister or secretary with the flexibility necessary for administering the system into the future.
2.61 The minister further noted that while the Collection Rules are still being developed, an exposure draft was published on 1 May 2023 and some examples of the administrative matters in mind that may require rules to provide the secretary with a power to make written instruments include the power to make approved forms by written instrument. The minister advised that any rule make under subclause 59(4) (including the Collection Rules) would be subject to parliamentary scrutiny and disallowance.
2.62 The minister noted that the advice in relation to subclause 59(4) of the Collection bill is the same as for subclause 90(2) of the Disbursement bill.
2.63 The committee thanks the minister for this response.
2.64 The committee acknowledges that disallowable instruments made by the minister or secretary would still be subject to parliamentary oversight, however notes that a notifiable instrument is not subject to the same tabling, disallowance or sunsetting requirements. The committee considers that this kind of provision is unusual and does not consider its inclusion has been adequately justified in the circumstances.
2.65 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing for delegated legislation to confer on the minister or secretary a power to make a legislative instrument, a notifiable instrument or other written instrument, noting the impact this has on parliamentary oversight.
[91] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Primary Industries Levies and Charges Collection Bill 2023; Primary Industries Levies and Charges Disbursement Bill 2023, Scrutiny Digest 1 of 2024; [2024] AUSStaCSBSD 14.
[92] Clauses 20, 21 and 23 of the Primary Industries Levies and Charges Collection Bill 2023 (Collection bill). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (ii).
[93] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[94] 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).
[95] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2023 (29 November 2023) pp. 44–46.
[96] The minister responded to the committee's comments in a letter dated 13 December 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 1 of 2024).
[97] Clauses 56, 57 and 58 of the Collection bill. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[98] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 32–33.
[99] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[100] 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).
[101] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2023 (29 November 2023) pp. 51–53.
[102] The minister responded to the committee's comments in a letter dated 13 December 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 1 of 2024).
[103] Subclauses 72(9) and 81(1) of the Primary Industries Levies and Charges Disbursement Bill 2023 (Disbursement bill). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[104] 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.
[105] 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.
[106] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 31–32.
[107] 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).
[108] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2023 (29 November 2023) pp. 56–58.
[109] The minister responded to the committee's comments in a letter dated 13 December 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 1 of 2024).
[110] Subclause 59(4) of the Collection bill and subclause 90(2) of the Disbursement bill. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[111] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2023 (8 November 2023) pp. 20–30.
[112] 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).
[113] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2023 (29 November 2023) pp. 53-54.
[114] The minister responded to the committee's comments in a letter dated 13 December 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 1 of 2024).
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