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Quarantine Charges (Collection) Bill 2014 [and] Quarantine Charges (Imposition—General) Bill 2014 [and] Quarantine Charges (Imposition—Excise) Bill 2014 [and] Quarantine Charges (Imposition—Customs) Bill 2014



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ISSN 1328-8091

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BILLS DIGEST NO. 53, 2013-14 20 MARCH 2014

Quarantine Charges (Collection) Bill 2014 [and] Quarantine Charges (Imposition—General) Bill 2014 [and] Quarantine Charges (Imposition—Excise) Bill 2014 [and] Quarantine Charges (Imposition—Customs) Bill 2014 Rob Dossor Economics Section

Paula Pyburne Law and Bills Digest Section

Contents

Purpose of the Bills .............................................................. 3

Structure of the Bills ............................................................ 3

Background ......................................................................... 3

Reviews of the quarantine and biosecurity arrangements ..... 3

What is risk-based regulation? ................................................ 5

Developments since moving to a risk based system ............. 5

Cost-recovery arrangements ................................................... 6

Committee consideration .................................................... 6

Senate Selection of Bills Committee........................................ 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Parliamentary Joint Committee on Human Rights .................. 6

Statement of Compatibility with Human Rights .................... 6

Financial implications .......................................................... 7

Key issues and provisions—Collection Bill............................. 7

Part 1—preliminary ................................................................. 7

Part 2—paying quarantine charges ......................................... 7

Part 3—unpaid quarantine charges......................................... 7

Deterrent action .................................................................... 7

Recovery action ..................................................................... 7

Date introduced: 6 March 2014

House: House of Representatives

Portfolio: Agriculture

Commencement: Various dates as set out in the body of this Bills Digest.

Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the Quarantine Charges (Collection) Bill 2014, the Quarantine Charges (Imposition—General) Bill 2014, the Quarantine Charges (Imposition—Excise) Bill 2014 and the Quarantine Charges (Imposition—Customs) Bill 2014, or through http://www.aph.gov.au/Parliamentary_Business/Bills_ Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

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Creation of a charge on goods .............................................. 8

Creation of a charge on a vessel............................................ 9

Part 4—power to sell goods and vessels ................................. 9

Part 5—abandoned and forfeited goods ............................... 10

Key issue—detention of ships ............................................. 10

Other provisions .................................................................... 11

Key issues and provisions—Charges Imposition Bills ........... 11

Imposition of charges ............................................................ 11

Amount of charges ................................................................ 11

Liability to pay charges .......................................................... 12

Regulation making ................................................................. 12

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Purpose of the Bills The purpose of the four Bills in the package of Bills is to update the framework which governs the setting of charges for indirect biosecurity quarantine services, including investigative and surveillance services.

The Quarantine Charges (Collection) Bill 2014 (the Collection Bill)1 provides for the collection of quarantine charges and late payment fees. The quarantine charges are imposed by the other Bills in the legislative package, being:

• Quarantine Charges (Imposition—General) Bill 2014 (General Bill)2

• Quarantine Charges (Imposition—Customs) Bill 2014 (Customs Bill)3 and

• Quarantine Charges (Imposition—Excise) Bill 2014 (Excise Bill).4

Structure of the Bills The Collection Bill contains six parts. Significantly:

• Part 2 deals with paying quarantine charges

• Part 3 deals with unpaid quarantine charges, including the application of late payment fees and the recovery of unpaid quarantine charges or late payment fees

• Part 4 provides a power to sell goods and vessels

• Part 5 deals with abandoned and forfeited goods and vessels and

• Part 6 deals with miscellaneous matters such as remits and refunds.

The General Bill, the Customs Bill and the Excise Bill each contain four parts, relevantly:

• Part 2 deals with the imposition of the charges and the manner in which the relevant amount will be set and

• Part 3 deals with validation matters.

Background Reviews of the quarantine and biosecurity arrangements Australia’s quarantine is predominantly managed by the Commonwealth, through the Department of Agriculture (the Department). Prior to 2012, it was managed by the Australian Quarantine and Inspection Services (an area within the Department with a trading name of AQIS).5 In 2008 a major review of Australia’s quarantine and biosecurity arrangements was conducted. This review resulted in the report One Biosecurity: A Working Partnership (the Beale Review).6 The Beale Review, among other things, recommended that Australia implement a risk based approach to quarantine management.

Prior to the Beale Review, the Commonwealth had generally taken responsibility for border and pre-border (Australian territorial waters, prior to goods arriving at the border) quarantine activities. Post-border activities (involving such tasks as monitoring biosecurity and responding to outbreaks) were generally understood to be the responsibility of the states and territories.7 While reviews had recommended that Australia implement a risk based quarantine approach since the 1997 report, Australian Quarantine: a Shared Responsibility (the Nairn Report),8 no such approach was enacted until after the release of the Beale Review in 2008.

1. Parliament of Australia, ‘Quarantine Charges (Collection) Bill 2014 homepage’, Australian Parliament website, accessed 18 March 2014. 2. Parliament of Australia, ‘Quarantine Charges (Imposition—General) Bill 2014 homepage’, Australian Parliament website, accessed 13 March 2014. 3. Parliament of Australia, ‘Quarantine Charges (Imposition—Customs) Bill 2014 homepage’, Australian Parliament website, accessed 13 March

2014.

4. Parliament of Australia, ‘Quarantine Charges (Imposition—Excise) Bill 2014 homepage’, Australian Parliament website, accessed 13 March 2014. 5. Advice provided to the Parliamentary Library from the Department. 6. Beale, Fairbrother, Inglis and Trebeck, One biosecurity: a working partnership, 30 September 2008, accessed 18 March 2014. 7. Ibid., p. 8. 8. M Nairn et al, Australian quarantine: a shared responsibility, Department of Primary Industries and Energy, Canberra, 1996, accessed 18 March

2014.

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In 2001, rather than progressing to a risk based approach as recommended by the Nairn Report, border inspection targets were mandated and implemented, primarily as a reaction to a sense of crisis engendered by the United Kingdom foot and mouth disease outbreak.9 These targets included a requirement for 81 per cent of all arriving passengers to have their baggage physically inspected, x-rayed, or screened by detector dogs at peak arrival times and 100 per cent at non-peak times, regardless of the country of origin or its pest or disease status.10 (See Table 3 below for the actual mandated targets from 2001 to 2008).

Source: Beale, Fairbrother, Inglis and Trebeck, One biosecurity: a working partnership, September 2008, p. 136, accessed 18 March 2014.

In December 2008 the Government released a preliminary response to the Beale Review. It accepted all 84 recommendations in principle, subject to budget constraints.11 As part of this response, a reform agenda was commenced, which would, among other things:

• move to a risk-based approach for biosecurity12 supported by intelligence, analysis, risk profiling, operational changes and feedback capabilities

9. Beale, Fairbrother, Inglis and Trebeck, One biosecurity: a working partnership, op. cit., p. 135. 10. Ibid. 11. Australian Government, Review of Australia’s quarantine and biosecurity arrangements - preliminary Commonwealth Government response, 18 December 2008, accessed 19 March 2014.

12. The Beale Review moved to use of the term ‘biosecurity’, rather than the more narrow term ‘quarantine’, ‘as quarantine, in a Constitutional sense, is restricted to the consideration of disease and disease agents, with an emphasis on containment and exclusion. The narrow definition of quarantine does not include pests and weeds which are not disease vectors, but are nevertheless capable of causing great economic or

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• increase the management of risks offshore and

• enhance audit and verification activities.13

While the reforms were being implemented, in 2012 the Senate Standing Committee on Rural and Regional Affairs and Transport conducted an inquiry examining Australia’s biosecurity and quarantine arrangements. The Committee recommended that higher priority be given to the funding and implementation of the reforms, as well as:

[Agreeing], in principle, to [the Department] pursuing a more risk-based approach to biosecurity. However, the committee also believes that it is vital that the appropriate level of resources continue to be allocated to maintain assurances on what the Department describes as ‘lower-risk items and pathways’. 14

What is risk-based regulation? Julia Black and Robert Baldwin describe the basic framework of risk based regulation:

[Risk-based frameworks] have a common starting point, which is a focus on risks not rules. Risk based frameworks require regulators to begin by identifying the risks they are seeking to manage, not the rules they have to enforce. Regulators are usually overburdened by rules. They cannot enforce every one of these rules in every firm at every point in time. Selections have to be made. These selections have always been made, but risk-based frameworks both render the fact of selection explicit and provide a framework of analysis in which they can be made.

15

Black and Baldwin regard risk based regulation in particular scenarios as appropriate:

Risk-based strategies are best solutions to [risk based] problems of complexity and some components of uncertainty, for example, variations among individuals. If the two most important risk criteria, probability of occurrence and extent of damage, are relatively well known and little uncertainty is left, the traditional risk-based approach seems reasonable.

16

Developments since moving to a risk based system To fully implement the remaining themes of the Beale Review reforms,17 new legislation was necessary which would update and replace the Quarantine Act 1908.18 In November 2012 the Biosecurity Bill 201219 and the Inspector-General of Biosecurity Bill 201220 were introduced by the then Government.

Both Bills were referred to the Senate Standing Committee on Rural and Regional Affairs and Transport (Legislation Committee) for reporting by 27 February 2013. In February 2013 the Committee requested an extension, due to the large amount of public interest in the Bills. This extension was granted, for reporting by 27 November 2013.21

Both Bills lapsed, however, before the Senate Committee had completed its report, when Parliament was prorogued in 2013. Senate Committees can continue to run after parliament is prorogued, however this

environmental damage’. The authors of the Beale Review, defined biosecurity as ‘the protection of the economy, environment and human health from the negative impact associated with entry, establishment or spread of exotic pests (including weeds) and diseases’. One biosecurity: a working partnership, op. cit., p. 1. 13. Department of Agriculture, Fisheries and Forestry (DAFF), Reform of Australia’s biosecurity system: an update since the publication of one biosecurity: a working partnership, DAFF, March 2012, p. 2, accessed 20 March 2014. 14. Senate Standing Committee on Rural and Regional Affairs and Transport, Australia’s biosecurity and quarantine arrangements, The Senate, Canberra, April 2012, p. 20, accessed 18 March 2014. 15. J Black and R Baldwin, ‘Really responsive risk-based regulation’, Law and Policy, 32(2), April 2010, p. 184. 16. A Klinke and O Renn, ‘A new approach to risk evaluation and management: risk-based, precaution-based, and discourse-based strategies’, Risk Analysis, 22(6), 2002, p. 1091. 17. Explanatory Memorandum, Biosecurity Bill 2012 [2013], accessed 14 March 2014. 18. Quarantine Act 1908, accessed 14 March 2014. 19. Parliament of Australia, ‘Biosecurity Bill 2012 [2013] homepage’, Australian Parliament website, accessed 14 March 2014 20. Parliament of Australia, ‘Inspector-General of Biosecurity Bill 2012 homepage’, Australian Parliament website, accessed 14 March 2014. 21. Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the Biosecurity Bill 2012 [and] Inspector-General of Biosecurity Bill 2012, The Senate, Canberra, accessed 19 March 2014.

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committee instead concluded its inquiry without finalising its report.22 It is not clear why this report was not finalised considering the significant public interest the Bills generated.

Cost-recovery arrangements Currently cost-recovery arrangements for quarantine and biosecurity services are based on fee-for-service arrangements which were established in the early 1990s. These cost recovery arrangements have not kept pace with increasing demand for biosecurity services and changes to modern biosecurity operations.

Imported shipping containers have increased from 1.2 million in 2000 to more than 3 million in 2012-13, while low value air cargo (valued at or below $1000) increased from 7 million in 2007-08 to 25.1 million in 2012-13.23 A risk-based approach has been adopted to more effectively target and manage the biosecurity risks associated with these goods. This has shifted the emphasis from high rates of direct intervention to interventions informed by risk and intelligence assessments and the results of surveillance and audits. While an administrative move was taken to a risk-based approach the cost recovery arrangements were never updated to align with the new arrangements.

Cost recovery revenue collected under the Quarantine Service Fees Determination 2005 was $187.9 million in 2010-11, $195.2 million in 2011-12 and $191.8 million in 2012-13.24

The package of Bills provides a legislative basis for the cost recovery of services that support the risk-based approach to biosecurity. The legislation will sit alongside the existing fee-for-service cost recovery mechanism and is aimed at supporting Australia’s capacity to manage biosecurity risks into the future.25

Committee consideration Senate Selection of Bills Committee At its meeting of 6 March 2014 the Senate Selection of Bills Committee determined that the Bills in the legislative package not be referred to Committee for inquiry and report.26

Senate Standing Committee for the Scrutiny of Bills At the time of writing this Bills Digest, the Standing Committee for the Scrutiny of Bills had not commented on the Bills in the legislative package.

Parliamentary Joint Committee on Human Rights At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not commented on the Bills in the legislative package.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.27 Specifically, in relation to the Collection Bill, the Government considers that the Bill is compatible:

The Bill enables the Commonwealth to recover costs for the provision of key biosecurity and quarantine services which are vital to the promotion of the rights to health, life and to an adequate standard of living, including food and water, in the International Covenant on Economic, Social and Cultural Rights. To the extent that the Bill may also limit human rights, those limitations are reasonable, necessary and proportionate to achieve the legitimate objective of the Bill.

28

22. H Evans and R Laing, eds, Odgers' guide to Australian Senate practice, Thirteenth edn, The Senate, Canberra, May 2012, p. 138, accessed 20 March 2014. 23. Advice provided to the Parliamentary Library from the Department. 24. Ibid. 25. Ibid. 26. Selection of Bills Committee, Report No. 2 of 2014, The Senate, Canberra, 6 March 2014, accessed 13 March 2014. 27. The Statements of Compatibility with Human Rights can be found at pages 5-9 of the Explanatory Memorandum to the Quarantine Charges

(Collection) Bill 2014; and pages 5—7 of the Explanatory Memorandum to the General, Customs and Excise Bills. 28. Explanatory Memorandum, Quarantine Charges (Collection) Bill 2014, p. 9, accessed 19 March 2014.

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Financial implications According to the Explanatory Memoranda the Bills have no financial impact on the Commonwealth or industry. They do not set the amount of the charges and will not impose any financial impacts on businesses.29

Key issues and provisions—Collection Bill The Collection Bill commences on the day after Royal Assent.

Part 1—preliminary Clause 7 of the Bill contains relevant definitions. In particular, the term quarantine charge in this Bill is a reference to a charge that is imposed under each of the other Bills in the legislation package. In addition subclause 7(2) provides a link from the other expressions used in the Bill to the equivalent expression in the Quarantine Act 1908.30

Note that clause 41 of the Bill sets out the application of provisions of the Quarantine Act in relation to quarantine charges.

Part 2—paying quarantine charges Clause 10 of the Bill provides that regulations may be made in relation to paying quarantine charges. The regulations may:

• prescribe the time when a quarantine charge is due and payable and/or

• prescribe rules about the liability of an agent to pay charges on behalf of another person as well as rules about the recovery of those charges from the person by the agent.

Under clause 11 of the Bill, quarantine charges and late payment fees are notionally payable by the Commonwealth subject to written directions for that purpose being given by the Finance Minister.

Part 3—unpaid quarantine charges In addition to the regulations which may be made under clause 10 which are set out above, clause 13 provides that a regulation may also prescribe a late payment fee in respect of quarantine charges which have not been paid before the specified time.

When quarantine charges or late payment fees are due and payable, Part 3 of the Bill sets out a range of possible actions that may be taken.

Deterrent action The first action is that a Director of Quarantine may, by written notice to a person:

• suspend a permit,31 an approval,32 a compliance agreement or any other permit, authorisation or other permission, held by the person: subclause 14(2) or

• revoke a permit, approval, compliance agreement, authorisation or permission: subclause 14(3).

In addition, a Director of Quarantine may direct quarantine officers not to carry out specified activities or kinds of activities in relation to the person under the Quarantine Act until the charge or fee has been paid: subclause 14(5).

According to the Explanatory Memorandum, this will ‘encourage compliant behaviour in clients to ensure that quarantine charges are paid on time and that the Commonwealth recovers costs for services already provided’.33

Recovery action The second action is that the Commonwealth may take action in a court of competent jurisdiction to recover the amount of quarantine charges and late payment fees as a debt due to the Commonwealth: clause 15.

29. Explanatory Memorandum, Quarantine Charges (Imposition—General) Bill 2014 [and] Quarantine Charges (Imposition—Customs) Bill 2014 [and] Quarantine Charges (Imposition—Excise) Bill 2014, p. 4; Quarantine Charges (Collection) Bill 2014, p. 4, accessed 19 March 2014. 30. Quarantine Act 1908, accessed 14 March 2014. 31. Quarantine Act 1908, subsection 13(2AA) provides for granting a permit to introduce, import, bring or remove a thing. 32. Quarantine Act 1908, section 46A provides for giving an approval for goods subject to quarantine. 33. Explanatory Memorandum, Quarantine Charges (Collection) Bill 2014, op. cit., p. 12.

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Creation of a charge on goods The third action is that a charge may be created over goods or vessels that are subject to quarantine in order to secure payment of quarantine charges and/ or late payment fees which are due and payable by the owner of those goods.34 Importantly the charge may relate to goods other than those in respect of which the unpaid charges and fees apply.

Subclause 17(2) of the Bill states that subsection 73(2) of the Personal Property Securities Act 200935 applies to the charge. The effect of this provision is to give the Commonwealth a priority interest in the goods. This gives rise to two consequences. First, in the event that the Commonwealth and a mortgagor (who will hold a security interest in the goods), for example, are seeking to recover monies in respect of the same goods, the priority order for payment will be determined in accordance with the terms the Quarantine Charges (Collection) Act 2014 (when enacted) rather than under the provisions of the Personal Property Securities Act.36

The second consequence of a charge being created over goods is that a quarantine officer may withhold the goods.37 In that case the quarantine officer must give a written notice to the owner of the goods that the goods are withheld and may be sold if the charge or fee has not been paid by the end of the day specified in the notice being not earlier than 30 days after the day the notice is given.38

Where goods are withheld, subclause 18(5) of the Bill empowers the quarantine officer to give directions to a person to secure the goods, not to move, deal with or interfere with the goods or to move them to a specified place. A person who engages in conduct which contravenes such a direction commits a criminal offence. The maximum penalty for the offence is imprisonment for two years or 120 penalty units,39 or both.

An additional criminal offence with equivalent penalties arises under clause 19 if a direction (as above) has been given by a quarantine officer and the person moves, deals with or interferes with the goods with the following exceptions:

• the person is authorised to do so under section 46A of the Quarantine Act 1908 or a compliance agreement or

• the person needs to engage in that conduct to comply with a direction given under another provision of the Bill or the Quarantine Act by a quarantine official.

However the offence will not apply if the person is authorised to engage in the conduct outlined above. Importantly, the defendant bears an evidential burden in relation to the matter: clause 19 (see subsection 13.3(3) of the Criminal Code).40 This is based on the fact that these matters are peculiarly within the defendant’s knowledge.

Goods which are withheld under clause 18 will stop being withheld if they cease to be subject to any charge created under section 16 or if the quarantine officer thinks it is appropriate to release the goods. By way of example this may be ‘where the value of goods that have been withheld is not commensurate with the value of the debt, in circumstance of financial hardship or where it is against the Commonwealth’s interest to proceed’.41

34. Quarantine Act 1908, paragraph 4(1)(a) describes quarantine as including, but not limited to, measures for, or in relation to: (i) the examination, exclusion, detention, observation, segregation, isolation, protection, treatment and regulation of vessels, installations, human beings, animals, plants or other goods or things; or (ii) the seizure and destruction of animals, plants, or other goods or things; or (iii) the destruction of premises comprising buildings or other structures when treatment of these premises is not practicable.

35. Personal Property Securities Act 2009, accessed 14 March 2014. 36. According to subclause 17(3) of the Collection Bill the charge will remain in force until the outstanding the quarantine charge or late payment fee is paid, or the goods are sold in accordance with clause 29. 37. Section 5 of the Quarantine Act 1908 defines a quarantine officer as a person appointed under subsection 9(2), 9AA(3) or 9A(1) of that Act and,

to the extent that the Director of Quarantine has determined under section 66AZC that a person (or a person included in a specified class of persons) has functions and/or powers of a quarantine officer under that Act, includes such a person. 38. Subclause 18(2) of the Bill. 39. Under section 4AA of the Crimes Act 1914, a penalty unit is equivalent to $170. This means that the penalty is $20,400. 40. Criminal Code Act 1995, accessed 18 March 2014. Subsection 13.3(3) provides that ‘a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence’. 41. Explanatory Memorandum, Quarantine Charges (Collection) Bill 2014, op. cit., p. 15.

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Goods which are subject to a charge because a quarantine charge or a late payment fee has not been paid and are withheld may be sold.42

Creation of a charge on a vessel Clauses 22—26 operate in a similar way to clauses 16-20 of the Bill in respect of vessels—that is:

• a charge may be created over a vessel which is subject to quarantine in order to secure payment of quarantine charges and/ or late payment fees which are due and payable by the owner or operator of the vessel: clause 22

• subsection 73(2) of the Personal Property Securities Act applies to the charge and the charge has priority over any other interest in the vessel: subclauses 23(1) and (2)43

• a Director of Quarantine may detain a vessel which is subject to such a such charge if the vessel is in the Australian territory44—subject to the giving of notices to the owner and operator of the vessel that the vessel may be sold if the charge or fee has not been paid by the end of the specified day which is not earlier than 30 days after the day the notice is given: subclause 24(2)

• where a vessel is detained a Director of Quarantine may give directions to the person in charge of the vessel in relation to the movement of the vessel, requiring the vessel to be left at a specified place or in a specified manner or requiring goods which are on the vessel to be unloaded at a specified place in a specified manner: subclause 24(4) and

• a person who engages in conduct which contravenes such a direction commits a criminal offence. The maximum penalty for the offence is imprisonment for two years or 120 penalty units, or both: subclause 24(6).

In addition, a person commits a criminal offence if the person deals with or interferes with the vessel which is subject to a direction by a Director of Quarantine and the person is not otherwise authorised under the Quarantine Act or the Bill to do so: clause 25.

Vessels which are subject to a charge because a quarantine charge or a late payment fee has not been paid and consequently are detained may be sold.45 In that case, a Director of Quarantine may cause any goods on board the vessel to be unloaded from the vessel before it is sold: subclause 27(4).

Part 4—power to sell goods and vessels Clause 29 of the Bill applies to:

• the sale of withheld goods (under clause 21) and abandoned goods (under subclause 32(3)) and

• the sale of a detained vessel (under clause 27) and abandoned vessels (under subclause 34(3)).

Subclause 29(2) authorises a Director of Quarantine to sell the thing (that is, goods or a vessel) and to give full and effective title of it free of all other interests, which are extinguished at the time title is given.

Subclauses 30(1) and (2) set out the order in which a Director of Quarantine may apply the proceeds of sale, that is:

• if the thing that has been sold was subject to a charge or charges under clauses 16 or 22 because quarantine charges or late payment fees have not been paid—the quarantine charges or fees

• any other quarantine charge or late payment fee, or any other fee under the Quarantine Act, that is due and payable by the owner of the thing that has been sold and

• the remainder of the proceeds, if any, to the owner of the thing.46

42. Clause 29 of the Collection Bill provides authority for a Director of Quarantine to sell goods. 43. According to subclause 23(3) of the Collection Bill the charge will remain in force until the outstanding the quarantine charge or late payment fee is paid, or the vessel is sold in accordance with clause 29. 44. Clause 8 of the Collection Bill defines the Australian territory as being: (a) Australia, the territory of Christmas Island, the territory of Cocos

(Keeling) Islands and any external territory to which that provision extends; and (b) the airspace over an area covered by paragraph (a); and (c) the coastal sea of Australia, of the territory of Christmas Island, of the territory of Cocos (Keeling) Islands and of any other external territory to which that provision extends. 45. Clause 29 of the Collection Bill provides authority for a Director of Quarantine to sell vessels.

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Part 5—abandoned and forfeited goods Clauses 32 and 33 deal with abandoned and forfeited goods respectively.

Abandoned goods are those which are or have been subject to quarantine are in the possession or control of the Commonwealth and the owner of the goods gives notice (either in writing or orally) to a Director of Quarantine stating that the owner does not wish to take possession of the goods. This applies whether or not the owner of the goods is liable to pay, or has paid a quarantine charge or late payment fee.

In those circumstances a quarantine officer may request the owner to arrange for the goods to be dealt with, or destroyed. The request must be in writing, and specify the time and the manner in which the goods are to be dealt with or destroyed: subclause 32(2). If the owner of the goods fails to take the required act, a Director of Quarantine may take possession of the goods and cause them to be sold, destroyed or otherwise disposed of: subclause 32(3).

Clause 33 relates to goods for which a quarantine charge and/ or late payment fee is due and payable (or has been paid); which are, or have been, subject to quarantine; and are in the possession or control of the Commonwealth. Those goods are forfeited to the Commonwealth if either of the following applies:

• a Director of Quarantine notifies, in writing, the owner of the goods that the goods may be collected and the goods are not collected within 90 days after the notice is given: paragraph 33(2)(a) or

• a Director of Quarantine has not been able, despite making reasonable efforts, to locate the owner of the goods and has certified in writing to that effect: paragraph 33(2)(b).

In either case the goods are forfeited to the Commonwealth and may be sold, destroyed or otherwise disposed of: subclause 33(3).

Clauses 34 and 35 are in equivalent terms to clauses 32 and 33 but refer instead to abandoned and forfeited vessels respectively.

Key issue—detention of ships Sections 48 and 48AA of the Quarantine Act currently provide for the detention and forfeiture of goods which cannot be effectively treated for quarantine purposes. In addition, section 48A of the Quarantine Act provides for abandoned goods to be forfeited to the Commonwealth and then destroyed, sold or otherwise disposed of. Section 75A of the Quarantine Act provides for vessels that have been involved in certain offences to be forfeited to the Commonwealth.

In each of the provisions cited above, the actions to detain goods and for goods or vessels to be forfeited to the Commonwealth arise from the quarantine itself—not from the cost of quarantine. In that respect the Collection Bill contains powers which are not currently present in the Quarantine Act.

Notably, the Biosecurity Bill 201247 which was introduced into the House of Representatives by the former Government on 28 November 2012, but was not enacted, contained similar provisions to those in the Collection Bill.48 That is, a fee could be levied in relation to a conveyance (including a vessel), a charge would be a priority interest under the Personal Property Securities Act and a Director of Biosecurity could detain the vessel where a fee had not been paid. Where the fee was not paid, the vessel could be sold.

In respect of those provisions, Shipping Australia expressed the following view to the Rural and Regional Affairs Committee:

46. However under subclause 30(3) the remainder is forfeited to the Commonwealth after 30 days if a Director of Quarantine is unable to locate the owner despite making reasonable efforts and has certified to that effect in writing. 47. Parliament of Australia, ‘Biosecurity Bill 2012 [2013] homepage’, op. cit. 48. Clause 639-645, Biosecurity Bill 2012.

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… that such powers are draconian, certainly in circumstance which are not likely to involve very large sums of money, at least relative to the value of the ships involved. For example, a $10,000 fee may be unpaid and the Bill provides for the sale of a vessel worth $50-$80 million. 49

In addition, Shipping Australia suggested that such a provision may well contradict those provisions of the Admiralty Act 198850 which relate to the detention of ships. In that case it would be for the courts to determine which provisions would prevail.

Other provisions Clause 38 provides the Minister with the discretion to remit or refund the whole or part of a quarantine charge or a late payment fee in circumstances where the Minister is satisfied that there are exceptional circumstances that justify doing so. According to the Explanatory Memorandum ‘this may be done at the Minister’s initiative or on written application by a person’.51

Clause 39 also sets out a range of measures available to the Commonwealth to arrange for, or require, sustenance to be provided for an animal or plant which is, or has been subject to quarantine and is in the possession or control of the Commonwealth.

Clause 45 provides that the Governor-General may make regulations prescribing matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Key issues and provisions—Charges Imposition Bills Sections 1 and 2 of the General Bill, the Customs Bill and the Excise Bill commence on Royal Assent.

The remaining sections of each of those Bill commence on the later of the day after Royal Assent and the commencement of section 3 of the Quarantine Charges (Collection) Act 2014.

However, none of those provisions commence at all if section 3 of the Quarantine Charges (Collection) Act 2014 does not commence.

Clause 5 of both the General Bill and the Customs Bill gives extraterritorial application to the provisions of the Quarantine Charges (Imposition—General) Act 2014 (when enacted) and the Quarantine Charges (Imposition— Customs) Act 2014 (when enacted). This is so that charges are able to be imposed ‘on persons wishing to import goods into Australia who are located overseas’.52

Imposition of charges The General Bill,53 the Customs Bill54 and the Excise Bill55 each provide that a regulation may prescribe a charge in relation to a matter connected with the administration of the Quarantine Act. In each case, the charge is imposed as a tax. Each of the Bills specifies that the charge is imposed in accordance with section 55 of the Constitution, which provides that laws imposing taxation must deal only with one subject of taxation and must not deal with any other matter. Section 55 further provides that laws imposing duties of customs or excise may only deal with those particularly duties.56 It is because of the requirements of section 55 of the Constitution that three separate Bills are required.

Amount of charges Importantly, the General Bill,57 the Customs Bill58 and the Excise Bill59 provide that a regulation may prescribe the amount of each of the relevant charges imposed by the Bills or specify the method for calculating that

49. Shipping Australia, Submission to the Senate Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2012 [and] Inspector-General of Biosecurity Bill 2012, 19 December 2012, accessed 18 March 2014. 50. Admiralty Act 1988 accessed 18 March 2014. 51. Explanatory Memorandum, Quarantine Charges (Collection) Bill 2014, op. cit., p. 23. 52. Explanatory Memorandum to the Customs, General and Excise Bills, op. cit., pp. 8 and 12. 53. Clause 7 of the General Bill. 54. Clause 7 of the Customs Bill. 55. Clause 6 of the Excise Bill. 56. Commonwealth of Australia Constitution Act, accessed 18 March 2014. 57. Clause 8 of the General Bill.

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charge. As stated above, the Scrutiny of Bills Committee had not, at the time of writing this Bills Digest, published any comments in relation to the Bills in the legislative package. However, it does generally make reference to circumstances where the amount of a tax is set out in regulations on the grounds that it is for Parliament, rather than the makers of subordinate legislation, to set a rate of tax.

It should be noted though that the General Bill,60 the Customs Bill61 and the Excise Bill62 each provide that the amount of the relevant charge is to be set at a level that is designed to recover no more than the Commonwealth’s likely costs in connection with the matter.

Liability to pay charges Each of the Bills provides that regulations may prescribe those persons who are liable to pay the charge imposed by that Bill.63

The General Bill imposes charges to enable the cost recovery of activities that provide general benefits to importers. The Customs Bill and the Excise Bill impose charges that are considered a duty of customs and excise respectively.

Each of the Bills provides that regulations may provide for exemptions from the charges set by each of the Bills.64

Regulation making The Bills make extensive provisions for the creation of regulations which are governed by the Legislative Instruments Act 2003.65 A legislative instrument is subject to disallowance if either a Senator or Member of the House of Representatives moves a motion of disallowance within 15 sitting days of the day that the legislative instrument is tabled. The motion to disallow must be resolved or withdrawn within a further 15 sitting days of the day that the notice of motion is given.66 However, it should be noted that if there is no notice of motion to disallow a legislative instrument, then there is no debate about its contents.

58. Clause 8 of the Customs Bill. 59. Clause 7 of the Excise Bill. 60. Subclause 8(2) of the General Bill. 61. Subclause 8(2) of the Customs Bill. 62. Subclause 7(2) of the Excise Bill. 63. Clause 9 of the General Bill, clause 9 of the Customs Bill and clause 8 of the Excise Bill. 64. Clause 10 of the General Bill, clause 10 of the Customs Bill and clause 9 of the Excise Bill. 65. Legislative Instruments Act 2003, accessed 18 March 2014. 66. Section 42 of the Legislative Instruments Act.

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