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Quarantine Charges (Collection) Bill 2014

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2013-2014

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

QUARANTINE CHARGES (COLLECTION) BILL 2014

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Agriculture, the Hon. Barnaby Joyce MP)

QUARANTINE CHARGES (COLLECTION) BILL 2014

 

General Outline

The Quarantine Charges (Collection) Bill 2014 forms part of a legislative package to re-align Australia’s biosecurity and quarantine imports system with an efficient and effective cost-recovery model which is consistent with the Australian Government Cost-Recovery Guidelines .

 

The Quarantine Charges (Collection) Bill 2014 provides authority to collect charges imposed under the Quarantine Charges (Imposition-General) Bill 2014, the Quarantine Charges (Imposition-Excise) Bill 2014 and the Quarantine Charges (Imposition-Customs) Bill 2014 (the Imposition Bills).

 

Biosecurity is currently managed under the Quarantine Act 1908 and related delegated legislation. Biosecurity refers to the management of the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries and population expansion all contribute to the complexity of the modern biosecurity environment.

 

Historically, the Department of Agriculture's approach to biosecurity management—under the Quarantine Act—has relied on mandatory border intervention targets for specific imports. This approach did not take into account the varying levels of risk posed by different passengers, goods, import businesses or incursions, or where intervention would be most effective (offshore, onshore or at the border).

 

In recent years, the department has shifted to a risk-based approach to biosecurity management, informed by scientific analysis, intelligence and surveillance that enables higher risk goods, passengers and mail to be targeted for intervention. This has allowed the department to develop world’s best biosecurity practice and better manage the increasing volumes of trade and passengers across the Australian border. The risk-based approach allows the department to more effectively target its regulatory efforts without compromising biosecurity risk outcomes. It reduces the cost of delivering frontline services and saves time and money for importing businesses with flow-on benefits to the broader economy.

 

The risk-based approach reduces the administrative burden on compliant clients, enabling faster clearance at the border through better targeting and focus on higher risk goods. The risk-based approach allows the free movement of goods, where risk is low, and cuts the costs for clients who actively and conscientiously take account of biosecurity risks. While the department has adopted this operating model, cost-recovery arrangements under existing legislation have been unable to provide sufficient support.

 

The department currently recovers the costs of its key biosecurity services (for example, scientific analysis, intelligence and surveillance, which are key elements of the risk-based approach) through three fees (items 2, 3 and 5) of the Quarantine Service Fees Determination 2005 (the Determination), made under section 86E of the Quarantine Act.

This legislative package will create an appropriate legal structure for the recovery of costs associated with the indirect biosecurity services undertaken by the department for the benefit of importers. The legislation will sit alongside the existing fee-for-service cost-recovery mechanism and support Australia’s capacity to manage biosecurity risks into the future.

 

The Australian Government Cost Recovery Guidelines state that agencies should set charges to recover all the costs of products or services that they provide. These charges should reflect the costs of providing the service and should generally be imposed on a fee-for-service basis or, where efficient, as a levy. This Bill forms part of a legislative package which is designed purely as a cost-recovery mechanism.

 

The primary and delegated legislation have been drafted to be consistent with Australia’s international trade obligations.

 

Quarantine Charges (Collection) Bill 2014

 

The Quarantine Charges (Collection) Bill 2014 provides authority to collect charges imposed under the Quarantine Charges (Imposition-General) Bill 2014, the Quarantine Charges (Imposition-Excise) Bill 2014 and the Quarantine Charges (Imposition-Customs) Bill 2014.

 

The Bill provides that the regulations will determine the manner in which the quarantine charges are to be paid. This includes the time when a specified quarantine charge is to be paid, the liability of a person’s agent to pay charges on that person’s behalf and the establishment of appropriate late payment fees where charges are not paid in the time prescribed. Providing for such matters in the regulations will allow the Minister for Agriculture to make appropriate and timely adjustments to the charges. Unpaid charges and late payment fees will be considered as debts to the Commonwealth and may be recovered by action in a relevant court.

 

The Bill also provides the Commonwealth with powers to refuse service in relation to a person who is liable to pay a charge or late payment fee. Such services include the suspension and revocation of import permits.

 

The Bill further provides that the Commonwealth will have enforcement powers to deal with goods and vessels to recover unpaid charges and late payment fees. In doing so the Commonwealth may create a charge on a good or vessel and withhold goods that are subject to a charge.

 

Quarantine officers will also be given the power to provide appropriate directions in relation to such goods and vessels. If a person engages in conduct that contravenes a direction, the person will be considered to have committed an offence and may be imprisoned, fined or both.

 

The Commonwealth will have the power to sell goods and vessels to recover outstanding debts. However, this power would only be used in exceptional circumstances and would be commensurate to the level of the debt.

 

The Bill further provides the Commonwealth with powers to deal with goods or vessels that are abandoned or forfeited. Such powers include the ability to take possession, cause them to be sold, destroyed or otherwise disposed of.

 

The Bill sets out provisions for the remitting or refunding of charges or late payment fees if there are exceptional circumstances.

 

The Bill includes a link to provisions of the Quarantine Act where it is appropriate for consistency of operation and effective concurrent operation between this Act and the Quarantine Act. As fees for biosecurity services are collected under the Quarantine Act and charges for indirect biosecurity services are collected under this Act, it is appropriate that certain elements of the Quarantine Act apply to provide consistency.

 

Financial Impact Statement

The Bill has no financial impact on the Commonwealth or industry. The Bill does not set the amount of the charges and will not impose any financial impacts on businesses.

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Quarantine Charges (Collection) Bill 2014

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Quarantine Charges (Collection) Bill 2014 (the Bill) forms part of a legislative package to re-align Australia’s biosecurity and quarantine imports system with an efficient and cost-effective cost-recovery model that allows for the collection of costs of biosecurity services through a levy mechanism consistent with the Australian Government Cost Recovery Guidelines .

The Bill provides authority to collect charges imposed under the Quarantine Charges (Imposition-General) Bill 2014, the Quarantine Charges (Imposition-Customs) Bill 2014 and the Quarantine Charges (Imposition-Excise) Bill 2014 and will enable the Commonwealth to recover costs for the provision of key biosecurity and quarantine services. The provision of these services ensures goods and vessels can move safely into Australian territory and is 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 .

 

The Bill provides that the regulations will determine the manner in which the quarantine charges are to be paid. Unpaid charges and late payment fees will be considered as debts to the Commonwealth and may be recovered by action in a relevant court. The Bill also provides the Commonwealth with powers to refuse service in relation to a person who is liable to pay a charge or late payment fee.

 

The Bill further provides that the Commonwealth will have enforcement powers to deal with goods and vessels to recover unpaid charges and late payment fees. In doing so, the Commonwealth may create a charge on a good or vessel and withhold goods that are subject to a charge. Quarantine officers will also be given the power to provide appropriate directions in relation to such goods and vessels. If a person engages in conduct that contravenes a direction, the Bill creates an offence punishable by imprisonment or a fine or both.

 

Under the Bill the Commonwealth will have the power to sell goods and vessels to recover outstanding debts. However, this power would only be used in exceptional circumstances. The Bill further provides the Commonwealth with powers to deal with goods or vessels that are abandoned or forfeited. Such powers include the ability to take possession, cause them to be sold, destroyed or otherwise disposed of.

 

The Bill sets out provisions for the remitting or refunding of charges or late payment fees if there are exceptional circumstances.

 

The Bill applies a range of provisions of the Quarantine Act 1908 (Quarantine Act), including enforcement provisions under that Act, for consistency of operation between this Bill and the Quarantine Act. It is not appropriate for different provisions and powers to apply between this Act and the Quarantine Act.

 

Human rights implications

List of rights engaged:

·          Article 17 of the ICCPR - right to protection from arbitrary and unlawful interferences with privacy

·          Article 12 of the ICCPR - right to freedom of movement

·          Article 9 of the ICCPR - right to security of the person and freedom from arbitrary detention

·          Articles 6(1) and 7 of the ICESCR - Right to work and rights in work

 

Right to protection from arbitrary and unlawful interference with privacy

 

Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an individual’s privacy. This right may be subject to permissible limitations where those limitations are provided by law and are not arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to achieving this purpose.

 

Part VIA of the Quarantine Act (Enforcement) applies by reference in the Collection Bill. The operation of this Part under the Bill protects the ability of the Commonwealth to collect quarantine charges when they are due and payable. For example, monitoring and enforcement provisions under the Quarantine Act are included in the Collection Bill to ensure a consistency of approach with regards to the monitoring and enforcement of directions given under the Collection Bill and the Quarantine Act. The inclusion of these enforcement provisions may engage Article 17 of the ICCPR. To ensure the proper use of these provisions, the exercise of these powers would only be available to officers with the appropriate training, expertise and authority. This would enable officers to make informed decisions about the use of these enforcement provisions. Many of the powers under this Part also have a test of reasonableness built into them. The operation of this test ensures that the exercise of powers under this Part would only occur when a quarantine officer believes it is reasonable to do so. Further, enforcement provisions under the Bill are required to be exercised in compliance with the Privacy Act 1988 . This means that the protections on the use and storage of personal information that exist under that Act would apply to the collection and use of personal information collected under the Collection Bill.

 

  Right to freedom of movement

 

The right to freedom of movement under Article 12 of the ICCPR includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right may be restricted in certain circumstances, including where the restriction is justified in order to protect national security, public order, public health or morals or the rights and freedoms of others. The restriction must be necessary and proportionate to protect the purpose for which it is imposed, and should be as least intrusive as possible to achieve the desired result.  

 

Clause 24 the Collection Bill allows a Director of Quarantine to detain a vessel that is the subject of a charge. The operation of this clause may restrict the movement of individuals by detaining the vessel on which a person is relying on to move. This clause is necessary to enforce the Commonwealth’s capacity to recover costs for biosecurity and quarantine services that it has provided. The ability of the Commonwealth to recover the costs of providing these vital services is critical to its ongoing capacity to provide quarantine services and activities under the Quarantine Act. Any limitation to the right to freedom of movement under this clause is therefore proportionate to the potential risk posed to the Commonwealth’s ongoing capacity to provide biosecurity and quarantine services.

 

While Article 12 of the ICCPR may be engaged under this Bill in relation to the detention of vessels, it is anticipated that any detention of vessels under the Bill would only occur on very rare occasions and that the detention of non-commercial vessels would be extremely rare. It is therefore highly unlikely that clause 24 of the Bill would affect individuals. Clause 24 of the Bill would only be applied when it is in the Commonwealth’s interests to do so and to protect the Commonwealth’s ongoing capacity to provide quarantine services and activities under the Quarantine Act.

 

In the context of enforcement, Part VIA of the Quarantine Act (Enforcement) applies by reference in the Collection Bill. The operation of these enforcement provisions may potentially engage Article 12 of the ICCPR in circumstances where a vessel that is the subject of a charge is required to be detained (clause 24). As discussed previously in relation to monitoring and enforcement provisions under the Bill, the powers under these provisions would only be available to officers with the appropriate training, expertise and skills that would enable them to make informed decisions. Many of the powers under this Part also have a test of reasonableness built into them. The operation of this test ensures that the exercise of powers under this Part would only occur when it is reasonable to do so.

 

Right to security of the person and freedom from arbitrary detention

 

Article 9 of the ICCPR recognises the right of all individuals to liberty and freedom from arbitrary detention.  The right to personal liberty requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty.

 

The right to security requires the country to provide reasonable measures to protect a person's physical security.

 

Certain provisions of the Collection Bill impose penalties when an offence in contravention of the Bill has been committed. In certain circumstances, these penalties include the potential for terms of imprisonment for up to 2 years to be imposed. Terms of imprisonment may be imposed in circumstances where a person fails to comply with a direction validly given in relation to goods or a vessel (clauses 18 and 24 respectively) and when an unauthorised person moves or interferes with withheld goods or a vessel without being directed to do so (clauses 19 and 25 respectively). The inclusion of these penalties is necessary to ensure deterrence for non-compliance with the Bill and to provide sanctions that appropriately penalise non-compliance. It should be noted that, other than in the circumstances mentioned above (in relation to clauses 18, 19, 24 and 25), there are no powers for a person to be detained in any circumstances under the Bill.

 

The penalties imposed under these clauses are proportionate to the potential financial liability that may be incurred by the Commonwealth in circumstances where these clauses become operative and are therefore permissible to ensure the proper operation of the Bill.

 

Right to work and rights in work

 

The right to work includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts. Rights in work include the enjoyment of just and favourable conditions of work.

 

Clause 14 of the Bill provides for the suspension or revocation of import permits or approvals to recover unpaid quarantine charges or fees. These penalties can only be imposed when a person is liable to pay a quarantine charge or late payment fee that is due and payable and cannot be imposed arbitrarily. The powers under this clause reflect the need for the Commonwealth to be able to cease providing services to clients when the costs associated with the provision of those services have not been paid. To ensure clients of the system are given sufficient warning about a potential suspension or revocation of a permit or approval, a Director of Quarantine is required to provide written notice that a charge or late payment fee is outstanding before invoking these powers.

 

Potential engagement with the right to work under this clause is reflective of the business-like arrangement between persons wishing to import goods and the Commonwealth, and allows the Commonwealth to cease providing services and activities when the user of those services or activities does not pay for them. The proportionate recovery of costs that are due and payable in relation to goods and vessels is a reasonable response to non-payment, even in circumstances where the right to work is engaged.

 

Similarly, any limitation on the right to work as a result of a seizure of goods or a vessel under the forfeiture or abandonment provisions of the Bill could only be imposed where quarantine charges or late payment fees are unpaid. Seizure of goods or vessels under these provisions would only be permitted to the extent of the charges or fees outstanding against those same goods or vessels. Any engagement with the right to work would therefore a proportionate and reasonable response to a failure to pay for services in relation to those goods or vessels.

 

 



 

Conclusion

 

The Quarantine Charges (Collection) Bill 2014 is compatible with Australia’s human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . 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.



 

Notes on clauses

 

Part 1—Preliminary

 

Clause 1          Short title

This clause provides that the Bill, when enacted, may be cited as the Quarantine Charges (Collection) Act 2014

 

Clause 2          Commencement

This clause provides for the Act to commence on the day after it receives Royal Assent.

 

Clause 3          Simplified outline of this Act

This clause provides a concise outline of the Act.

 

Clause 4          Act binds the Crown

This clause provides that the Act will bind the Crown in each of its capacities. This means that the Commonwealth and state and territory governments will be bound to comply with the provisions of the Act.

 

Clause 5          Extension to external Territories

This clause provides that the Act will extend to the territory of Christmas Island and the Cocos (Keeling) Islands. It also provides that the regulations to the Act may extend the Act or any of its provisions to any other external territory that is prescribed by the regulations.

 

This clause ensures that charges for the provision of indirect biosecurity services and the administration of the Quarantine Act can be imposed anywhere those services are provided including in the territory of Christmas Island and the Cocos (Keeling) Islands and any other external territory that is prescribed by the regulations.

 

Parliament will have the opportunity to scrutinise the extension of the Act to an external territory when the enabling regulations are tabled in each House of Parliament.

 

Clause 6          Extraterritorial application

This clause extends the operation of the Act beyond Australia’s territorial jurisdiction, ensuring that charges for the provision of indirect biosecurity services and the administration of the Quarantine Act can be imposed on persons and organisations located overseas. This clause is necessary to impose charges on persons wishing to import goods into Australia who are located overseas.

 

Clause 7          Definitions

This clause provides definitions for the Bill. Notes are provided below on each definition.

 

Australian territory

The definition provides that ‘Australian territory’ has the meaning given by clause 8.

 

 

Finance Minister

This definition provides the ‘Finance Minister’ is the Minister administering the Financial Management and Accountability Act 1997 .

 

late payment fee

This definition provides that a ‘late payment fee’ has the meaning given by subclause 13(1).

 

quarantine charge

This definition provides that a ‘quarantine charge’ has the meaning of a charge imposed under section 7 of the Quarantine Charges (Imposition - Customs) Act 2014 or Quarantine Charges (Imposition - General) Act 2014 or under section 6 of the Quarantine Charges (Imposition - Excise) Act 2014 .

 

vessel

This definition provides that a vessel also includes an installation and that ‘operator’ of a vessel has a corresponding meaning.

 

Subclause 7(2) further provides that other expressions used in this Act that are defined in the Quarantine Act have the same meaning stated in the Quarantine Act. This ensures that there is consistency in application and interpretation of terms between the two Acts.

 

Clause 8          Meaning of Australian Territory

This clause provides that a reference in a provision of this Bill to ‘Australian territory’ is defined to mean a reference to Australia, Christmas Island, the Cocos (Keeling) Islands and any external Territory to which that provision extends, and the airspace over these areas. It also refers to the coastal sea of Australia, of Christmas Island, of the Cocos (Keeling) Islands (and of any other external Territory to which that provision extends).

 

Part 2—Paying quarantine charges

 

Clause 9          Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 10        Paying quarantine charges

This clause provides that the regulations may prescribe the time when a quarantine charge is due and payable and prescribe the liability of agents to pay a quarantine charge.

 

Specifying such matters in regulations, as opposed to the Act itself, provides the department with sufficient flexibility to ensure that the time of payment and the liability of agents is appropriate in all circumstances.

 

This will also allow requirements under the Act to be amended as operational practices evolve.

 



 

Clause 11        Notional payments by the Commonwealth

This clause provides that the Commonwealth is notionally liable to pay fees prescribed in the regulations, including late payment fees. It empowers the Finance Minister to give written directions to give effect to this notional liability, including for the transfer of money between or within Commonwealth financial accounts.

 

The intent for this clause is that, under the Finance Minister’s direction, the department will have the legal authority to collect charges from agencies and other Commonwealth bodies for indirect biosecurity services performed under the Quarantine Act, and those bodies will have the legal authority to make payments to the department for such services.

 

Part 3—Unpaid quarantine charges

 

Division 1 - General

 

Clause 12        Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 13        Late payment fee

This clause allows the regulations to specify a late payment fee that is due and payable if a quarantine charge is not paid at or before the time the charge is due. A late payment fee may relate to each day or part day that the quarantine charge remains unpaid and may also be held against one or more persons who is liable to pay a quarantine charge.

 

Late payment fees will be used to encourage compliant behaviour in clients to ensure that quarantine charges are paid on time and that the Commonwealth recovers costs for services already provided.

 

Clause 14        Suspending or revoking permits etc. because of unpaid quarantine charges or late payment fees

This clause provides a Director of Quarantine (as defined under the Quarantine Act) with the power to suspend or revoke a number of approvals or authorisations made under the Quarantine Act when a person has not paid a quarantine charge or late payment fee which is due and payable. This clause does not limit any other power of a Director of Quarantine under the Quarantine Act to suspend or revoke the approvals or authorisations for any other reason.

 

This clause reflects the need for the Commonwealth to be able to cease providing services to clients when the costs associated with the provision of those services have not been paid. This clause will be used to encourage compliant behaviour in clients to ensure that quarantine charges are paid on time and that the Commonwealth recovers costs for services already provided.

 

To ensure clients are given sufficient warning about a potential suspension or revocation of a permit or license, a Director of Quarantine is required, under subclause 14(3), to provide written notice that a charge or late payment fee is outstanding before invoking these powers.

 

This clause also provides that a Director of Quarantine may direct quarantine officers to refuse service to the person, until the quarantine charges or late payment fees have been paid.

 

This clause does not provide merits review mechanisms for decisions made under subsections 2, 3 and 5. Judicial review is available to challenge any decisions made under this section. As the Quarantine Act currently does not have merit review mechanisms, it is not appropriate for fees charged under that Act and charges under the Imposition Acts to have different review mechanisms.

 

Clause 15        Recovery of quarantine charges and late payment fees

This clause provides the Commonwealth with the ability to recover any quarantine charges and late payment fees that are due and payable through action in a relevant court as a debt due to the Commonwealth.

 

The recovery of quarantine charges and late payment fees through a relevant court will ensure the Commonwealth can recover costs for services already provided.

 

Division 2 - Dealing with goods to recover unpaid quarantine charges or late payment fees

 

Clause 16        Creation of charge on goods

This clause outlines the circumstances in which a charge can be created over goods. A charge may be placed on goods where the owner of the goods has an unpaid quarantine charge or late payment fee under this Act which is due and payable. The unpaid quarantine charge or late payment fee may not necessarily relate to the goods on which the charge is placed.

 

The charge can only be placed on goods which are subject to quarantine and the charge will be used to secure payment of any quarantine charges or late payment fees from the owner of the goods.

 

The term subject to quarantine is a reference to a good being subject to measures (as outlined in subsection 4(1)(a)(i)) of the Quarantine Act for, or in relation to the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to humans, animals, plants, the environment or the economy.

 

The creation and effect of the charge (under clause 17) itself protects the Commonwealth’s right to be paid charges or fees to recover costs for indirect biosecurity services.

 

Clause 17        Effect of charge on goods

This clause outlines the effect of a charge on goods. It provides that a charge created under clause 16 has priority over any other interest in the goods, including a security interest within the meaning of the Personal Property Securities Act 2009 . This means that in the event the goods are sold, the charge created by clause 16 will take priority, allowing the Commonwealth to recover fees to the extent of the charge before any other interest.

 

This clause also provides that subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge. This means that priorities of interests in the goods are determined under this Act. Where there is an inconsistency in priorities created under both the Acts, this Act will prevail.

 

The charge will remain in force until the quarantine charge or late payment fee is paid, or the goods are sold under clause 29. The charge will not be affected by changes in the status of the goods, such as a change in ownership or the goods ceasing to be subject to quarantine.

 

Clause 18        Quarantine officer may withhold goods that are subject to charge

This clause allows a quarantine officer (as defined under section 5 of the Quarantine Act) to withhold goods which are subject to a quarantine charge created under clause 16 because a quarantine charge or late payment fee has not been paid.

 

This clause further outlines the notice requirements that a quarantine officer must take before withholding goods. A quarantine officer must, by written notice to the owner of the goods, state that the goods have been withheld and may be sold if the quarantine charge or late payment fee has not been paid within the period specified in the notice (which must be at least 30 days). A failure to give written notice does not affect the withholding of the goods or the ability of a quarantine officer to give a direction in relation to the goods.

 

This clause also provides quarantine officers with powers for the purpose of withholding the goods. These include refusing to release the goods from quarantine or to take possession of the goods. Additionally, in withholding the goods, the quarantine officer may give a direction relating to the movement of the goods to the person in charge of the goods. The direction may be to secure the goods in a specified manner, a direction to not move, deal or interfere with the goods, a direction to move the goods to a specified place or any other direction relating to the movement of the goods.

 

The maximum penalty for non-compliance with a direction given under this clause is imprisonment for 2 years or 120 penalty units or both.

 

The powers under this clause are necessary to ensure that a charge created under clause 16 can be enforced. Directions, penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence from non-compliance with a direction from a quarantine officer and the Act itself. These officers are provided with the appropriate training, expertise and authority that would enable them to make informed decisions in such circumstances. Judicial review of a direction is available to affected persons.

 

The penalties imposed under this clause are proportionate to the potential financial liability that may be incurred by the Commonwealth in circumstances where this clause is not complied with and is therefore permissible to ensure the proper operation of the Act. This penalty is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

 



 

Clause 19        Moving or interfering with withheld goods

This clause provides that a person must not move, deal or interfere with goods in relation to which a direction has been given under subclause 18(5), unless the person is authorised to do so under section 46A of the Quarantine Act or under a compliance agreement, he or she has been given a direction by a quarantine officer or permission under this Act, the Quarantine Act or is authorised under another Australian law.

 

To rely on this exception, the person bears the evidential burden, which means that he or she must adduce evidence which points to the fact that he or she was authorised to move, deal or interfere with the goods. It will then be up to the prosecution to establish that this exception does not apply. This shift in evidential burden is considered reasonable because it would be significantly more difficult for the prosecution to prove this element, since the relevant information is known particularly to the defendant.

 

The reversal of evidential burden in the above circumstances is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

 

A contravention of this clause may give rise to imprisonment for 2 years or 120 penalty units or both.

 

The inclusion of this penalty is necessary to ensure deterrence for non-compliance with the clause and to provide sanctions that appropriately penalise non-compliance.

 

The penalties imposed under this clause are proportionate to the potential financial liability that may be incurred by the Commonwealth in circumstances where this clause is not complied with and is therefore permissible to ensure the proper operation of the Bill. This penalty is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

 

Clause 20        When goods stop being withheld

This clause provides a quarantine officer with the power to stop withholding goods. A quarantine officer must stop withholding goods if the goods cease to be subject to any charge created under clause 16, for example, when all the fees are paid.

 

This clause also allows a quarantine officer to stop withholding goods in circumstances if the officer thinks it is appropriate. This broad power provides the Commonwealth with flexibility in its administration of the legislation. For example, where the value of goods that have been withheld is not commensurate with the value of the debt, in circumstances of financial hardship or where it is against the Commonwealth’s interest to proceed, the quarantine officer will have the power, where appropriate, to stop withholding the goods. Quarantine officers are provided with the appropriate training, expertise and authority that would enable them to make informed decisions in such circumstances.

 

This clause does not affect any other power exercised in relation to the goods under this Act or the Quarantine Act and does not require that the goods be released from quarantine and does not prevent the goods from being withheld again. This ensures that the goods can be appropriately dealt with under the Quarantine Act and may be dealt with under this Act multiple times if required.

 

Clause 21        Sale of withheld goods

This clause sets out the circumstances in which goods withheld under clause 18 can be sold.

 

A good can only be sold where the good has been withheld under clause 18, because a quarantine charge or late payment fee that is due and payable by the owner has not been paid.

 

This clause provides that withheld goods may be sold under clause 29 if a quarantine officer has given notice to the owner of the goods under clause 18, and the fee in relation to the goods has not been paid by the date specified in the notice.

 

If a quarantine officer has not been able to give notice to the owner, despite making reasonable efforts, and has certified in writing to this effect, the goods may be sold if the quarantine charge or late payment fee has not been paid within at least 30 days after the first attempt to give the notice.

 

This clause provides the Commonwealth with a mechanism to ensure that the owner of the goods is aware of what actions are being taken in relation to the goods via a subclause 18(2) notice, and provides the owner with the opportunity to make any outstanding payments.

 

If the owner of the goods chooses not to rectify the situation the clause provides that the goods may be sold by the Commonwealth to ensure that costs can be recovered for services rendered.

 

Division 3 - Dealing with a vessel to recover unpaid quarantine charges or late payment fees

 

Clause 22        Creation of charge on vessel

This clause outlines the circumstances in which a charge can be created on a vessel. A charge may be placed on a vessel where the owner or operator of a vessel has an unpaid quarantine charge or late payment fee under this Act which is due and payable. The unpaid quarantine charge or late payment fee may not necessarily relate to the vessel on which the charge is placed.

 

The charge can only be placed on vessels which are subject to quarantine and the charge will be used to secure payment of any quarantine charges or late payment fees from the owner or operator of the vessel.

 

The creation and effect of the charge (under clause 23) itself protects the Commonwealth’s right to be paid charges or fees to recover costs for indirect biosecurity services.

 

Clause 23        Effect of charge on vessel

This clause outlines the effect of a charge on a vessel. It provides that a charge created under clause 22 has priority over any other interest in the goods, including a security interest within the meaning of the Personal Property Securities Act 2009 . This means that in the event the goods are sold, the charge created by clause 22 will take priority, allowing the Commonwealth to recover fees to the extent of the charge before any other interest.

 

This clause also provides that subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge. This means that priorities of interests in the vessel are determined under this Act. Where there is an inconsistency in priorities created under both the Acts, this Act will prevail.

 

The charge will remain in force until the quarantine charge or late payment fee is paid, or the goods are sold under clause 29. The charge will not be affected by changes in the status of the vessel, such as a change in ownership or the vessel ceasing to be subject to quarantine.

 

Clause 24        Director of Quarantine may detain vessel that is subject to charge

This clause allows a Director of Quarantine to detain a vessel (in Australian territory) which is subject to a charge created under clause 22 because the owner or the operator of the vessel has unpaid quarantine charges or late payment fees. Only the vessel to which the charge relates may be detained under this clause.

 

This clause outlines the notice requirements that a Director of Quarantine must take before detaining the vessel. A Director must, by written notice to the owner and the operator of the vessel, state that the vessel has been detained, and if the owner is liable to pay the quarantine charge or late payment fee, that the vessel may be sold if the quarantine charge or late payment fee has not been paid within the specified period (which must be at least 30 days after notice is given). A failure to give written notice does not affect the detention of the vessel or the power to give a direction for the purposes of detaining the vessel.

 

This clause provides that in detaining a vessel a Director of Quarantine may give a direction relating to the movement of the vessel (including a direction to cause the vessel to stop) to the person in charge of the vessel. A Director of Quarantine may also give a direction requiring the vessel to be left at a specified place in a specified manner, or requiring goods on board the vessel to be unloaded at a specified place in a specified manner.

 

Directions, penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence from non-compliance with a direction from a Director of Quarantine and the Act itself. The power to detain a vessel rests with a Director of Quarantine (as opposed to a quarantine officer) to ensure that such a decision is taken with the full knowledge of the possible effect of the detention and would only be used in exceptional circumstances. Judicial review of a direction is available to affected persons.

 

A person commits an offence for contravention of a direction given under this clause. The maximum penalty for contravention is imprisonment for 2 years or a fine of 120 penalty units or both.

 

The inclusion of this penalty is necessary to ensure deterrence for non-compliance with the clause and to provide sanctions that appropriately penalise non-compliance.

 

The penalties imposed under this clause are proportionate to the potential financial liability that may be incurred by the Commonwealth in circumstances where this clause is not complied with and is therefore permissible to ensure the proper operation of the Act. This penalty is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

 

Clause 25        Moving or interfering with detained vessel

This clause provides that a person must not move, deal or interfere with a vessel in relation to which a direction has been given under subclause 24(4), unless the person is authorised to do so under section 46A of the Quarantine Act or under a compliance agreement, he or she has been given a direction by a quarantine officer or permission under this Act, the Quarantine Act or is authorised under another Australian law.

 

To rely on this exception, the person bears the evidential burden, which means that he or she must adduce evidence which points to the fact that he or she was authorised to move, deal or interfere with the vessel. It will then be up to the prosecution to establish that this exception does not apply. This shift in evidential burden is considered reasonable because it would be significantly more difficult for the prosecution to prove this element, since the relevant information is known particularly to the defendant.

 

The reversal of evidential burden in the above circumstances is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

 

A contravention of this clause may give rise to imprisonment for 2 years or 120 penalty units or both.

 

The inclusion of this penalty is necessary to ensure deterrence for non-compliance with the clause and to provide sanctions that appropriately penalise non-compliance.

 

The penalties imposed under this clause are proportionate to the potential financial liability that may be incurred by the Commonwealth in circumstances where this clause is not complied with and is therefore permissible to ensure the proper operation of the Bill. This penalty is consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

 

Clause 26        Release of detained vessel

This clause provides that a Director of Quarantine must release a vessel detained under clause 24 if the vessel ceases to be subject to a charge under clause 22, for example, when all the quarantine charges and late payment fees are paid.

 

This clause also allows a Director of Quarantine to release the vessel in circumstances a Director thinks are appropriate. This broad power provides that the Commonwealth with flexibility in its administration of the legislation. For example, where the value of a vessel that has been withheld is not commensurate with the value of the debt, in circumstances of financial hardship or where it is against the Commonwealth’s interest to proceed, a Director of Quarantine will have the power, where appropriate, to release the vessel.

 

Once a vessel is released all directions given under subclause 24(4) cease to have effect. Releasing a vessel under this clause does not constitute the vessel being released from quarantine under the Quarantine Act, or prevent the vessel from being detained again under clause 24. This ensures that the vessel can be appropriately dealt with under the Quarantine Act and may be dealt with under this Act multiple times if required.

 

Clause 27        Sale of detained vessel

This clause sets out the circumstances in which a Director of Quarantine can sell a detained vessel under clause 24.

 

A vessel can only be sold where the vessel has been detained under clause 24 because quarantine charges or late payment fees that are due and payable by the owner have not been paid. If the owner is also the operator, this clause also applies to unpaid quarantine charges or late payment fees of the operator.

 

This clause outlines that the owner of the vessel must be notified prior to any sale. The vessel may be sold if a Director of Quarantine has given notice to the owner of the vessel under clause 24, and the quarantine charges or late payment fees have not been paid within the specified period.

 

This clause also provides for a vessel to be sold where notice cannot be given to the owner of a vessel in line with clause 24. If a Director of Quarantine has not been able to give the notice to the owner, despite making reasonable efforts, and has certified this in writing, a Director of Quarantine may sell the vessel if the quarantine charge or late payment fee has not been paid within 30 days of first attempting to give the notice.

 

This clause provides the Commonwealth with a mechanism to ensure that the owner of the vessel is aware of what actions are being taken in relation to the vessel via a subclause 24(2) notice, and provides the owner with the opportunity to make any outstanding payments.

 

If the owner of the goods chooses not to rectify the situation the clause provides that the vessel may be sold by the Commonwealth to ensure that costs can be recovered for services rendered.

 

Prior to selling a vessel, a Director of Quarantine may cause any goods on the vessel to be unloaded before the vessel is sold. This ensures that the owners of the goods are not disadvantaged due to the actions of the owner of the vessel.

 

Part 4—Power to sell goods and vessels

 

Clause 28        Simplified outline of this Part

This clause provides a concise outline of the Part.

 



 

Clause 29        Sale of goods and vessels

This clause provides the power for a Directory of Quarantine to sell goods withheld or abandoned and vessels that are detained or abandoned under clauses 21, 27, and subclauses 32(3) and 34(3).

 

Goods and vessels may be sold under this clause to recover unpaid quarantine charges or late payment fees which are due and payable to the Commonwealth or because the owner or person in charge of the goods or vessel does not want to take possession of the goods or vessel (abandonment).

 

In selling the goods or vessel, a Director of Quarantine gives full and effective title to the goods or vessel, free of all other interests. This extinguishes all other interest in the goods or vessel, allowing the purchaser to have full title.

 

This clause allows a Director of Quarantine to make and execute the documents which are necessary for the sale of the goods or vessel to proceed. This may include transfer of title documents and contracts of sale.

 

Clause 30        Dealing with the proceeds of sale

This clause outlines how a Director of Quarantine may apply the proceeds of the sale of goods or vessels under clause 29.

 

The proceeds of sale may be applied to any unpaid quarantine charges or late payment fees owing by the owner of the goods or vessel sold, and any other fee that is due and payable by the owner under the Quarantine Act, regardless of whether that fee is in relation to the goods or vessels.

 

Once any unpaid quarantine charges or late payment fees have been recovered, a Director of Quarantine must pay the remainder of the proceeds to the owner of the goods or vessel. This ensures that the Commonwealth only recovers fees that have not been paid.

 

This clause provides that where the owner of the goods or vessel which has been sold cannot be located, the remaining proceeds are forfeited to the Commonwealth. These funds will become the property of the Commonwealth. However, this may give rise to acquisition of property by the Commonwealth, for which compensation is payable by the Commonwealth (see clause 44).

 

This clause does not limit the ability of the Commonwealth to recover costs by other means, such as through a relevant court.

 

Part 5—Abandoned and forfeited goods

 

Clause 31        Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 32        Abandoned goods

This clause sets out the circumstances in which goods are abandoned under this Act. Similar powers are provided for under section 48A of the Quarantine Act, however, those powers are only available where goods are performing quarantine. These powers will be used where there is not a biosecurity risk.

 

This clause applies if the owner of the goods is liable to pay or has paid a quarantine charge or late payment fee that relates to the goods, the goods are, or have been subject to quarantine, the goods 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 person does not wish to take possession of the goods.

 

Where these conditions have been met a quarantine officer may, in writing, request the owner of the goods to arrange for the goods to be dealt with in a specified manner, within a specified time period. This may include requesting that the person in charge collect the goods, or that the goods be treated or destroyed.

 

If this request has been made by the quarantine officer—and the goods have not been dealt within in the specified manner, within the specified time period—a Director of Quarantine may take possession of the goods and cause them to be destroyed or otherwise disposed of. These goods may also be sold under clause 29.

 

This clause provides the Commonwealth with the ability to dispose of goods in situations where the person in charge has abandoned them. This ensures goods do not remain in the Commonwealth’s possession indefinitely.

 

Under the abandonment provisions, the Commonwealth does not take ownership of the goods. The person in charge of the goods, or the owner, remains responsible for covering the costs of any treatment or quarantine activities carried out after abandonment. The Commonwealth will be able to recover costs for these activities.

 

Clause 33        Forfeited goods

This clause sets out the circumstances in which goods may be forfeited under this Act. Similar powers are provided for under section 48A of the Quarantine Act, however, those powers are only available where goods are performing quarantine. These powers will be used where there is not a biosecurity risk.

 

This clause applies if the owner of the goods is liable to pay or has paid a quarantine charge or late payment fee that relates to the goods, the goods are, or have been subject to quarantine, the goods are in the possession or control of the Commonwealth and a Director of Quarantine notifies the owner of the goods in writing to collect the goods. Where the goods are not collected in 90 days, or a Director of Quarantine has not been able to locate the owner of the goods, despite making reasonable efforts, and has certified in writing to that effect the goods will be forfeited to the Commonwealth.

 

The making of reasonable efforts will be at the discretion of a Director of Quarantine, however, it is unlikely that the owner of the goods would be unknown to the Commonwealth. Where this circumstance does arise it is reasonable that the Commonwealth have recourse to deal with the goods to facilitate the efficient movement of trade into Australian territory.

 

If the goods are forfeited to the Commonwealth, a Director of Quarantine may cause the goods to be sold, destroyed, or otherwise disposed of.

Under the forfeiture provisions, the Commonwealth will become the new owner of the goods. This ensures that the Commonwealth can deal with the goods in the most appropriate manner. Similar to the abandonment provisions, the Commonwealth may use this forfeiture power to ensure that goods are not left in the possession of the Commonwealth, by selling or otherwise disposing of the goods. Where goods are forfeited, the owner of the goods may be able to seek compensation under clause 44.

 

Clause 34        Abandoned vessels

This clause sets out the circumstances in which vessels may be abandoned. This clause applies if the owner or operator of the vessel is liable to pay, or has paid, a quarantine charge or a late payment fee that relates to the vessel, the vessel is, or has been subject to quarantine, the vessel is in the possession or control of the Commonwealth and either a Director of Quarantine receives written notice from the owner of the vessel stating that the owner does not wish to take possession of the vessel, or a Director of Quarantine has in writing requested the owner of the vessel to take possession of the vessel within a specified period and the owner has not taken possession of the vessel within that period.

 

Where these conditions have been met, a Director of Quarantine may, in writing, request the owner of the vessel to arrange for the vessel to be dealt with in a specified manner, within a specified time period. This may include requesting that he or she take possession of the vessel, or that the vessel be destroyed. The requirement to provide notice sits with a Director of Quarantine as the value of most vessels necessitates a higher level of approval.

 

If this request has been made by a Director of Quarantine, and the vessel has not been dealt with in the specified manner, within the specified time period, a Director of Quarantine may take possession of the vessel and cause it to be destroyed or otherwise disposed of. The vessel may also be sold under clause 29.

 

This clause also provides that a Director of Quarantine may cause the goods on board the vessel to be removed from the vessel before it is destroyed.

 

This clause provides the Commonwealth with the ability to dispose of vessels in situations where the person in charge or the owner has abandoned them.

 

Under the abandonment provisions, the Commonwealth does not take ownership of the vessels. The owner remains responsible for covering the costs of any treatment or quarantine activities carried out after abandonment. The Commonwealth will be able to recover costs for these activities.

 

If a charge has been created on the vessel to secure the payment of an unpaid quarantine charge or late payment fee that is due and payable in relation to a chargeable activity carried out in relation to the vessel, the vessel may be dealt with under Division 2 of Part 3 of the Act.

 

Clause 35        Forfeited vessels

This clause sets out the circumstances in which vessels may be forfeited. This clause applies if the owner or operator of the vessel is liable to pay, or has paid, a quarantine charge or a late payment fee that relates to the vessel, the vessel is, or has been, subject to quarantine, the vessel is in the possession, or control of the Commonwealth and a Director of Quarantine has not been able to locate the owner of the vessel, despite making reasonable efforts, and has certified in writing to that effect.

 

The making of reasonable efforts will be at the discretion of a Director of Quarantine, however, it is unlikely that the owner of the vessel would be unknown to the Commonwealth. Where this circumstance does arise it is reasonable that the Commonwealth have recourse to deal with the vessel to facilitate the efficient movement of trade into Australian territory.

 

If the vessel is forfeited to the Commonwealth, a Director of Quarantine may cause the vessel to be sold, destroyed, or otherwise disposed of. This clause also provides that a Director may cause the goods on board the vessel to be removed from the vessel before it is destroyed.

 

Under the forfeiture provisions, the Commonwealth will become the new owner of the vessel. This ensures that the Commonwealth can deal with the vessel in the most appropriate manner. Similar to the abandonment provisions, the Commonwealth may use this forfeiture power to ensure that the vessel is not left in the possession of the Commonwealth indefinitely. Where vessels are forfeited, the owner of the vessel may be able to seek compensation under clause 44.

 

Clause 36        This Part does not affect other powers

This clause sets out that this Part does not affect any power that has been or may be exercised under this Act (other than that provision) or the Quarantine Act .

This clause ensures that this Part does not limit the effective operation of other provisions of this Act and the Quarantine Act.

 

Part 6 Miscellaneous

 

Clause 37        Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 38        Remitting or refunding quarantine charges and late payment fees

This clause allows the Minister for Agriculture to remit or refund fees if the Minister is satisfied there are exceptional circumstances that justify doing so. This will be at the Minister’s discretion. This clause ensures that fees can be refunded or remitted. This may be done at the Minister’s initiative or on written application by a person.

 

This power is provided to the Minister for Agriculture rather than a Director of Quarantine for consistency with the Financial Management and Accountability Act 1997.

 

Clause 39        Providing sustenance for animals and plants

This clause outlines the circumstances in which the Commonwealth can enter into agreements with persons to provide sustenance for animals or plants. The Commonwealth will only be able to enter into an agreement where the animal or plant is subject to quarantine, in the possession or control of the Commonwealth, including whether the animal or plant has been withheld under clause 18 or is on board a vessel that has been detained under clause 24, there are paid or unpaid quarantine charges or late payment fees and the owner of the animal or plant or the owner or operator of the vessel is liable to pay, or has paid, a quarantine charge or late payment fee that relates to the animal or plant or vessel.

 

For example, a Director may enter into an agreement with a person to provide food to cats and dogs which are being kept onboard a detained vessel. This ensures that the animal’s health and welfare is maintained in circumstances where it is subject to quarantine.

 

A person commits an offence if the person contravenes this clause. The maximum penalty is 50 penalty units.

 

Clause 40        Hindering compliance with this Act

This clause provides that a person commits an offence if the person hinders or prevents another person from complying with this Act. The maximum penalty for contravention of this clause is two years imprisonment or 120 penalty units or both.

 

Clause 41        Application of provisions of Quarantine Act 1908 in relation to quarantine charges

This clause ensures the effective concurrent operation of this Act and the Quarantine Act. As fees for biosecurity services are collected under the Quarantine Act and charges for indirect biosecurity services are collected under this Act, it is appropriate that certain elements of the Quarantine Act apply to provide consistency.

 

Subclause 41(1) provides that (subject to subclause 2), any reference to “this Act” under the Quarantine Act will be taken to include a reference to “the Quarantine Charges (Collection) Act 2014”. Subclause 41(1) also outlines which provisions of the Quarantine Act are relevant.

 

Subclause 41(2) provides that any reference in the Quarantine Act to an “offence against this Act” will be taken to include a reference to an offence against the Quarantine Charges (Collection) Act 2014 , and an offence against section 6 of the Crimes Act 1914 or section 11.1, 11.4 or 11.5 of the Criminal Code in relation to an offence against the Quarantine Charges (Collection) Act 2014 .

 

Subclause 41(3) outlines the provisions of the Quarantine Act which are relevant to subclause 41(2). The effect of these provisions is the consistent application of the Crimes Act 1914 and the Criminal Code where an offence is committed against the Quarantine Act or this Act

 

Subclause 41(4) provides that section 5AA of the Quarantine Act applies to references to a quarantine officer in both the Quarantine Act and this Act. This ensures consistency in the application of the term across both Acts.

 

Subclause 41(5) provides that where an approval has been given under section 46A of the Quarantine Act, and it is suspended or revoked under clause 13 of this Act, sections 46A(11), (12) and (13) of the Quarantine Act apply as if the suspension or revocation were under section 46A of the Quarantine Act. This ensures that when a section 46A approval is suspended or revoked, it is done so consistently under both the Quarantine Act and this Act.

Subclause 41(6) provides that where a quarantine officer directs a person to do a thing in relation to goods under subclause 18(5) of this Act, permission is given by the quarantine officer under subsection 44B(6) of the Quarantine Act to fulfil the direction. This subclause provides clarity for the operation of subsection 44B(6), and ensures that a person who is complying with a direction is not committing an offence under subsection 44B(6).

 

Subclause 41(7) provides that Part VI of the Quarantine Act (Expenses) does not apply in relation to an expense constituted by a quarantine charge or late payment fee under this Act. This ensures that the recovery of quarantine charges and late payment fees are only to be dealt with under this Act.

 

Subclause 41(8) provides section 86A of the Quarantine Act (venue in summary prosecution) applies in relation to proceedings under this Act in the same way as it applies in relation to proceedings under the Quarantine Act. This ensures that proceedings are instituted where an offence has been committed under either Act in a consistent manner.

 

Clause 42        Collection and recovery of charges imposed for purposes of validating fees under Quarantine Act 1908

This clause provides for the collection of validated fees (fees imposed on a person under a quarantine fee validation provision under the Imposition Acts). Where those fees have not been paid, this clause provides that certain provisions (42(1)(a) to (g)) apply in relation to those fees. The clause further outlines the quarantine fee validation provisions.

 

This clause ensures that appropriate provisions under the Quarantine Act apply to the collection of fees which were originally imposed under a determination made under section 86E of that Act. This is appropriate as the collection of the validated fee should be undertaken under a similar regulatory system as to the one it was imposed under.

 

Clause 43        General provisions relating to directions

This clause provides for the purposes of clarity that, unless otherwise stated a direction under this Act may be given orally or in writing (including by electronic means) and, unless otherwise provided, a direction that is given under this Act is not a legislative instrument.

 

This clause also provides that a later direction overrides an earlier direction to the extent of any inconsistencies, to ensure that any errors in the original direction are easily rectified.

 

Clause 44        Compensation for acquisition of property

This clause is intended to ensure, for the purposes of section 51(xxxi) of the Constitution, that if the operation of the Act results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.

 

This clause also provides for the person to institute court proceedings in any court of competent jurisdiction, if the Commonwealth and the person do not agree on the amount of compensation.

 

Clause 45        Regulations

This clause provides the ability for the Governor-General to make regulations prescribing matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to this Act. This will allow for more detailed and specific aspects of the Act relating to the operation of provisions to be included in regulations instead of the Act.

 

This clause also provides that the regulations may also prescribe the giving of a notice or direction, or the making of any other requirement, under this Act and the manner in which any notice, direction, requirement or other instrument granted, given or made under this Act may be produced to a person or body.