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Halal Certification Transitional Authority Bill 2018

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2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

HALAL CERTIFICATION TRANSITIONAL AUTHORITY BILL 2018

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Bernardi)



HALAL CERTIFICATION TRANSITIONAL AUTHORITY BILL 2018

 

OUTLINE

 

The purpose of the Halal Certification Transitional Authority Bill 2018 is to act upon the recommendations of the Senate Economics References Committee inquiry into third party certification of food, specifically the recommendation to establish a single certifying authority.

 

The Bill establishes a Halal Certification Transitional Authority (the Authority)designed to cease operations after five years of government-issued halal certificates authorising the holders to certify that certain foods within the scope of their halal certificate are halal.

 

At the conclusion of the Authority’s tenure, subject to the resumption of orderly, transparent and appropriate conduct within the halal certification industry, it is contemplated that the industry would adopt full responsibility for halal certification.

 

The Authority will operate on a full cost recovery basis from persons seeking halal certificates and, as such, have no impact on Commonwealth revenue.

 

To ensure compliance with the Authority’s determinations and conduct, offence, civil penalty, monitoring, investigation and enforcement powers are created. Consistent with Chapter 3 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , the offences are not punishable by imprisonment. Maximum penalties for the offences are in line with those set out by Chapter 3.

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1 : Short title

 

1.                   This is a formal provision which provides that the Bill, once enacted, may be referred to as the Halal Certification Transitional Authority Act 2018.

 

Clause 2 : Commencement

 

2.                   This clause provides that the Act will commence on the day after the Act receives Royal Assent, except sections 3 and 52 which commence when funds are appropriated for the Authority from Consolidated Revenue.

 

Clause 3: Object

 

3.                   This clause sets out the Authority’s object which is to improve outcomes for consumers regarding halal certification.

 

Clause 4: Simplified outline of this Act

 

4.                   This clause provides a general overview of the functions of this Bill. Simplified outlines are included to assist readers to understand substantive provisions - the outlines are not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

 

Clause 5 : Definitions

 

5.                   This clause sets out definitions of terms that are relied on in other provisions throughout the Bill. Some important definitions that warrant detailed explanation include the following:

constitutional corporation - means a corporation to which paragraph 51(xx) of the Constitution applies.

 

constitutional trade and commerce means the following:

 

(a)     trade or commerce between Australia and places outside Australia;

(b)    trade or commerce among the States;

(c)     trade or commerce within a Territory, between a State and a Territory or between 2 Territories.

 

6.                   Together, these definitions make clear the constitutional basis and limitations of the Authority. The intention of the Bill is - so far as the Constitution permits - to provide a single, national certifying authority on a transitional basis for 5 years without competing modes of certification. It is acknowledged that this outcome will depend on the industry and the position of states and territories.

 

Clause 6: Crown to be bound

 

7.                   This clause provides that the Bill binds the Crown in each of its capacities.

 

Clause 7: Extension to external Territories

 

8.                   This clause provides that the Bill will have application to every external Territory.

 

Clause 8: Concurrent operation of State and Territory laws

 

9.                   This clause clarifies that State and Territory laws may operate concurrently with the Bill.

 

Clause 9: Free exercise of religion

 

10.               This clause makes clear that the Act does not apply to the extent that it would prohibit the free exercise of any religion as interpreted by the courts in accordance with the Australian Constitution.

 

Clause 10: Sunset provision

 

11.               This clause provides that the Bill will expire 5 years after clause 10 commences, to reinforce the intent of the Bill and its title - that subject to the Authority meeting its targets of improved conduct in the halal certification industry, the Authority is to be a transitional body.

 

 

Part 2 - Halal Certification Transitional Authority

 

Division 1 - Establishment etc. of Authority

 

Clause 11: Establishment of the Halal Certification Transitional Authority

 

12.               This clause establishes the Authority. It is intended that the Authority will be a listed entity under the Public Governance, Performance and Accountability Act 2013 so that it will be a non-corporate Commonwealth entity to which the provisions of the Public Governance, Performance and Accountability Act 2013 will apply.

 

Clause 12: Membership of the Authority

 

13.               This clause provides that the Authority will be comprised of the Director of the Authority and the staff of the Authority

 

14.               The Authority will not have a legal identity separate from the Commonwealth.

 

Clause 13 : Function of the Authority

 

15.               This clause provides that the function of the Authority is to perform functions permitted or required to be performed under the Bill.

 

Clause 14 : Powers of Authority

 

16.               This clause confers powers on the Authority necessary or convenient to perform its functions.

 

Clause 15 : Authority does not have privileges and immunities

 

17.               This clause clarifies the limits of the Authority’s privileges and immunities.

 

Division 2 - Director and staff of Authority

 

Clause 16: Director

 

18.               This clause confirms there is to be a Director of the Authority.

 

Clause 17: Appointment of Director

 

19.               This clause outlines the process for appointment and the term of the Director, which must not exceed 5 years.

 

Clause 18: Function of Director

 

20.               This clause outlines the scope and limitations of the Director’s functions.

 

Clause 19: Powers of Director

 

21.               This clause outlines the scope and limitations of the Director’s powers.

 

Clause 20: Acting appointments

 

22.               This clause sets out the circumstances and manner in which an Acting Director can be appointed.

 

Clause 21: Remuneration and allowances

 

23.               This clause sets out how the Director’s remuneration and allowances are to be independently determined by the Remuneration Tribunal.

 

Clause 22: Leave of absence

 

24.               This clause describes how entitlements to leave accrue and how the Director may take leave.

 

Clause 23: Other paid work

 

25.               This clause confirms that the Director must work solely in their capacity as Director unless the Minister approves other paid work.

 

Clause 24: Other terms and conditions

 

26.               This clause confers upon the Minister the power to determine such other terms and conditions in relation to the Director’s appointment as the Minister sees fit.

 

Clause 25: Resignation

 

27.               This clause outlines the process for the resignation of a Director, and the date a resignation will take effect.

 

Clause 26: Termination of appointment

 

28.               This clause outlines the circumstances in which a Director’s term may cease other than by resignation or death.

 

Clause 27: Delegation by Director

 

29.               This clause outlines how and to whom the Director may delegate any or all of their functions or powers.

 

Clause 28: Staff

 

30.               This clause clarifies the employment status of staff of the Authority.

 

 

Part 3 - Halal Certificates

Clause 29 : Application for halal certificate

31.               Subclause  29(1) provides that a person may apply to the Authority for a halal certificate in relation to a kind of food irrespective of whether it is intended for domestic consumption, export, or both.

 

32.               Subclauses 29(2) and 29(3) provide that an application for a halal certificate must:

 

·          be made in a manner approved, in writing, by the Authority; and

·          if the Authority has approved a form for making the application - include the information required by the form; and

·          be accompanied by the fee prescribed by the rules.

 

33.               It will be necessary for the Director to have all the relevant and available information to make an informed decision about the issue of a halal certificate. Enabling rules - made under clause 51 of the Bill - could prescribe any information or documents that the person should provide to the Director in relation to an application for a halal certificate. Such rules will provide the Director with the flexibility to determine additional matters which are of importance and may be specific to a particular kind of food.

 

 

34.               Subclause  29(4) provides that a fee must not be such as to amount to taxation to address the constitutional limitation on the imposition of a tax.

Clause 30 : Grant of halal certificate

35.               This clause outlines the process for the Authority to determine whether or not to grant a halal certificate. This includes determining whether the applicant is a fit and proper person to hold a halal certificate, and whether the kind of food is halal.

Clause 31: Authority may impose conditions

36.               This clause grants the Authority power to impose such conditions on the grant of a halal certificate as it sees fit.

Clause 32: Matters to be specified in a halal certificate

37.               This clause outlines the particular matters that must be specified in a halal certificate, including the duration that the certificate is in force.

Clause 33: Renewal of halal certificate

38.               This clause outlines the process for the holder of a halal certificate to apply to renew the certificate before it expires.

Clause 34: Revocation of halal certificate

39.               This clause outlines that a halal certificate will cease to be in force if a condition is breached, or if it is revoked by the Authority.

Clause 35 : Basis on which halal certificates granted

40.               This clause makes clear the circumstances under which a halal certificate is granted, and the consequences should a certificate be cancelled, revoked or terminated.

 

 

Part 4 - Offences and civil penalties

41.               For clauses 37, 38, 39 and 40 of the Bill, the Commonwealth will decide in each particular case whether to prosecute a person for a fault-based or strict liability offence, or whether to bring proceedings for a civil penalty order. A person will not be prosecuted for both a fault-based and a strict liability offence, but only one, and once convicted of a criminal (fault-based or strict liability) offence a person could not be pursued for civil penalties. However, proceedings for a contravention of a civil penalty provision could be brought prior to a person being prosecuted for a criminal offence.

 

42.               The strict liability provision and its attendant 1/10 th lesser penalty is designed to capture regulatory offences where the person has clear notice of the requirement not to contravene the physical elements of the offence. As this Act applies to constitutional corporations, it is not uncommon to apply strict liability offences to corporate regulation. Furthermore, it is not uncommon for strict liability to apply to offences carrying a penalty of the relatively lesser magnitude provided herein.

Clause 36: Physical elements of offences

 

43.               This clause clarifies that, for each offence set out in this Part, the physical elements of the offence are set out in subsection (1) of the relevant section. This information is provided to aid in the application of Chapter 2 of the Criminal Code, which relates to general principles of criminal responsibility, to the offences provided by the Bill.

Clause 37: Constitutional corporations selling or offering to sell uncertified halal food

 

44.               To ensure the broadest possible support via the corporations power, the offences in this section apply to conduct related to selling or offering to sell uncertified halal food, but are restricted to dealings with constitutional corporations.

Clause 38: Selling or offering to sell uncertified halal food in the course of constitutional trade and commerce

 

45.               To ensure the broadest possible support by the trade and commerce power, the offences in this section apply to conduct related to selling or offering to sell uncertified halal food, but are restricted to constitutional trade and commerce.

Clause 39: Constitutional corporations certifying or purporting to certify that food is halal

 

46.               To ensure the broadest possible support by the corporations power, the offences in this section apply to conduct related to selling or offering to sell uncertified halal food, but are restricted to dealings with constitutional corporations.

 

47.               This clause outlines the offences related to purporting to certify that food is halal. This offence is essential to the integrity of the Bill as it seeks to create a single, certifying authority that in turn issues halal certificates to those approved to certify halal food. It will be an offence for others to purport to do so without the authorisation of the Authority.

Clause 40: Certifying or purporting to certify that food is halal in the course of constitutional trade and commerce

 

48.               To ensure the broadest possible support via the trade and commerce power, the offences in this section apply to conduct related to selling or offering to sell uncertified halal food, but are restricted to constitutional trade and commerce.

 

49.               This clause outlines the offences related to purporting to certify that food is halal. This offence is essential the integrity of the Bill as it seeks to create a single, certifying authority that in turn issues halal certificates to those approved to certify halal food. It will be an offence for others to purport to do so without the authorisation of the Authority

 

 

Part 5 - Enforcement

Clause 41: Appointment of authorised officers

 

50.               This clause establishes who may be appointed to be an authorised officer, namely staff of the Authority whom the Director is satisfied have the knowledge or experience to properly exercise the relevant powers.

Clause 42: Monitoring powers

 

51.               This clause applies the standard monitoring powers under Part 2 of the Regulatory Powers Act to the provisions of the Bill. The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, and also in relation to enforcement powers through the use of civil penalties, infringement notices, enforceable undertakings and injunctions. The Regulatory Powers Act only has effect where Commonwealth Acts are drafted or amended to trigger its provisions. Applying Part 2 of the Regulatory Powers Act to the Bill will remove the requirement to duplicate the monitoring powers provisions in the Bill.

 

52.               Subsection 7(2) of the Regulatory Powers Act states that, in order for Part 2 of the Regulatory Powers Act to operate, a provision of an Act or legislative instrument must be made subject to monitoring under that Part. Subsection 7(2) also states that information given in compliance, or purported compliance, with a provision of an Act or legislative instrument, must be made subject to monitoring under that Part, by another Act (a triggering Act). When a triggering Act applies Part 2 of the Regulatory Powers Act, it must identify any related provisions and the authorised applicant or applicants, the authorised person or persons, the issuing officer or officers, the relevant chief executive and the relevant court or courts that may exercise powers under that Part (see sections 10, 11, 12, 14, 15 and 16 of the Regulatory Powers Act).

Provisions subject to monitoring

53.               Subclause 42(1) will provide that the provisions of the Bill will be subject to monitoring under Part 2 of the Regulatory Powers Act. This will ensure that Part 2 of that Act will be able to operate for the purposes of monitoring compliance with the provisions of the Bill.

 

54.               A note will be included at the end of subclause 42(1). Note 1 will refer the reader to Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether the provisions of an Act or a legislative instrument have been, or are being complied with .

Information subject to monitoring

55.               Subclause 42(2) will provide that information given in compliance or purported compliance with a provision of the Bill will be subject to monitoring under Part 2 of the Regulatory Powers Act. This will ensure that Part 2 of that Act can operate for the purposes of monitoring information given in relation to a provision of the Bill. A note will be included at the end of subclause 42(2) that will refer the reader to Part 2 of the Regulatory Powers Act. Part 2 of that Act establishes a framework for monitoring whether information given in compliance, or purported compliance, with a provision of an Act or legislative instrument is correct .

Related provisions, authorised applicant, authorised person, issuing officer and relevant court

56.               Subclause 42(3) will clarify how certain terms used in the Bill will operate in relation to the Bill and information referred to in subclause 42(2).

 

57.               Paragraphs 42(3)(a) and 42(3)(b) will provide that a reference to an authorised applicant and a reference to an authorised person in Part 2 of the Regulatory Powers Act will be a reference to an authorised officer under the Bill. Clause 5 of the Bill will define the term authorised officer to mean a person who is authorised under clause 41 of the Bill to be an authorised officer under the Bill.

 

58.               Paragraph 42(3)(c) will provide that a reference to an issuing officer in Part 2 of the Regulatory Powers  Act will be a reference to an issuing officer under the Bill.

 

59.               Paragraph  42(3)(d) will provide that a reference to the relevant chief executive in Part 2 of the Regulatory Powers Act will be a reference to the Director of the authority.

 

60.               Paragraph 42(3)(e) will provide that a reference to a relevant court in Part 2 of the Regulatory Powers  Act will be a reference to the Federal Court of Australia and the Federal Circuit Court of Australia.

 

61.               Subclause 42(4) will provide that the person who is a relevant chief executive under Part 2 of the Regulatory Powers Act may delegate powers in the circumstances outlined in subclause 42(5), and subject to such directions as are issued pursuant to subclause 42(6).

 

62.               Subclause 42(7) makes clear that the provisions of the Regulatory Powers Act apply to every external Territory.

Clause 43: Investigation powers

 

63.               This clause triggers the standard investigation powers in Part 3 of the Regulatory Powers Act. Part 3 of that Act creates a framework for investigating compliance with the offence and civil penalty provisions in the Bill or an offence against the Crimes Act 1914 or the Criminal Code that relates to the Bill.

 

64.               The investigation powers triggered under Part 3 of the Regulatory Powers Act allow an authorised person to enter premises to exercise investigation powers if the authorised person suspects on reasonable grounds that there is evidential material on the premises (subsection 48(1) of the Regulatory Powers Act). However, the authorised person can only do so with the consent of the occupier or an investigation warrant (subsection 48(2) of the Regulatory Powers Act).

 

65.               The investigation powers set out in Part 3 of the Regulatory Powers Act permit an authorised officer to, among other things, search the premises and seize evidential material; inspect, test and copy evidential material, take necessary equipment onto the premises; operate electronic equipment found on the premises, secure electronic evidence for 24 hours in order to obtain expert assistance, and seize evidence of contravention of related provisions.

 

66.               These investigation powers would allow non-compliance to be more easily detected and ultimately reduced , leading to greater prospects of the Authority achieving its purpose before the sunset provision enlivens.

Clause 44: Civil penalty provisions

 

67.               This clause triggers the standard provisions of Part 4 of the Regulatory Powers Act. This clause would create a framework for allowing the civil penalty provisions of the Bill to be enforced by obtaining an order for a person to pay a pecuniary penalty.

Clause 45: Infringement notices

 

68.               This clause triggers the standard provisions of Part 5 of the Regulatory Powers Act. Under subclauses 37(4), 38(4), 39(4) and 40(4), infringement notices will be able to be issued for civil penalty provisions of the Bill. A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against them for the contravention.

Clause 46: Injunctions

 

69.               This clause triggers the standard provisions of Part 7 of the Regulatory Powers Act. Subclause 46(1) enables an injunction to be sought in relation to the civil penalty provisions of the Bill. Injunctions (including interim injunctions) may be used to restrain a person from contravening a provision of the Bill, or to compel compliance with a provision of the Bill.

 

 

Part 6 - Miscellaneous

Clause 47: Treatment of partnerships

 

70.               This clause clarifies that the scheme applies to a partnership as if the partnership were a legal person, but with the changes set out in the clause. This provision has been included to ensure that there is adequate coverage of partnerships that may be acting on behalf of a foreign principal.

 

71.               Subclause 47(2) provides that an obligation that would otherwise have been imposed on the partnership under the scheme is imposed on each partner instead. The obligation may be discharged by any of the partners - it need not be all of the partners acting together. For example, if a partnership is undertaking certification activities on behalf of a foreign principal, the partnership would need to obtain a halal certificate from the Authority. Consistent with the requirements for individuals granted a halal certificate, the partnership would be required to maintain records in relation to their certification activities and satisfy the responsibilities of the recipient of a halal certificate under the Bill. All of the partners are considered to be under these obligations; however the obligations are met if only one of the partners maintains the records on behalf of the partnership.

 

72.               Subclause 47(3) provides that liability to a civil penalty under this Bill that would have otherwise been incurred by the partnership is taken to have been incurred by each partner in the partnership at the time the offence was committed, who:

 

·          did the relevant act or made the relevant omission

·          aided, abetted, counselled or procured the relevant act or omission, or

·          was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

 

73.               This provision has been included to ensure that partners cannot avoid liability under the Bill simply by virtue of the fact that it is the partnership that is recognised by the Authority, rather than the partner as an individual.

 

74.               Subclause 47(4) provides that a change in the composition of a partnership does not affect the continuity of the partnership for the purposes of the Bill. As such, if a partnership was granted a halal certificate under the Bill, that certification would not change simply because a new partner is added to the partnership, or the partnership changes in some other way.

Clause 48: Treatment of unincorporated associations

 

75.               This clause provides that the Bill applies to an unincorporated association as if the association were a person but with the changes set out in the clause.

Clause 49: Treatment of trusts

 

76.               This clause would extend the application of the Bill to trusts. Where there is a single trustee the obligations imposed by the Bill would apply to that trustee. Where there is more than one trustee, the obligations would apply to each and every trustee, but be able to be discharged by any one of the trustees.

Clause 50: Review of decisions by Administrative Appeals Tribunal

 

77.               Clause 50 provides that decisions made by the Authority are reviewable by the Administrative Appeals Tribunal.

Clause 51: Rules

 

78.               This clause enables the Minister to make rules prescribing matters required or permitted to be prescribed by the Bill, or necessary or convenient to be prescribed for carrying out or giving effect to the Bill.

 

79.               Subclause 51(2) provides that the rules must not create an offence or civil penalty if the rules are contravened, provide powers of arrest or detention, entry, search or seizure or impose a tax. The rules may also not appropriate funds or amend any text of the Bill.

Clause 51: Independent review

 

80.               To aid the progress towards the sunset provision of the Bill, this clause provides for an independent review of the operation of the Bill commissioned by the Minister and presented to Parliament. This Review would inter alia guide the Parliament as to whether it is appropriate in all the circumstances to revise the sunset arrangements.



 

Statement of Compatibility with Human Rights

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

 

Halal Certification Transitional Authority Bill 2018

 

 

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 purpose of the Halal Certification Transitional Authority Bill 2018 is to establish a five-year, transitional regime for the certification of products in the Australian consumer market as halal. It is anticipated that rogue and fraudulent elements from the industry will have been eliminated in that five years at which point the Bill sunsets.

 

Human rights implications

 

This Bill engages freedom of religion . Article 18 paragraph 3 of the International Covenant on Civil and Political Rights (ICCPR) reads:

“Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.”

 

Sufficient concern has been raised in the community regarding the fraud, misrepresentation and standards within an unregulated halal certification industry that the steps taken in this Bill are justified. These concerns were addressed and confirmed by the Senate inquiry into third party certification of food, in the committee's report of 1 December 2015. Specifically, Recommendation 6 of the report was that the halal certification industry considers inter alia establishing a single halal certification authority. Several years later, this has not occurred, and as such the Parliament is justified in intervening in a manner that is reasonable, necessary and proportionate to that objective. The Bill also makes clear that its provisions do not apply to the extent that it infringes religious freedom.

 

This Bill also engages criminal process rights (Article 14 of the ICCPR), specifically the strict liability provisions’ impact on the presumption of innocence (Article 14.2). The right to protection from arbitrary interference with privacy (Article 17) is also engaged. The format and scope of these limitations on those rights are reasonable, necessary and proportionate to achieving a legitimate objective and reflect the standard approach to these matters adopted in government legislation by applying the monitoring, investigation and enforcement powers set out in the Regulatory Powers (Standard Provisions) Act 2014 .

 

Conclusion

 

This Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

 

Senator Bernardi