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Export Charges (Collection) Bill 2015

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2013-2014-2015

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

EXPORT CHARGES (COLLECTION) BILL 2015

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

EXPORT CHARGES (COLLECTION) BILL 2015

 

General Outline

The Export Charges (Collection) Bill 2015 (collection bill) forms part of a legislative package to support Australia’s system for the control of exported goods with an efficient and effective cost recovery model which is consistent with the Australian Government Cost Recovery Guidelines .

 

The collection bill provides authority to collect charges imposed under the Export Charges (Imposition—General) Bill 2015, the Export Charges (Imposition—Excise) Bill 2015 and the Export Charges (Imposition—Customs) Bill 2015 (the imposition bills).

 

The export of certain goods is managed under the Export Control Act 1982 (Export Control Act) and the Australian Meat and Livestock Industry Act 1997 (AMLI Act). These Acts and other supporting legislation provide the basis for ensuring that certain exports such as meat, seafood, dairy, plant products, non-prescribed goods and live animals meet the requirements of importing countries.

 

The Department of Agriculture (department) monitors operational policy and systems to ensure compliance with Australian export controls and any additional importing country requirements. This is achieved by undertaking inspection, audit and certification activities to ensure that the production, storage, handling and transportation of meat, seafood, dairy, plant products, non-prescribed goods and live animals intended for export comply with Australian export controls and any additional requirements imposed by an importing country.

 

These activities serve to maintain the eligibility of commodities for export from Australia and ensure that market access is maintained. The department also issues permits, health certification and other documentation necessary to confirm compliance with the export control orders and any additional importing country requirements.

 

Monitoring compliance with export legislation comes at a cost. The Australian Government Cost Recovery Guidelines state that agencies should set charges to recover some or all the costs of activities that they provide. These charges should reflect the costs of providing the activity and should generally be imposed as a fee or, where efficient, as a levy.

 

This collection bill is part of a legislative package that is designed purely as a cost recovery mechanism. This package is needed to recover costs under both the Export Control Act and AMLI Act .

 

Existing export charging legislation is complex and allows for the recovery of charges in relation to the Export Control Act only. This package of bills will ensure that appropriate cost recovery mechanisms are in place for all export related activities. It provides a modern drafting framework for applying cost recovery levies that can be used to recover costs across all agricultural exports.

 

The collection bill provides that the regulations will determine the manner in which the export charges and late payment of fees are to be paid. This includes the time in which a specified export 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 when required.

 

The collection bill 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 collection bill also includes powers to suspend or revoke permits, licences, registrations or any other approval given under the Export Control Act or AMLI Act until payment is made.

 

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 collection bill sets out provisions for the remitting or refunding of charges or late payment fees where the Secretary of the Department of Agriculture decides it is appropriate to do so.

 

 

Financial Impact Statement

The collection bill has no financial impact on the Commonwealth or industry. The collection 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

 

Export Charges (Collection) Bill 2015

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 collection bill forms part of a legislative package to support Australia’s system for the control of exported goods with an efficient and effective cost recovery model which is consistent with the Australian Government Cost Recovery Guidelines .

 

The collection bill provides authority to collect charges imposed under the imposition bills.

 

The export of certain goods is managed under the Export Control Act and the AMLI Act. These Acts and other supporting legislation provide the basis for ensuring that certain exports such as meat, dairy, fish, plant products and live animals meet the requirements of importing countries.

 

The department monitors operational policy and systems to ensure compliance with Australian export controls and any additional importing country requirements. This is achieved by undertaking inspection, audit and certification activities to ensure that the production, storage, handling and transportation of seafood, dairy, egg and non-prescribed goods intended for export comply with Australian export controls and any additional requirements imposed by an importing country.

 

These activities serve to maintain the eligibility of commodities for export from Australia and ensure that market access is maintained. The department also issues permits, health certification and other documentation necessary to confirm compliance with the export control orders and any additional importing country requirements.

 

The collection bill is part of a legislative package that is designed purely as a cost recovery mechanism establishing an appropriate legal structure for the recovery of costs through the imposition of charges, as a levy, rather than a fee. The legislation will sit alongside the existing cost recovery fees that apply to those activities provided directly to persons who export or deal with exported regulated goods.

 

This legislative package is needed to recover costs under both the Export Control Act and the AMLI Act . Existing export charging legislation is complex and allows for the recovery of costs under the Export Control Act only.

 

This package of bills will ensure that appropriate cost recovery mechanisms are in place for all export certification related activities. It provides modern drafting for applying cost recovery levies that can be used by all agricultural exports. In time, the charges that sit in the existing export charging legislation could be transferred across and will create a consistent charging structure for all export commodities.   

 

The collection bill provides that the regulations will determine the manner in which the export charges and late payment of fees are to be paid. This includes the time when a specified export charges are 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 when required.

 

The collection bill 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 collection bill also includes powers to suspend or revoke licences, permissions, permits, consent, certificates, notices, registration or accreditation, or any other approval given under the Export Control Act and the AMLI Act until payment is made. 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 collection bill sets out provisions for the remitting or refunding of charges or late payment fees where the Secretary of the department (the Secretary) decides it is appropriate to do so.

 

Human rights implications

List of rights engaged:

·          Article 14(1) of the ICCPR—rights to a fair hearing

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

·          Articles 6(1) of the ICESCR—right to work

 

Right to a fair hearing

 

Article 14(1) of the ICCPR provides for a fair hearing before an independent court or tribunal. This right applies to both civil proceedings (which can include merits review by the Administrative Appeals Tribunal) and criminal charges. This right is limited by preventing a person bringing a civil action for damages.

 

Clause 20 of the collection bill provides that those exercising powers under the collection bill will have protection from civil proceedings. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty. Protection from civil proceedings allows those required under the collection bill to make decisions and take action to manage exports appropriately, to do so without the fear of a civil proceeding being taken against them.

 

This clause is reasonable and necessary for the legitimate objective of protecting the Commonwealth and its officers (protected persons) from civil proceedings flowing from the performance of their duties under the collection bill, done in good faith. Where the Commonwealth or a protected person causes damage or loss, and their actions are found to be not in good faith, the right to a fair hearing remains unlimited. The right to seek judicial review also remains.

 

The right to a fair hearing is promoted by clauses 17 and 19. These clauses allow a person subject to a decision under subclause 12(2) (suspension or revocation of an export control instrument) to apply to the Secretary for a review of the decision. The Secretary may review the decision personally, or cause the original decision to be reviewed by a person who was not involved in making the original decision and who is senior to the delegate who made the original decision. Clause 19 provides that a person may apply to the Administrative Appeals Tribunal for a review of a decision made under subclause 12(2) or a decision made by an internal reviewer under clause 17.

 

To the extent that the collection bill may engage with and limit rights to a fair hearing, those limitations are reasonable, necessary and proportionate to achieve the legitimate objective of the collection bill.

 

Assessment against civil penalties

 

The Parliamentary Joint Committee on Human Rights Practice Note 2 notes that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a ‘criminal’ penalty for the purposes of ICCPR.

 

A single civil penalty provision (subclause 16(3)) is proposed in the collection bill. Clause 16 provides that the Secretary may require a person to give information or documents relevant to the operation of the collection bill or an export charge. The Secretary can only make such a requirement where he or she believes there are reasonable grounds to do so. A person who commits the offence will be liable for a penalty of 30 penalty units.

 

This provision should not be considered ‘criminal’ for the purposes of human rights law. While a criminal penalty is deterrent or punitive, this penalty is aimed at objectives that are regulatory or disciplinary in nature. The severity of the civil penalty is considered low as it is pecuniary (rather than a more severe punishment like imprisonment) and there is no sanction of imprisonment for non-payment of the penalties.

 

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.

 

Clause 16 of the collection bill protects the ability of the Commonwealth to collect charges related to the export of goods when they are due and payable by allowing it to require a person to provide relevant information and documents, which may include personal information. Clause 21 of the collection bill provides the Secretary the authority to require information in relation to an application for an internal review of a decision to cease providing services and activities. The Secretary may refuse the application for review in the absence of this information.

 

The inclusion of these provisions may engage and limit rights under Article 17 of the ICCPR. The power to require information and documents is necessary to manage compliance with the collection bill. To ensure the proper use of these provisions, the exercise of these powers would only be available to the Secretary or a delegate at the Senior Executive Service level. This provision has the test of reasonableness built in. The operation of this test, and the level at which it is applied, ensures that the exercise of powers under this clause would only occur when it is reasonable to do so.

 

These provisions are required to be exercised in compliance with the Privacy Act 1988 (Privacy Act). This means that the protections on the use and storage of personal information that exist under the Privacy Act would apply to the collection and use of personal information collected under the collection bill.

 

To the extent that the collection bill may engage with and limit rights protection from arbitrary and unlawful interferences with privacy, those limitations are reasonable, necessary and proportionate to achieve the legitimate objective of the collection bill.

 

Right to 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.

 

Clause 12 of the collection bill provides for the suspension or revocation of export control instruments such as a licence, permit or registration and the withdrawal of services to recover unpaid export charges or fees. These provisions can only be imposed when a person is liable to pay an export charge or late payment fee and cannot be imposed arbitrarily. The powers under this clause reflect the need for the Commonwealth to be able to cease providing services to persons who export or deal with exported regulated goods when there are unpaid charges or late payment fees. The Secretary may provide a written notice when a decision is made to suspend or revoke an export control instrument and detail the review mechanism. A suspension or withdrawal of service is only in place until the export charges or late fees are paid.

 

Potential engagement with the right to work under this clause is reflective of the business-like arrangement between persons wishing to export goods and the Commonwealth, and allows the Commonwealth to suspend or revoke a export control instrument or cease providing services and activities when the user of those services or activities has unpaid charges or late payment fees. This may have a consequence of limiting a person’s ability to perform the work which they have freely chosen.

 

The proportionate recovery of costs that are due and payable in relation to exports is a reasonable and proportionate response to non-payment, even in circumstances where the right to work is engaged.

 

Such charges will be imposed on a reasonable basis-being charged only on a cost recovery basis and proportionate. A decision to cease providing services and activities is reviewable internally within the department and by the Administrative Appeals Tribunal. To the extent that the collection bill may also limit rights to work, those limitations are reasonable, necessary and proportionate to achieve the legitimate objective of the collection bill.

 

Conclusion

 

The collection bill 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 . To the extent that the collection bill may also limit human rights, those limitations are reasonable, necessary and proportionate to achieve the legitimate objective of the collection bill.

 

 

 

Minister for Agriculture

 

The Hon. Barnaby Joyce MP

Notes on clauses

 

Part 1—Preliminary

 

Clause 1          Short title

This clause provides that the Bill, when enacted, may be cited as the Export Charges (Collection) Act 2015

 

Clause 2          Commencement

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

 

Clause 3          Simplified outline of this Bill

This clause provides a concise outline of the Bill.

 

Clause 4          Bill binds the Crown

This clause provides that the Bill 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 Bill.

 

Clause 5          Extension to external territories

This clause provides that the Bill will extend to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands. It also provides that the regulations to the Bill may extend the Bill 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 export activities and the administration of the export legislation can be imposed anywhere those activities are provided including in the Territory of Christmas Island, the Territory of 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 Bill to an external territory when the enabling regulations are tabled in each House of Parliament.

 

Clause 6          Definitions

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

 

Export charge

This definition provides that an ‘export change’ has the meaning of a charge imposed under sections 7 or 11 of the Export Charges (Imposition—Customs) Act 2015 or the Export Charges (Imposition—General) Act 2015 or the Export Charges (Imposition— Excise) Act 2015 .

 

Export control instrument

This definition provides that an export control instrument includes any one of the following: a licence, permission, permit, consent, approval, certificate, notice, or a registration or accreditation under the Export Control Act, a licence or approval under the AMLI Act or any other thing granted to issued to or held by the person under any export legislation that relates to the export of goods that is prescribed in regulations.

 

Finance Minister

This definition provides the ‘Finance Minister’ is the Minister administering the Public Governance, Performance and Accountability Act 2013 .

 

Internal reviewer

This definition provides that an internal reviewer has the meaning given by paragraph 17(3)(b).

 

Late payment fee

This definition provides that a ‘late payment fee’ has the meaning given by subclause 12(1).

 

Protected person

This definition provides that a protected person is: the Secretary, a delegate of the Secretary under clause 21, a person given a direction under subclause 12(5) or a person who is given information or documents in accordance with a notice given under subclause 16(1).

 

 

Part 2—Paying export charges

 

Clause 7          Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 8          Paying export charges

This clause provides that the regulations may prescribe the time when a export charge is due and payable and prescribe the rules relating to the liability of agents to pay an export charge and the recovery of the charge from the person by the agent.

 

Specifying such matters in regulations, as opposed to the Bill 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 Bill to be amended as operational practices evolve.

 

Clause 9          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 Minister for Finance 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 Minister for Finances’ direction, the department will have the legal authority to collect charges from agencies and other Commonwealth bodies for export-related activities under the Export Control Act and AMLI Act, and those bodies will have the legal authority to make payments to the department for such activities.

For clarity, the clause further states that the Finance Minister’s direction has effect, and must be complied with, despite any other Commonwealth law.

 

Subclause 9(2) states that a direction under this clause is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 . This is declaratory of the law and not a substantive exemption from the Legislative Instruments Act 2003 .

 

For clarity, the term ‘Commonwealth’ in subclauses 9(1) and 9(2) includes a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013 ) that cannot be made liable to taxation by a Commonwealth law.

 

 

Part 3—Unpaid export charges

 

Clause 10        Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 11        Late payment fee

This clause allows the regulations to specify a late payment fee that is due and payable if a export 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 export charge remains unpaid and may also be held against one or more persons who is liable to pay a export charge.

 

Late payment fees will be used to encourage compliant behaviour in persons who export or deal with exported regulated goods to ensure that export charges are paid on time and that the Commonwealth recovers costs for activities already provided.

 

Clause 12        Action by the Secretary if export charges or late payment fees are unpaid

This clause provides the Secretary with the authority to suspend or revoke export control instruments and/or give a direction not to provide to a person a range of activities until receipt of an export charge or late fee which is due and payable.

 

Actions taken by the Secretary in relation to this clause are intended to encourage compliance with the requirement to pay relevant export charges and/or late payment fees. It is also necessary to ensure that the Commonwealth recovers costs for activities already provided.

 

Subclause 12(2) provides the Secretary with the power to suspend or revoke an export control instrument in relation to a person that has not paid an export charge or late payment fee which is due and payable. An export control instrument includes a licence, permission, permit, consent, approval, certificate, notice, or a registration or accreditation under the Export Control Act, a licence or approval under the AMLI Act or any other thing granted, issued or held by the person under any export legislation that relates to the export of goods that is prescribed in regulations. This action, in effect prevents a person from undertaking activities under the Export Control Act or AMLI Act relating to the exportation of goods from Australia. A suspension of an instrument is only in place until applicable export charges or late fees are paid.

 

The Secretary may give written notice, setting out the reasons for the decision and rights of the person to have the decision reviewed. While operational procedures would require that a notice be given to the person wherever possible, there may be some situations where circumstances prevent the giving of such a notice. Circumstances may include where a person cannot be found, but an export control instrument remains valid. Failure to provide such a notice, irrespective of the circumstances, does not invalidate the decision to suspend or revoke the export control instrument.

 

Decisions that relate to the suspension or revocation of an export control instrument under subclause 12(2) are reviewable by way of internal review (clause 17) or through the Administrative Appeals Tribunal (clause 19).

 

This clause does not limit any other power of the Secretary under the Export Control Act or AMLI Act to suspend or revoke the approvals or authorisations for any other reason.

 

Subclause 12(5) provides the Secretary with the authority to give a direction not to give a licence, permission, permit, consent, approval, certificate, notice, registration or accreditation under the Export Control Act; a licence or approval under the AMLI Act; or any other thing granted, issued or held by the person under any export legislation that relates to the export of goods that is prescribed in regulations. This clause has the same effect as subclause 12(2) in preventing a person from undertaking activities under the Export Control Act and AMLI Act relating to the export of goods from Australia. There is no requirement to issue a notice under this clause, as no export control instrument has been suspended or revoked.

 

A direction under subclause 12(5) is not reviewable by way of internal review (clause 17) or through the Administrative Appeals Tribunal (clause 19). In addition to encouraging compliance with the Bill, this clause is intended to prevent the department from directing resources toward providing activities and incurring costs where a person has not paid the required export charge or late fee. The inclusion of a review mechanism would unnecessarily add to the administrative burden of administering the Bill and would be contrary to the purpose of this clause. Judicial review is available to challenge any decisions made under this section.

 

Subclause 12(6) states that if a direction under subclause 12(5) is given in writing, the direction is not an instrument within the meaning of section 5 of the Legislative Instruments Act 2003 . This is declaratory of the law and not a substantive exemption from the Legislative Instruments Act 2003 .

 

Clause 13        Recovery of export charges and late payment fees

This clause provides the Commonwealth with the ability to recover any export 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 export charges and late payment fees through a relevant court will ensure the Commonwealth can recover costs for activities already provided.

 

 

Part 4—Miscellaneous

 

Clause 14        Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 15        Remitting or refunding export charges and late payment fees

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

 

Providing the Secretary with the authority to remit charges is necessary to manage the cost recovery for export arrangements. In circumstances where the arrangements consistently recover costs in excess of the cost of the activities being provided, remittance may be used to return that excess. Such arrangement would only remain in place until the charges resulting in the over recovery were adjusted.

 

The decision to not remit charges and late payment fees is not subject to review. Export charges and late payment fees are not arbitrarily imposed. In establishing a charge, industry consultation is undertaken during the development of a Cost Recovery Implementation Statement. This consultation provides those impacted by the charge with the opportunity to influence how cost recovery arrangements are designed and implemented. It also provides for a mechanism for the disclosure of these arrangements.

 

The related imposition bills include a safeguard regarding the amounts of the charges that can be authorised. Before the Governor-General makes regulations to set the amount of charges, the Minister for Agriculture must be satisfied that the amount of the charge is set at a level that is designed to recover no more than the Commonwealth’s likely costs. These arrangements are in place to ensure the government will not intentionally inflate the costs of providing services. The cost and administrative burden of providing for a review mechanism is also likely to be significant.

 

Clause 16        Power to require information or documents

This clause provides that the Secretary may, by written notice, require a person to give the person specified in the notice information or documents relevant to the operation of the Bill or an export charge. The Secretary can only make this requirement where he or she believes there are reasonable grounds to do so.

 

The notice must specify the information or documents the person is required to give and the time frame for doing so. The timeframe for the giving of information and documents must be at least 14 days after the person is given the notice.

 

This will allow the Secretary to request information when it is relevant to the operation of this Bill or a charge, for example, to request information about the volume or weight of a consignment, in order for the appropriate charge to be invoiced.

 

A person who is given notice under this clause and fails to comply with the notice commits an offence. The maximum penalty for a contravention is 30 penalty units.

 

Clause 17        Internal review of delegate’s decision to suspend or revoke export control instruments

This clause outlines the requirements for internal review of decisions made under subsection 12(2) of this Bill.

 

A person may apply to the Secretary for review of a decision to suspend or revoke an export control instrument in circumstances when a delegate of the Secretary made the decision. Where the original decision was made by the Secretary, the decision is reviewable by the Administrative Appeals Tribunal (see clause 19).

An application for an internal review must be in writing to the Secretary. The application must be made within 30 days after the person was notified of the original decision, or within a longer period if allowed by the Secretary. The application for review must state the reasons why the review has been requested.

On receiving the application, the Secretary must either review the decision personally or cause the reviewable decision to be reviewed by another person (the ‘internal reviewer’). The internal reviewer must be someone who was not involved in making the original decision and who is in a more senior role than the person who actually made the original decision. This separates the review from the original decision making process and ensures the person who is undertaking the review has the independence and authority to review the decision.

The internal reviewer may affirm, vary or set aside the decision. If the internal reviewer sets aside the decision, they may make another decision they think is appropriate. The decision of the internal reviewer is known as the ‘decision on review’. The decision on review takes effect on the day specified in the decision on review, or if the day is not specified, the day the decision on review was made.

After a decision on review is made under this clause, the internal reviewer must give the applicant a written notice containing the terms of the decision, the reason for the decision and notice of the applicants rights to have the decision reviewed by the Administrative Appeals Tribunal. This notice requirement ensures that a person is able to understand the decision and is aware of his or her rights.

Failure to provide this notice does not affect the validity of the decision. As decisions made under the Bill provide for the collection of export charges necessary to support Australia’s system for the control of exported goods it is not appropriate for such decisions to be found invalid because notice was not provided to the person whose interests are affected by the decision.

Clause 18        Secretary may require further information from review applicants

This clause enables the Secretary to require the person who made an application for review under clause 17, to provide further information about the application . This request must be made by written notice. This clause also allows the Secretary to refuse to consider the application until the information is provided.

 

This will enable the Secretary to obtain additional information to assist in reviewing the decision, where required.

 

Clause 19        Review by the Administrative Appeals Tribunal

This clause enables a person who is not satisfied with a decision made by the Secretary under subclause 12(2) to suspend or revoke an export control instrument. It also enables a person who is not satisfied with a decision made by a delegate of the Secretary in relation to subclause 12(2) as part of an internal review (clause 17).

 

An application for review can only be made by, or on behalf of, a person that a decision under subclause 12(2) or clause 17 was made. This means only a person or their representative that would have had a material impact by the decision can request for it to be reviewed, rather than a person whose interests may be affected by the decision.

The rational for this is that a person who has had an export control instrument suspended or revoked should have the right to seek administrative review. It would however, be administratively burdensome to allow any member of the public who may be affected by, or interested in, the decision (because they can no longer purchase the exported good as a result of the suspension or revocation of that instrument) to apply for review of the decision.

Clause 20        Protection from civil proceedings

This clause provides that the Commonwealth or a protected person exercising powers under the Bill will have protection from civil proceedings for anything done, or omitted to be done, in good faith. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty. Protection from civil proceedings allows those required under the Bill to make decisions and take action to manage exported goods appropriately, and to do so without the fear of civil proceedings being taken against them.

 

The term ‘in good faith’ means without malice or without intent to defraud. Protection from civil proceedings does not extend to criminal offences-for example, theft or intentional destruction of documents or property.

 

Clause 21        Delegations by Secretary

This clause provides that the Secretary may delegate in writing any functions or powers that are conferred on the Secretary to employees of the department holding, or acting in, the position of a Senior Executive Service  employee (as defined in the Acts Interpretation Act 1901 ).

 

This is to ensure that decision-making powers under this bill are carried out efficiently and effectively in an operational environment where the Secretary may not have the capacity to undertake all functions and powers conferred upon him or her by this bill.

 

Subclause 21(2) provides an additional level of assurance that powers exercised by the delegate are exercised appropriately and consistently.

 

Clause 22        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 Bill. This will allow for more detailed and specific aspects of the Bill relating to the operation of provisions to be included in regulations instead of the Bill.

 

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 Bill and the manner in which any notice, direction, requirement or other instrument granted, given or made under this Bill may be produced to a person or body.