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Imported Food Charges (Collection) Bill 2015

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2013-2014-2015

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

IMPORTED FOOD CHARGES (COLLECTION) BILL 2015

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

IMPORTED FOOD CHARGES (COLLECTION) BILL 2015

 

General Outline

 

The Imported Food Charges (Collection) Bill 2015 (the collection bill) forms part of a legislative package to support Australia’s system for the control of imported food 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 Imported Food Charges (Imposition—General) Bill 2015, the Imported Food (Imposition—Excise) Bill 2015 and the Imported Food (Imposition—Customs) Bill 2015 (the imposition bills).

 

The importation of food is managed under the Imported Food Control Act 1992 (the Imported Food Control Act) and related delegated legislation. The Imported Food Control Act provides for the management of food entering Australia to ensure the compliance of food with Australian food standards and the requirements of public health and safety. The volume of food imports continues to grow, as does the range of imported food and the variety of supply chains used by Australian food importers. These and many other factors all contribute to the complexity of managing the standards of imported food.

 

Monitoring compliance with the arrangements under the Imported Food Control Act 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.

 

The Department of Agriculture (department) currently recovers the costs of its key imported food activities provided to persons that import or deal with imported food (for example, inspection, analysis, treatment and destruction) through fees imposed in the Imported Food Control Regulation 1993 , made under section 43 of the Imported Food Control Act.

 

The collection bill is part of a legislative package that is designed purely as a cost recovery mechanism. It will create an appropriate legal structure to allow for the recovery of costs through the imposition of charges as a cost recovery levy, rather than a fee. Levies will be used to recover costs of activities provided to a group of importers. The legislation will sit alongside the existing cost recovery fees that apply to those activities provided directly to an individual or business or organisation.

 

Collectively, these cost recovery arrangements support fee and levy arrangements which are efficient and equitable to persons who import or who deal with imported food, drive down the costs and support the expansion and improvement of the department’s imported food activities.

 

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

 

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

 

The collection bill provides the Commonwealth with powers to refuse service under the Imported Food Control Act 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 a food control certificate, compliance agreement or any other approval given under the Imported Food Control 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.

 

 

Financial Impact Statement

The collection bill has no financial impact on the Commonwealth, or persons who import or deal with imported food. The collection bill does not set the amount of the charges and will not impose any financial impacts.

 



 

Statement of Compatibility with Human Rights

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

 

Imported Food 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 imported food 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 collection bill will enable the Commonwealth to recover costs for the provision of activities, such as approving and administering compliance agreements under the Imported Food Control Act.

 

The provision of these activities ensures that imported food is compliant with Australian food standards and the requirements of public health and safety. These activities are vital to the promotion of the rights to health, life and an adequate standard of living, including food, in the International Covenant on Economic, Social and Cultural Rights .

 

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 cost recovery levy, rather than a fee. The legislation will sit alongside the existing cost recovery fees that apply to those activities provided directly to a person who imports or deals with imported food.

 

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

 

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 a food control certificate, compliance agreement or any other approval given under the Imported Food Control 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 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 food imports appropriately, to do so without the fear 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 imported food control instruments) 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 states 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 imported food 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.

 

Clause16 of the collection bill protects the ability of the Commonwealth to collect charges related to the importation of food 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 18 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 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 . 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.

 

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 imported food control instruments such as a food control certificate or compliance agreement and the withdrawal of services to recover unpaid imported food charges or fees. These provisions can only be imposed when a person is liable to pay an imported food 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 import or deal with imported food 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 imported food control instrument and detail the review mechanism. A suspension or withdrawal of service is only in place until the imported food 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 import food and the Commonwealth, and allows the Commonwealth to suspend or revoke a food 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 food 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 by 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 . The collection bill enables the Commonwealth to recover costs for the provision of key activities related to imported food which are vital to the promotion of the rights to health, life and to an adequate standard of living, including food, in the International Covenant on Economic, Social and Cultural Rights . 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 collection bill, when enacted, may be cited as the Imported Food 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 certain external territories

This clause provides that the Bill does not extend to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands unless the Imported Food Control Act is extended to those territories.

 

This ensures that charges related to the import of food can only be imposed in those jurisdictions that the Imported Food Control Act is in effect.

 

Clause 6          Definitions

This clause provides definitions for the collection bill. This clause also provides that an expression used in this Bill that is also used in the Imported Food Control Act has the same meaning.

 

Notes are provided below on each definition.

 

Finance Minister

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

 

Imported food charge

This definition provides that an ‘imported food change’ has the meaning of a charge imposed under section 6 of the Imported Food Charges (Imposition—Customs) Act 2015 or Imported Food Charges (Imposition—General) Act 2015 or under section 6 of the Imported Food Charges (Imposition—Excise) Act 2015 .

 

Subclause 6(2) further provides that other expressions used in this Bill that are defined in the Imported Food Control Act have the same meaning stated in the Imported Food Control Act. This ensures that there is consistency in application and interpretation of terms between the two Acts.

 

Imported food control instrument

This definition provides that an imported food control instrument includes any one of the following: a food control certificate, an approval or determination relating to a quality assurance agreement, a compliance agreement, or an approval given to a person under the Imported Food Control Act.

 

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 11(1).

 

Protected person

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

 

 

Part 2—Paying imported food charges

 

Clause 7          Simplified outline of this Part

This clause provides a concise outline of the Part.

 

Clause 8          Paying imported food charges

This clause provides that the regulations may prescribe the time when an imported food charge is due and payable and prescribe the rules relating to the liability of agents to pay an imported food 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          Commonwealth liable to pay imported food charges and late payment fees

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 activities performed in relation to imported food under the Imported Food Control 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(4) 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 imported food 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 an imported food 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 an imported food charge remains unpaid and may also be held against one or more persons who is liable to pay an imported food charge.

 

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

 

Clause 12        Action by the Secretary if imported food charges or late payments fees are unpaid.

This clause provides the Secretary with the authority to suspend or revoke an imported food control instrument and/or give a direction not to provide a person a range of activities until receipt of an imported food 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 imported food 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 imported food control instrument in relation to a person that has not paid an imported food charge or late payment fee which is due and payable. An imported food control instrument includes a food control certificate, a compliance agreement and approvals described in regulations to the Imported Food Control Act. This action, in effect prevents a person from undertaking activities under the Imported Food Control Act relating to the importation of food. A suspension of an instrument is only in place until the applicable imported food charges or late fees are paid.

 

The Secretary may give a 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 imported food control instrument remains valid. Failure to provide such a notice, irrespective of the circumstances, does not invalidate the decision to suspend or revoke the imported food control instrument.

 

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

 

This clause does not limit any other power of the Secretary under the Imported Food Control Act to suspend or revoke an approval or authorisation for any other reason.

 

Subclause 12(5) provides the Secretary with the authority to give a direction not to give a food control certificate, issue an imported food inspection advice, give an approval, make a determination relating to a quality assurance agreement, enter into a compliance agreement or carry out specified activities or specified kinds of activities under the Imported Food Control Act. This clause has the same effect as subclause 12(2) in preventing a person from undertaking activities under the Imported Food Control Act relating to the importation of food into Australia. There is no requirement to issue a notice under this clause, as no imported food control instrument has been suspended or revoked.

 

A direction under subclause 12(5) is not reviewable by way of internal review (subclause 17) or through the Administrative Appeals Tribunal (subclause 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 imported food 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 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 .

 

Clause 13        Recovery of imported food charges and late payment fees

This clause provides the Commonwealth with the ability to recover imported food charges and/or late payment fees that are due and payable through action in a relevant court as a debt due to the Commonwealth. This clause 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 imported food 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 arrangements for imported food. 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 over recovery is addressed.

 

The decision to not remit charges and late payment fees is not subject to review. Imported food 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 imported food 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.

 

A person who contravenes the requirement of the notice commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is 30 penalty units.

 

 

Clause 17        Internal review of delegate’s decisions to suspend or revoke imported food 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 imported food 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 day the original decision first came to the notice of the applicant, 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 a review is made, 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 imported food charges necessary to support Australia’s system for the control of imported food 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 of 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 Administration 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 imported food control instrument. It also applies to 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 imported food 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 a food item 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 food imports appropriately, and to do so without 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        Delegation 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 the collection 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 the collection 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 Bill, 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.