Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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.
1
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.
2
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.
3
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.
4
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.
5
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
6
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.
7
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.
8
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.
9
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.
10
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.
11
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.
12
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.
13
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.
14