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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PRIMARY INDUSTRIES LEVIES AND CHARGES COLLECTION AMENDMENT
BILL 2018
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture and Water Resources,
the Hon. David Littleproud MP)
THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM
PRESENTED TO THE HOUSE OF REPRESENTATIVES ON 28 MARCH 2018 AND
INCORPORATES AMENDMENTS RESPONDING TO CONCERNS RAISED BY THE
SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS IN SCRUTINY
DIGEST NO. 5 OF 2018 DATED 9 MAY 2018
PRIMARY INDUSTRIES LEVIES AND CHARGES COLLECTION AMENDMENT
BILL 2018
GENERAL OUTLINE
The Primary Industries Levies and Charges Collection Amendment Bill 2018 (the Bill)
amends the Primary Industries Levies and Charges Collection Act 1991 (the Act) to improve
the collection and reporting of agricultural levies and charges, ensure consistency between
legislation and industry changes, and further support the effective operation of levy payer
registers.
Intermediaries
When the Act commenced in 1991 the concept of intermediaries was based on existing
practices, for example a wool broker, which did not contemplate the adoption of modern
buying and selling methods. Leviable commodities are now being traded using platforms,
such as online marketplaces, and the way the legislation defines intermediaries needs to be
updated to accurately reflect modern business practices.
The Bill will provide clarity for agricultural industries by allowing the Secretary of
the Department of Agriculture and Water Resources (the Secretary) to determine certain acts
which, when performed, would make a person liable to collect and report levies and charges.
This will allow the efficient and effective collection of levies and charges at the optimal point
in the supply chain, regardless of the arrangement used to facilitate the transaction. This will
ensure the policy intention of the Act and industry needs continue to be met.
These amendments align with the Secretary's existing delegated powers under the Act to
support the efficient administration and operation of the levy system, for example, entering
into collection agreements, and granting exemptions and remissions. Allowing the Secretary
to determine acts of intermediaries will ensure that the legislative framework can readily
respond to innovation throughout the supply chain and minimise the administrative burden
placed on Australian producers.
Further, the Minister for Agriculture and Water Resources (the Minister) may issue
guidelines which must be published on the Department of Agriculture and Water Resources'
(the Department) website to which the Secretary must have regard in making a determination
in relation to certain acts. These guidelines are intended to provide operational guidance to
assist the Secretary in determining acts of intermediaries.
While there is currently no additional consultation requirement in relation to a determination
made under section 7A, the Department has a proven and well-established system of
consultation with Australian producers and intermediaries and this will be leveraged prior to
making such a determination.
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Levy payer registers
The Act was amended in 2016 to remove the legislative impediments to establishing levy
payer registers. These amendments allowed the rural research and development corporations
(RDCs) that receive levy funds, to identify and consult directly with levy payers.
The Bill makes minor amendments to support the effective operation of levy payer registers,
including to further protect the privacy of levy payer information. The Act currently allows
an eligible recipient, with the written approval of the Secretary, to disclose information from
a levy payer register to a third party. The Bill will allow the Secretary to impose conditions
on the disclosure of this information and to revoke the approval where those conditions are
breached. This will safeguard the proper use and protection of levy payer information while
facilitating disclosures that may not have previously been possible, where appropriate. The
amendments will also subject these decisions to reconsideration and review in accordance
with the Act, in line with the government's policy of providing merits review for decisions
that affect individuals' rights and interests.
The Bill allows the Secretary to provide, by legislative instrument, for commodity-specific
information relating to the production or processing of a collection product to be collected for
a levy payer register. This could include information about the area of production, inputs or
processing methods. The legislative instrument will be subject to sunsetting provisions and
disallowance. The Act already permits the Secretary to determine such details for the
purposes of disclosure to an eligible recipient.
The Bill allows the publication of statistical information about levies and charges to inform
agricultural industries and other stakeholders about the cost-benefit aspects of the levy and
charge system.
The Bill makes minor technical amendments. These include adding the Australian Company
Number (ACN) of a person who has paid, or is liable to pay, levy to an eligible recipient and
adding notes referring to the Acts Interpretation Act 1901.
FINANCIAL IMPACT STATEMENT
This Bill will have no financial impact on the Australian Government Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
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.
The full statement of compatibility with human rights is attached to this explanatory
memorandum.
3
ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS
the Act Primary Industries Levies and Charges Collection Act
1991
the Department the Department administered by the Minister
administering the Primary Industries Levies and Charges
Collection Act 1991
the Minister the Minister administering the Primary Industries Levies
and Charges Collection Act 1991
the Privacy Act Privacy Act 1988
the Secretary the Secretary of the Department administered by
the Minister administering the Primary Industries Levies
and Charges Collection Act 1991
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NOTES ON AMENDMENTS
Preliminary
Clause 1 Short Title
Clause 1 of the Bill provides for the short title of this Act to be the Primary Industries Levies
and Charges Collection Amendment Act 2018.
Clause 2 Commencement
Clause 2 of the Bill provides for the commencement of each provision in the Bill, as set out
in the table.
Subclause 2(1) provides that each provision of the Bill specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the table. Any
other statement in column 2 has effect according to its terms.
Item 1 in the table provides that the whole of the Bill commences on the day after the Bill
receives the Royal Assent.
Clause 3 Schedules
Clause 3 of the Bill provides that legislation specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item in a
Schedule to the Bill has effect according to its terms.
Schedule 1--Amendments
Primary Industries Levies and Charges Collection Act 1991
Item 1 After paragraph 7(1)(c)
Item 1 inserts paragraph 7(1)(ca), which provides for additional acts determined by
the Secretary, under item 5, as those of intermediaries. Subsection 7(1) relates to
intermediaries that buy or sell products on behalf of a producer and of those that buy products
from a producer other than through a buying or selling agent.
Item 2 After paragraph 7(2)(b)
Item 2 inserts paragraph 7(2)(ba), which provides for additional acts determined by
the Secretary, under item 5, as those of intermediaries that process products, declared by the
Regulations, into higher value products (processing intermediaries).
Item 3 Subsections 7(3) and (3A)
Item 3 repeals and substitutes subsections 7(3) and (3A).
Subsections 7(3) and (3A) have been redrafted for consistency with subsections 7(1) and (2).
The new subsections also provides for additional acts determined by the Secretary, under
item 5, as those of intermediaries. Subsection 7(3) will enable the capture of entities that act
like exporting intermediaries, where their actions are not already prescribed by the Act.
Subsection 7(3A) will apply in the same way to importing intermediaries.
5
Item 4 After paragraph 7(6)(e)
Item 4 includes a person who does an act as determined by the Secretary in an instrument
under subsection 7A(1), in a list of intermediaries that are not liable to pay levy or charge if
the levy or charge has already been paid.
Item 5 After section 7
Item 5 inserts a new section 7A Secretary's determination of intermediaries.
The introduction of section 7A will enable the Secretary to, by legislative instrument,
determine acts as those of intermediaries. Section 7 of the Act does not describe all modern
methods for buying, selling, importing or exporting agricultural produce as being relevant
acts of intermediaries. This item aligns with other powers already provided to the Secretary in
the Act to support the efficient administration and operation of the levy system and allow the
legislative framework to readily respond to innovation throughout the supply chain.
Legislative instruments made under subsection 7A(1) will be subject to disallowance and
sunsetting in accordance with the Legislation Act 2003.
The Secretary, in determining acts of intermediaries, must have regard to any guidelines that
may be issued by the Minister under subsection 7A(3). These guidelines will include
considerations such as Australia's obligations as a Member of the World Trade Organization
relating to importation and exportation.
Subsection 7A(4) is included to assist readers in understanding that the Minister's guidelines
are not legislative instruments within the meaning of subsection 8(1) of the
Legislation Act 2003. These guidelines will not have legislative character as they will not
alter the content of the law or create or affect a privilege, interest or right. Instead, the
guidelines will contain operational guidance material to assist the Secretary in making
decisions on a section 7A determination to ensure that only relevant organisations are
captured. While such guidelines if issued, are not legislative instruments, the Secretary's
determination of acts of intermediaries will be a legislative instrument that is subject to
disallowance.
Subsection 7A(5) requires the Minister, having made any such guidelines relating to the
determination of acts of intermediaries, must cause the guidelines to be published on
the Department's website. This is to provide transparency and accountability for participants
in the levy and charge system.
Item 6 Section 27 (heading)
Item 6 repeals and substitutes the heading Publishing of information.
The substituted heading 27 Giving of information about returns, intermediaries and receipt of
levy or charge will assist readers in understanding that the original intent is to give, rather
than to make public, levy and charge payer information to eligible bodies or persons.
The heading also provides more detail on the type of information to be given, and
distinguishes itself from information given in section 27A Giving of information about levy
payers and charge payers.
Item 7 Subsection 27(1)
Item 7 omits "may publish" and substitutes this with "may give the following information" to
reflect the original intent of section 27 to give information to eligible bodies or persons.
6
Item 8 Paragraph 27(1)(a)
Item 8 omits "or" between paragraph (a) and (b) to enable an authorised person to give both
sets of information prescribed by paragraphs 27(1)(a) and (b), rather than one or the other. It
is often necessary to give the information provided by paragraphs 27(1)(a) and (b) to those
entities listed in paragraphs 27(1)(c),(d) and (e). Omitting the 'or' removes the limitation of
either one set of information or the other being given and now allows, where necessary, both
sets of information being provided.
The information in paragraphs 27(1)(a) and (b) relates to identifying information about
people who submit levy and charge returns and the amount of levy or charge paid, including
by state or region.
Item 9 Subsection 27(2)
Item 9 omits "publication" and substitutes this with "giving" to reflect the original intent of
section 27 to give information to eligible bodies or persons.
Item 10 Paragraph 27A(1)(a)
Item 10 omits "and ABN" and substitutes this with "ABN (if any) and ACN (if any)", which,
under subsection 27A(1) of the Act, will enable an authorised person in the Department to
give the Australian Company Number (ACN) of a levy or charge payer to an eligible
recipient listed under subsection 27A(2) of the Act.
This amendment corrects an inconsistency between information that is already collected in
line with the Regulations and information permitted to be given under subsection 27A(1) of
the Act.
Item 11 At the end of subsection 27A(3)
Item 11 introduces a note at the end of subsection 27A(3) of the Act.
The note will assist readers in understanding that the information the Secretary may
determine in a legislative instrument, and that may then be given by an authorised person to
an eligible recipient, may differ between collection products, in line with subsection 33(3A)
of the Acts Interpretation Act 1901.
Item 12 Subsection 27A(4) (heading)
Item 12 repeals the heading Definition and substitutes this with Definitions to reflect the
addition of a second term to this subsection.
This addition is to define a new term introduced at item 10, which adds ACN as levy payer
information that, under subsection 27A(1) of the Act, may be disclosed to an eligible
recipient listed in subsection 27A(2) of the Act.
Item 13 Subsection 27A(4)
Item 13 inserts a definition for ACN, a new term introduced at item 10, which adds ACN as
levy payer information that, under subsection 27A(1) of the Act, may be disclosed to an
eligible recipient listed in subsection 27A(2) of the Act.
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Item 14 After subsection 27B(4)
Item 14 inserts subsections 27B(4A), (4B), (4C) and (4D) after subsection 27B(4) of the Act.
Subsection 27B(4) of the Act prohibits disclosure of levy payer information provided to an
eligible recipient under subsection 27A(1) of the Act to another party without the written
approval of the Secretary.
Subsection 27B(4A) allows the Secretary to make an approval in writing under
subsection 27B(4) of the Act subject to conditions. An eligible recipient would be required to
comply with those conditions in releasing levy payer information to a third party.
Conditions could include setting a limited timeframe in which the disclosure is permitted; the
particular types of levy payer information that may be disclosed; or a requirement to put in
place an agreement with the third party that sets out administrative arrangements for the
information's disclosure and use.
Subsection 27(4B) allows the Secretary to revoke an approval given under subsection 27B(4)
of the Act to disclose information to a third party that is subject to conditions if the
information is not used in accordance with the conditions of the approval.
Subsection 27(4C) requires the Secretary to advise the holder of the approval--the eligible
recipient--of the day from which the eligible recipient may no longer disclose levy payer
information to the third party.
These amendments aim to further protect the privacy and security of levy payer information.
They do not limit the disclosure of an individual's information to the person to whom it
relates.
Subsection 27(4D) indicates that the effect of subsection 33(3) of the Acts Interpretation
Act 1901 headed 'Power to make instrument includes power to vary or revoke instrument' is
not restricted by subsection 27(4B). This clarifies that enabling the Secretary to revoke a
written approval on the specific basis that conditions are breached does not limit his or her
ability to revoke an approval generally.
Item 15 After section 27B
Item 15 inserts section 27C Making public any information of a statistical nature, after
section 27B of the Act.
This clarifies that an authorised person may publish statistics that relate to levies or charges
received or receivable by the Commonwealth. Data is anonymised and individual levy payers
are not identified in statistical publications.
The publishing of this information to industry stakeholders, representative organisations, levy
and charge payers and the Australian taxpayer will facilitate an assessment of the cost-benefit
aspects of the levy and charge system, and provide an overview of the effectiveness, use and
scale of the system.
Item 16 Subsection 28(9) (after paragraph (a) of the definition of relevant
decision)
Item 16 inserts paragraphs 28(9)(b), (c) and (ca) into section 28 of the Act, Reconsideration
and review of decisions.
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These paragraphs expand the meaning of relevant decision to include decisions made by
the Secretary regarding approvals to disclose levy payer information under subsection 27B(4)
of the Act. This means that the reconsideration and review process in the Act will apply to
those decisions.
Specifically, the Secretary's decision to give an approval to an eligible recipient to disclose
levy payer information to a third party; to specify conditions in an approval; and, to revoke an
approval under subsection 27B(4) of the Act will be subject to reconsideration and review
under the amended section 28 of the Act.
Including the Secretary's decisions under subsection 27B(4) of the Act in the decisions
subject to review under section 28 of the Act aligns with the government's policy of
providing merits review for decisions that affect individuals' rights and interests.
Item 17 Subsection 29(1)
Item 17 inserts "7A" after "section".
The amendment will include the Secretary's power to make a legislative instrument under
section 7A Secretary's determination of intermediaries in the powers that the Secretary
cannot delegate to a person who holds an office in the Department.
Item 18 Subsection 29(1)
Item 18 omits "or 27B" and substitutes this with "27B or 32".
The amendment will include the Secretary's power to make a legislative instrument under
section 32 of the Act, Returns under the regulations, in the powers that the Secretary cannot
delegate to a person who holds an office in the Department.
Item 19 Subsection 29(1A)
Item 19 omits "power under subsection 27B(4)" and substitutes this with "powers under
section 27B".
This amendment enables the Secretary to delegate the powers under section 27B of the Act to
a Senior Executive Service employee at, or acting at, a Band 1 or 2 level in the Department.
This will allow the Secretary to delegate the powers introduced at Item 14 to impose
conditions on an approval and to revoke that approval if conditions are breached. It maintains
the Secretary's ability to delegate the existing power in the Act to give an approval to an
eligible recipient to disclose levy payer information to a third party. This further supports the
efficient operation of levy payer registers.
The Bill allows for the Secretary to delegate powers under section 27B as these matters relate
to the administrative operation of eligible recipients.
Item 20 After section 31
Item 20 inserts a new section 32 Returns under the regulations.
In some limited cases, additional commodity-specific information may be required to be
collected in a return lodged under the Regulations for the purposes of levy payer registers.
For example, this could include information on the area of production, inputs or processing
methods used in relation to a particular commodity.
9
Subsection 32(1) requires the provision of that additional information in a levy or charge
return if the Secretary makes a legislative instrument under subsection 32(3).
Subsection 32(2) provides that the additional details required in a return under the Secretary's
determination in subsection 32(3) should be in addition to the information already required to
be included in a return under the Regulations.
Subsection 32(3) empowers the Secretary to make a legislative instrument, which determines
the additional information to be included in a levy or charge return.
The note refers readers to subsection 33(3A) of the Acts Interpretation Act 1901 to clarify
that a legislative instrument made under subsection 32(3) of the Bill may include different
details for each collection product for which a determination is made under subsection 32(3).
Item 21 Application and saving provisions
Paragraph (1) indicates that the amendments to section 7 of the Act relate to the liability of
intermediaries determined in an instrument made under subsection 7A(1). The liability of
such intermediaries to pay levy or charge in accordance with section 7 begins on or after the
day the instrument determining that they are intermediaries commences.
Paragraph (2) indicates that until this Act has commenced on the day after the Royal Assent,
any regulations enabled by subsections 7(3) and (3A) of the Act as repealed by this Bill
remain valid and in force. This means that relevant levy or charge returns submitted before
the Royal Assent will also meet the requirements of the substituted subsections 7(3)
and (3A).
Paragraph (3) indicates that the amendments to sections 27 and 27A apply in relation to the
giving of information on or after the commencement of this item (whether the information
was obtained before, on or after that commencement), being the day after the Royal Assent.
Paragraph (4) indicates that the new subsections 27B(4A) to (4D) apply in relation to
approvals given on or after the commencement of this item, being the day after
the Royal Assent.
Paragraph (5) indicates that the new section 27C, relating to the publishing of information of
a statistical nature, applies to information obtained before, on or after the commencement of
this item, being the day after the Royal Assent.
Paragraph (6) indicates that the amendment of section 28 relating to reconsideration and
review of decisions made under subsection 27B(4) applies in relation to decisions made on or
after the commencement of this item, being the day after the Royal Assent.
Paragraph (7) indicates that subsection 32(1) applies to a return that is required to be lodged
under the Regulations in relation to a collection product for a period beginning on or after the
day on which the first instrument made under subsection 32(3) of that Act in relation to that
collection product commences.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
PRIMARY INDUSTRIES LEVIES AND CHARGES COLLECTION AMENDMENT
BILL 2018
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Primary Industries Levies and Charges Collection Amendment Bill 2018 (the Bill)
amends the Primary Industries Levies and Charges Collection Act 1991 (the Act), to improve
the collection and reporting of levies and charges, ensure consistency between legislation and
current industry practices, and further support the effective operation of levy payer registers.
The Bill will enable:
the Secretary of the Department of Agriculture and Water Resources (the Secretary) to
determine certain acts which, when performed, would make a person liable to collect
and report levies and charges;
an authorised person appointed under section 26 of the Act to publish statistical
information collected under the Primary Industries Levies and Charges Collection
Regulations 1991 (the Regulations);
the Secretary to, by legislative instrument, provide for the collection of production or
processing information relating to a collection product;
the Australian Company Number (ACN) of a person who has paid, or is liable to pay,
levies or charges in respect of a collection product to be disclosed by an authorised
person under section 27A of the Act to an eligible recipient;
the Secretary to impose conditions on the approval of the disclosure of information
about levy and charge payers by eligible recipients to third parties in section 27B of
the Act;
the Secretary to revoke the approval for an eligible recipient to disclose information
about levy and charge payers to a third party under section 27B of the Act if conditions
of the approval are breached;
a person affected and dissatisfied by a decision of the Secretary to approve the release
of, impose conditions on the release of, or to revoke access to, levy payer information
to seek review and reconsideration of that decision under section 28 of the Act.
11
Human rights implications
The Bill engages the right to protection against arbitrary and unlawful interferences with
privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
This right may be subject to permissible limitations, provided they are authorised by law and
not arbitrary. In order for an interference with the right to privacy to be permissible, the
interference must be authorised by law, be for a reason consistent with the provisions, aims
and objectives of the ICCPR, and be reasonable in the particular circumstances. The United
Nations Human Rights Committee has interpreted 'reasonableness' in this context to imply
that any interference with privacy must be proportional to the end sought and be necessary in
the circumstances of any given case. The collection, use, storage and sharing of personal
information engages this right.
Subsection 27A(1) of the Act sets out information that may be disclosed by an authorised
person to an eligible recipient including the name, address, contact details and Australian
Business Number of a levy or charge payer. This amendment will allow disclosure of a levy
payer's ACN in addition to the information which may be disclosed under subsection 27A(1).
As primary producers are often family farms, levy payer information would sometimes be
personal information, as defined by subsection 6(1) of the Privacy Act 1988, and would allow
for an individual to be identified and contacted by eligible recipients.
The Privacy Act 1988 regulates the handling of personal information about individuals and
implements Australia's obligations, as a party to the ICCPR, regarding privacy. As Australian
Privacy Principles entities, eligible recipients must use personal information in accordance
with Schedule 1 of the Privacy Act.
Further, section 27B of the Act sets out the purposes for which levy payer information
provided to eligible recipients under section 27A of the Act can be used. This is limited to
matters relating to the development and maintenance of levy payer registers; the ability to
publish information of a statistical nature; and for any functions required of the recipient
under Commonwealth law or under an agreement that eligible recipients have with the
Commonwealth. On this basis, the disclosure of personal information under the Bill is not
arbitrary, as it is only permitted for specific uses, which directly relate to the operations of
eligible recipients.
Subsection 27B(4A) of the Bill enables the Secretary to impose conditions on approvals to
disclose information, about levy and charge payers, by eligible recipients to third parties.
The Bill also enables the Secretary to revoke an approval where there has been a breach of
these conditions. The proposed amendments will further safeguard the proper use and
protection of levy and charge payer information. The Bill will also allow the review of a
decision made by the Secretary under section 28 of the Act.
On this basis, the proposed measures in the Bill are consistent with the right to protection
against arbitrary and unlawful interferences with privacy under Article 17 of the ICCPR.
Conclusion
The Bill is compatible with human rights because, to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
(Circulated by authority of the Minister for Agriculture and Water Resources,
the Hon. David Littleproud MP)
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