PRIMARY INDUSTRIES LEVIES AND CHARGES DISBURSEMENT BILL 2023 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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PRIMARY INDUSTRIES LEVIES AND CHARGES DISBURSEMENT BILL 2023

2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES PRIMARY INDUSTRIES LEVIES AND CHARGES DISBURSEMENT BILL 2023 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Murray Watt)

PRIMARY INDUSTRIES LEVIES AND CHARGES DISBURSEMENT BILL 2023 GENERAL OUTLINE The Primary Industries Levies and Charges Disbursement Bill 2023 (the Bill) forms part of a package of Bills to modernise the agricultural levies legislative framework. The Bill would enable disbursement of amounts of levy and charge components for investment in strategic activities for the benefit of levied industries. It would also provide a mechanism for the Commonwealth to make matching payments for research and development (R&D). The Bill, in combination with the following Bills, would provide the overarching legislative framework for the national agricultural levy system: • Primary Industries (Customs) Charges Bill 2023, Primary Industries (Excise) Levies Bill 2023, Primary Industries (Services) Levies Bill 2023 (the Imposition Bills), and • Primary Industries Levies and Charges Collection Bill 2023 (the Collection Bill). The agricultural levy system is a long-standing partnership between industry and the Australian Government to facilitate industry investment in strategic activities. The system has been in place since 1989. Excise levies and customs charges are collected from farmers, producers, processors and exporters. The Department of Agriculture, Fisheries and Forestry publishes levy guidelines on its website to support agricultural, fisheries and forestry industries through the process of developing a proposal to establish or amend an agricultural levy or charge. The agricultural levy system allows agricultural, fisheries and forestry industries to collectively invest in research and development, marketing, biosecurity activities, biosecurity responses and residue testing activities. These investments are made by levy recipient bodies on behalf of relevant industries. Without this arrangement most individual producers could not invest effectively in these activities. The Australian Government also matches industry investment in R&D up to legislated limits by providing payments to the levy recipient bodies. These levy recipient bodies are colloquially known as research and development corporations (RDCs). A target of investment in R&D equivalent to 1% of an industry's gross value of production (GVP) was identified as the desired level of investment when the legislative framework first was established in 1989. This target is still supported by the GVP limit on matching funding today. Over time, the agricultural levies legislation has become overly complex and inconsistent. There are more than 50 pieces of legislation governing over 110 levies across over 75 commodities and 18 levy recipient bodies. There are also some redundant and out of date provisions. A 2018 review of the agricultural levies legislation found the legislative framework serves the objectives of the levy system and is necessary for a successful industry-government arrangement. Despite this, the review found the current legislation is ineffective in meeting industries' needs now and into the future. The package of Bills would modernise the agricultural levies legislative framework to provide contemporary, flexible and efficient legislation that would better support industries' needs in the future. 2

The Bill would replace disbursement provisions and related provisions from 13 Acts: • Primary Industries Research and Development Act 1989 (PIRD Act); Wine Australia Act 2013 (Wine Act); Australian Meat and Live-stock Industry Act 1997 (AMLI Act); Dairy Produce Act 1986; Egg Industry Service Provision Act 2002; Forestry Marketing and Research and Development Services Act 2007; Horticulture Marketing and Research and Development Services Act 2000; Pig Industry Act 2001; Sugar Research and Development Services Act 2013; Wool Services Privatisation Act 2000; (the RDC Acts) • Australian Animal Health Council (Live-stock Industries) Funding Act 1996; Plant Health Australia (Plant Industries) Funding Act 2002; and National Residue Survey Administration Act 1992. These Acts or parts of these Acts would be repealed by the Primary Industries (Consequential Amendments and Transitional Provisions) Bill 2023. The Bill would be structured to provide separate provisions for the disbursement of different components of levies and charges: • Levy and charge components raised for R&D and marketing would be disbursed to declared and statutory recipient bodies, colloquially also known as industry-owned and statutory RDCs. Most of these bodies would also receive Commonwealth matching payments. • Levy and charge components raised for biosecurity activities and biosecurity response activities would be disbursed to Animal Health Australia (AHA) and Plant Health Australia (PHA). • Levy and charge components raised for residue testing would be credited to the National Residue Survey (NRS) Special Account. Key improvements to the matching funding arrangements compared with the RDC Acts include: • The removal of the total levies limit, one of three legislated limits on matching funding, to increase consistency and simplicity of matching funding arrangements. • The determination of the GVP limit based on data for the three previous financial years rather than the current and two previous financial years to increase funding certainty to industry. • The explicit provision for carry-over of eligible R&D expenditure to be matched in future years, for all relevant declared and statutory recipient bodies. Industry specific and operational details such as commodity specific levy and charge components, industry specific spending requirements and prescribed goods and services for the calculation of GVP limits would be provided in the rules. 3

CONSULTATION The development of the new Bills has been informed by extensive consultation with industry groups, levy payers, collection agents, and levy recipient bodies: • 2017-18: The department reviewed the levies legislative framework and undertook targeted consultation with 70 stakeholder groups. • 2019-20: The department released the 'Streamlining and modernising agricultural levies legislation - early assessment regulation impact statement' for public consultation. • 2021-22: The department conducted further consultation with industry representatives and bodies that receive levy funding (RDCs, AHA and PHA). This included targeted consultation with RDCs about the proposed approach to the new disbursement legislation. • 2023: Public consultation of the draft Bills. Consultation on the Bills also occurred with relevant Commonwealth agencies during the development of the Bills, including the Australian Bureau of Statistics, the Attorney- General's Department, the Australian Public Service Commission, the Department of Finance, the Department of the Prime Minister and Cabinet, the Federal Court and the Federal Circuit and Family Court of Australia, the Office of the Australian Information Commissioner and Treasury. FINANCIAL IMPACT STATEMENT The Bill is estimated to reduce the Commonwealth's underlying cash balance by $8.4 million over the forward estimates to 2026-27. The impact is based on the removal of the total levies limit which results in an increase in matching funding payments to some recipient bodies. In 2021-22, the Australian Government provided more than $370 million in matching funding to recipient bodies. Matching funding payments are expected to be similar in scale over the forward estimates to 2026-27 but may vary from year to year depending on the amount of R&D investment by RDCs and yearly GVP values. In 2021-22, the department disbursed around $600 million raised from levies and charges imposed on industry to RDCs, AHA, PHA and NRS. Levy and charge payments are expected to be similar in scale over the forward estimates to 2026-27 but may vary from year to year because production volumes or sales values of levied products vary with seasonal and market conditions. Costs associated with the administration of levies are cost-recovered from industry by the department. IMPACT ANALYSIS The Impact Analysis (OBPR22-03525) is attached to the combined Explanatory Memorandum for the Imposition Bills. 4

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 at Attachment A. 5

NOTES ON CLAUSES Part 1--Preliminary Section 1 Short title 1. This section would provide for the short title of the proposed Act to be the Primary Industries Levies and Charges Disbursement Act 2023 (the Act). Section 2 Commencement 2. This section would provide for the commencement of the proposed Act, as set out in the table in subsection 2(1). 3. Item 1 of the table would provide that sections 1 and 2 and anything in this proposed Act not elsewhere covered by the table would commence on the day that the proposed Act receives the Royal Assent. 4. Item 2 of the table would provide that sections 3 to 37 would commence on 1 January 2025. 5. Item 3 of the table would provide that section 38 would commence on the day after the proposed Act receives the Royal Assent. 6. Item 4 of the table would provide that sections 39 to 41 would commence on 1 January 2025. 7. Item 5 of the table would provide that section 42 would commence on the day after the proposed Act receives the Royal Assent. 8. Item 6 of the table would provide that sections 43 to 90 would commence on 1 January 2025. 9. Sections 38 and 42 would provide for funding agreements with companies and funding agreements with statutory recipient bodies. The commencement of these sections on the day after the Act receives the Royal Assent would enable agreements to be entered into from that day. 10. A note to subsection 2(1) would state that the table only relates to the provisions of the proposed Act as originally enacted, and it would not be amended to deal with any later amendments of the proposed Act. 11. Subsection 2(2) would provide that any information in column 3 of the table is not part of the proposed Act. It would clarify that information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the proposed Act. This would allow information to be inserted in column 3 to assist the reader after commencement. Section 3 Simplified outline of this Act 12. The simplified outline is included to assist the reader to understand the substantive provisions of the proposed Act; however, it is not intended to be comprehensive. The reader should rely on the substantive provisions of the proposed Act to which the outline relates. 6

Section 4 General definitions 13. Subsection 4(1) would provide for definitions of certain terms used in the proposed Act. An explanation is provided below for key definitions. agricultural statistics body 14. This definition would provide that agricultural statistics body means the part of the department known as the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES) or, if the rules prescribe a body for the purposes of this definition, that body. AHA commodity/service 15. This definition would provide that AHA commodity/service means the following: an animal product; a plant product, a fungus product or an algal product prescribed by the rules for the purposes of paragraph (b) of this definition, goods that are of a kind consumed by, or used in the maintenance or treatment of, animals; a service that facilitates the production of an animal product. 16. This term would be used in Part 3 of the proposed Act, which provides the funding arrangements for Animal Health Australia (AHA). 17. The option to prescribe plant products, fungus products and algal products as AHA commodity/services would provide flexibility to have health and biosecurity activities for related products managed together by the most appropriate body. For example, if particular plant products are connected to an industry involving animal products, it may be appropriate for AHA to manage the health or biosecurity of those plant products together with the related animal products. Animal Heath Australia 18. This definition would provide that Animal Health Australia means Australian Animal Health Council Limited (ACN 071 890 956). 19. This term would be used in Part 3 of the proposed Act, which provides for the funding of AHA. charge 20. This definition would provide that charge means a charge imposed by regulations under the Primary Industries (Customs) Charges Act 2023. 21. This term would be used throughout the Act, which provides for the disbursement of levy and charge amounts to recipient bodies, AHA, Plant Health Australia (PHA) and credits to the National Residue Survey (NRS) Special Account. Collection Act 22. This definition would provide that Collection Act means the Primary Industries Levies and Charges Collection Act 2023. 23. This term would be used throughout the proposed Act in relation to payment provisions. constitutional trade or commerce 24. This definition would provide that constitutional trade or commerce means trade or commerce: between Australia and a place outside Australia, or among the States, or 7

between a State and a Territory, or between two Territories or within a Territory. 25. This term would be used in the provisions relating to protected information in Part 5 of the proposed Act. declared fishery 26. This definition would provide that declared fishery means a part of the fishing industry that is the subject of a declaration that is referred to in section 5 and is in force. 27. This term would be used in Subdivision B of Division 3 of Part 2, which provides for matching payments to the Fisheries Research and Development Corporation (FRDC). declared fishery levy or charge 28. This definition would provide that declared fishery levy or charge, in relation to a declared fishery, is a levy or charge prescribed by the rules in relation to that fishery. 29. This term would be used in Subdivision B of Division 3 of Part 2, which provides for matching payments to the FRDC. declared livestock export body 30. This definition would provide that declared livestock export body has the meaning prescribed by the rules. 31. This term would be used in Subdivision A of Division 3 of Part 2, which provides for matching payments to most recipient bodies. The Commonwealth is not required to make matching payments to the declared livestock export body unless the rules prescribe otherwise. declared meat processor body 32. This definition would provide that declared meat processor body has the meaning prescribed by the rules. 33. This term would be used in Subdivision A of Division 3 of Part 2, which provides for matching payments to most recipient bodies. The Commonwealth is not required to make matching payments to the declared meat processor body unless the rules prescribe otherwise. declared recipient body 34. This definition would provide that declared recipient body means a body that is the subject of a declaration in force under subsection 39(1). 35. This term would be used in Part 2 of the proposed Act, which provides for the funding of declared recipient bodies which are colloquially also known as industry-owned RDCs. designated primary industry sector 36. This definition would provide that designated primary industry sector, in relation to a declared recipient body or a statutory recipient body, means the following: each primary industry prescribed by the rules in relation to the body; each part of a primary industry, being a part prescribed by the rules in relation to the body. 37. A note to the definition would refer the reader to section 6 in relation to declared recipient bodies. 38. This term would be used in Part 2 of the proposed Act, which provides for the funding 8

of recipient bodies. emergency animal biosecurity response deed 39. This definition would provide that emergency animal biosecurity response deed means the following as in force from time to time: • the government and livestock industry cost sharing deed in respect of emergency animal disease responses made by the Commonwealth and other parties, and executed by the Commonwealth in March 2002 (commonly known as the Emergency Animal Disease Response Agreement); • a deed that relates to an emergency biosecurity response, and that is prescribed by the rules for the purposes of this subparagraph. 40. At the time of introduction of the Bill, the government and livestock industry cost sharing deed referred to above is available at www.animalhealthaustralia.com.au. 41. The term would be used in Subdivision B of Division 2 of Part 3, which provides for the application of payments relating to biosecurity response levy or charge components by AHA. 42. The definition provides flexibility for the Minister to prescribe other future deeds declared for emergency biosecurity responses in the rules. It is appropriate for the Minister to use the rules to prescribe future deeds for these purposes to provide a straightforward process for incorporating any future deeds agreed by parties including the Commonwealth, States and Territories and industry bodies. emergency plant biosecurity response deed 43. This definition would provide that emergency plant biosecurity response deed means the following as in force from time to time: • the Government and Plant Industry Cost Sharing Deed in respect of Emergency Plant Pest Responses, executed by the Commonwealth on 26 May 2005 (commonly known as the Emergency Plant Pest Response Deed); • a deed that relates to an emergency biosecurity response, and that is prescribed by the rules for the purposes of the subparagraph. 44. At the time of introduction of the Bill, the Government and Plant Industry Cost Sharing Deed referred to above is available at www.planthealthaustralia.com.au. 45. This term would be used in Subdivision B of Division 2 of Part 4, which provides for payments relating to biosecurity response. 46. The definition provides flexibility for the Minister to prescribe other future deeds declared for emergency biosecurity responses in the rules. It is appropriate for the Minister to use the rules to prescribe future deeds for these purposes to provide a straightforward process for incorporating any future deeds agreed by parties including the Commonwealth, States and Territories and industry bodies. entrusted person 47. This definition would provide that entrusted person means any of the following: • the Minister; 9

• the Secretary; • an APS employee in the department; • any other person who is employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the department and who is covered by an authorisation in force under subsection 4(2); and • any other person who is employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth, and in a class of persons prescribed by the rules for the purposes of subparagraph (e)(ii) of the definition of entrusted person. 48. This term would be used in Division 3 of Part 5 of the proposed Act, which provides for information management for relevant NRS information. fishing industry 49. This definition would provide that fishing industry has the meaning prescribed by the rules. 50. This term would be used in Subdivision B of Division 3 of Part 2, which provides for matching payments to the FRDC. 51. It is appropriate that the definition of fishing industry is prescribed by the rules as this definition is specific to the fishing industry and FRDC. 52. It is anticipated that the fishing industry would cover the taking, culturing, processing, preserving, storing, transporting, marketing or selling of any living aquatic natural resources of the sea, seabed, rivers, estuaries and waters within Australia. funding agreement 53. This definition would provide that funding agreement means an agreement in force under section 38 or 42. 54. This term would be used in (among other provisions) Division 6 of Part 2 of the proposed Act, which provides for the Minister to enter into funding agreements with recipient bodies. general collected amounts 55. This definition would provide that general collected amounts means amounts prescribed by the rules for the purposes of this definition. 56. This term would be used in Subdivision B of Division 2 of Part 2 of the proposed Act, which provides spending requirements for declared recipient bodies. levy 57. This definition would provide that levy means a levy imposed by regulations under the Primary Industries (Excise) Levies Act 2023, or the Primary Industries (Services) Levies Act 2023. 58. This term would be used throughout the proposed Act, which provides for the disbursement of levy and charge amounts to recipient bodies, AHA, PHA and crediting of levy and charge amounts to the NRS Special Account. 10

main fishing industry 59. This definition would provide that main fishing industry has the meaning prescribed by the rules. 60. This term would be used in Subdivision B of Division 3 of Part 2, which provides for matching payments to the FRDC. marketing activities 61. This definition would provide that marketing activities, in relation to a declared recipient body or a statutory recipient body, means the following: (a) the marketing, advertising or promotion of: a designated primary industry sector in relation to that body, or goods that are the produce, or that are derived from the produce, of a designated primary industry sector in relation to that body; and (b) activities incidental to such marketing, advertising or promotion. 62. The purpose of incidental activities is to cover activities that are connected or associated with marketing activities including operating costs and overheads. 63. This term would be used in Part 2 of the proposed Act, which provides for funding for recipient bodies, including spending requirements for recipient bodies. marketing collected amounts 64. This definition would provide that marketing collected amounts means amounts prescribed by the rules for the purposes of this definition. 65. This term would be used in Part 2 of the proposed Act, which provides for funding for recipient bodies, including spending requirements for recipient bodies. NRS products 66. This definition would provide that NRS products means: • food products; or • products that result from any of the following: o agriculture or the cultivation of land; o the maintenance of animals for commercial purposes; o fishing or aquaculture; o hunting or trapping; o horticulture; o any other primary industry activity; or • any other products that are of a kind used as inputs to the production of products covered by points one and two above; • whether or not the products have been subjected to any operation (including harvesting, chilling, freezing, drying, bottling, packing, canning and preserving). 67. This term would be used in Part 5 of the proposed Act, which provides for funding and 11

information management for the National Residue Survey, including the purposes of the National Residue Survey Special Account. PHA commodity/service 68. This definition would provide that PHA commodity/service means the following: a plant product, a fungus product or an algal product; an animal product prescribed by the rules for the purposes of paragraph (b) of this definition; goods that are of a kind consumed by, or used in the maintenance or treatment of, plants, fungi or algae; goods that are for the use in the production or preparation of nursery products; a service that facilitates the production of a plant product, a fungus product or an algal product. 69. This term would be used in Part 4 of the proposed Act, which provides for funding for PHA. 70. It is anticipated that honey would be prescribed by the rules as a PHA commodity/service. Although honey is an animal product, bee health and biosecurity is relevant to pollination-reliant plant products, and the Australian Honeybee Industry Council is a member of PHA. Plant Health Australia 71. This definition would provide that Plant Health Australia means Plant Health Australia Limited (ACN 092 607 997). 72. This term would be used in Part 4 of the proposed Act, which provides for funding for PHA. primary industry 73. This definition would provide that primary industry has the meaning prescribed by the rules. 74. This term would be used in Part 2 of the proposed Act, which provides for funding for recipient bodies. recipient body 75. This definition would provide that recipient body means a declared recipient body or a statutory recipient body. 76. This term would be used in Part 2 of the proposed Act, which provides for funding for recipient bodies. Declared recipient bodies and statutory recipient bodies are colloquially also referred to industry-owned and statutory RDCs. Regulatory Powers Act 77. This definition would provide that Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. relevant NRS information 78. This definition would provide that relevant NRS information means: information obtained or generated by a person in the course of, or for the purposes of, carrying out activities covered by paragraph 66(1)(a) and paid for with amounts debited from the NRS Special Account; or information obtained or generated by a person in the course of or for the purposes of administering Part 5, or assisting another person to administer Part 5. 79. This term would be used in Division 3 of Part 5 of the proposed Act, which provides 12

for information management in relation to this relevant NRS information. research and development collected amounts 80. This definition would provide that research and development collected amounts means amounts prescribed by the rules for the purposes of this definition. 81. This term would be used in Part 2 of the proposed Act, which provides for funding for recipient bodies, including spending requirements for recipient bodies. rules 82. This definition would provide that rules means the rules made by the Minister under section 90. 83. Section 90 would provide, among other things, that the Minister may, by legislative instrument, make rules prescribing matters: required or permitted by the proposed Act to be prescribed by the rules; or necessary or convenient to be prescribed for carrying out or giving effect to the proposed Act. Secretary 84. This definition would provide that Secretary means Secretary of the department. 85. See section 19A of the Acts Interpretation Act 1901 for the interpretation of references to departments in Acts. At the time of introduction of the Bill, the department is the Department of Agriculture, Fisheries and Forestry. State or Territory body 86. This definition would provide that State or Territory body includes a department of State, or an authority or agency, of a State or Territory. 87. This term would be used in Division 3 of Part 5 of the proposed Act, which provides for information management in relation to relevant NRS information. statutory recipient body 88. This definition would provide that statutory recipient body means the following: • a research and development corporation established under regulations, or continued in existence under regulations, made for the purposes of section 8 of the PIRD Act; • the Rural Industries Research and Development Corporation established under section 9 of the PIRD Act; • Wine Australia. 89. This term would be used in Part 2 of the proposed Act, which provides for the funding of recipient bodies. Statutory recipient bodies are colloquially also referred to as statutory RDCs. 90. Subsection 4(2) would provide that the Secretary may, in writing, authorise a person for the for the purposes of paragraph (d) of the definition of entrusted person in subsection 4(1). 91. This subsection would give the Secretary a power to authorise a person who is employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the department for the purposes of paragraph (d) of the definition of 13

entrusted person. Section 5 Declared fishery 92. This section would provide that the rules may declare part of the fishing industry, whether managed in whole or in part by or on behalf of the Commonwealth or a State or Territory, to be a declared fishery. 93. This term would be used in Subdivision B of Division 3 of Part 2, which provides for matching payments to the FRDC, including in relation to a declared fishery. 94. The purpose of this section is to enable the rules to declare part of the fishing industry to be a declared fishery. This reflects the separate nature of a declared fishery, which may have different levy and charge arrangements and different research and development needs from the remainder of the fishing industry. 95. At the time of introduction of the Bill, farmed prawns are proposed to be the only declared fishery. Section 6 Designated primary industry sectors for declared recipient bodies 96. This section would provide that the rules may prescribe a primary industry in relation to a declared recipient body, or a part of a primary industry, only if the primary industry or part is a nationally significant one. 97. Subsection 6(2) would provide that the following matters are relevant to whether a primary industry, or a part of a primary industry, is a nationally significant one: a. the national presence of the primary industry or part, including the geographical factors affecting the extent of that presence; b. the economic significance of the primary industry or part to the Australian economy; c. the historical significance of the primary industry or part. 98. Subsection 6(3) would provide that subsection 6(2) does not limit the matters relevant to whether a primary industry, or a part of a primary industry, is a nationally significant one. The effect of this provision is that subsection 6(2) is not an exhaustive list of relevant matters. Section 7 Definition of relevant animal health body 99. This section would provide that, for the purposes of the proposed Act, relevant animal health body, for an AHA commodity/service, means a body determined in an instrument under subsection 7(2) in relation to the AHA commodity/service. 100. Subsection 7(2) would allow the Secretary to determine by notifiable instrument, one or more bodies in relation to one or more specified AHA commodities/services. 101. Subsection 7(3) would prohibit the Secretary from determining a body in relation to an AHA commodity/service unless the body is a member of AHA, and the Secretary is satisfied that the body represents an industry in relation to the AHA commodity/service. 102. The term would be used in Subdivision B of Division 2 of Part 3 of the proposed Act, which provides for payments relating to biosecurity response in relation to funding for AHA. Section 8 Definition of relevant plant health body 103. This section would provide that, for the purposes of the proposed Act, relevant plant 14

health body, for a PHA commodity/service, means a body determined in an instrument under subsection 8(2) in relation to the PHA commodity/service. 104. Subsection 8(2) would allow the Secretary to determine by notifiable instrument, one or more bodies in relation to one or more specified PHA commodities/services. 105. Subsection 8(3) would prohibit the Secretary from determining a body in relation to a PHA commodity/service unless the body is a member of PHA, and the Secretary is satisfied that the body represents an industry in relation to the PHA commodity/service. 106. The term would be used in Subdivision B of Division 2 of Part 4 of the proposed Act, which provides for payments relating to biosecurity response in relation to funding for PHA. Section 9 Definition of research and development activity 107. This section would provide for the meaning of research and development activity, for a designated primary industry sector in relation to a declared recipient body or a statutory recipient body. 108. This term would be used in the definitions of qualifying expenditure amount, relevant fishing expenditure amount and declared fishery expenditure amount. Research and development projects 109. Subsection 9(1) would provide that a research and development activity, for a designated primary industry sector in relation to a declared recipient body or a statutory recipient body, is a project for research and development for that sector. 110. A note to subsection 9(1) would direct the reader's attention to section 10 for the definition of research and development. Extension 111. Subsection 9(2) would provide that another research and development activity, for a designated primary industry sector in relation to a declared recipient body or a statutory recipient body, is educating, informing or providing assistance to persons or bodies if: a. the persons or bodies are engaged in aspects of that sector (including producing, processing, storing, transporting or marketing goods that are the produce, or that are derived from the produce, of that sector); and b. that educating, informing or providing of assistance is to encourage or develop the capacity of the persons or bodies to adopt technical developments, innovations or technology arising from research and development in relation to that sector to improve those aspects. 112. The concept of extension is intentionally broad and is intended to include any type of extension activity that would benefit the relevant industry sector. Development of persons 113. Subsection 9(3) would provide that another research and development activity, for a designated primary industry sector in relation to a declared recipient body or a statutory recipient body, is the development of persons to carry out or adopt research and development in relation to that sector. Communication or publication 114. Subsection 9(4) would provide that another research and development activity, for a 15

designated primary industry sector in relation to a declared recipient body or a statutory recipient body, is the communication or publication, in any form, of information that is related to research and development in relation to that sector. 115. The concept of communication is intentionally broad and is intended to include electronic communication. Incidental activities 116. Subsection 9(5) would provide that another research and development activity, for a designated primary industry sector in relation to a declared recipient body or a statutory recipient body, is an activity incidental to the activities covered by subsection 9(1), (2), (3) or (4). 117. The purpose of this subsection is to cover activities that are connected or associated with research and development activities including operating costs and overheads. Section 10 Definition of research and development 118. Subsection 10(1) would provide that the term research and development, for a designated primary industry sector in relation to a declared recipient body or a statutory recipient body, is the systematic experimentation or analysis in any field of science, technology, economics or business carried out with the object of: (a) acquiring knowledge that may be of use in achieving or furthering an objective of that sector; or (b) applying such knowledge for the purpose of achieving or furthering an objective of that sector. 119. Subsection 10(2) would provide that, without limiting subsection 10(1), the systematic experimentation or analysis in a field includes the study of the social or environmental consequences of adopting new technical developments, innovations or technology. 120. Subsection 10(3) would provide that, without limiting paragraph 10(1)(a) or (b), an objective of a sector is improving the productivity of that sector, or any aspect of the production, processing, storage, transport or marketing of goods that are the produce, or that are derived from the produce, of that sector. This subsection does not limit those paragraphs in subsection 10(1), meaning research and development could also be carried out to achieve or further another objective of that sector within the meaning of subsection 10(1). 121. This term would be used in the definition of research and development activity in section 9. 122. The concept of research and development is intentionally broad to include all types of research and development that would benefit relevant industry sectors. Section 11 Act binds Crown 123. This section would provide that the proposed Act binds the Crown in each of its capacities but would not make the Crown liable to be prosecuted for an offence. Section 12 Extension of this Act to external Territories 124. This section would provide that the proposed Act extends to every external Territory. Section 13 Extra-territorial application of this Act 125. This section would provide that the proposed Act extends to acts, omissions, matters and things outside Australia. 16

Part 2--Funding for recipient bodies 126. This Part would set out the disbursement framework for the Commonwealth to enable payment of amounts of marketing, R&D and general levy and charge components to declared and statutory recipient bodies. It would also provide a mechanism for the Commonwealth to make matching payments to recipient bodies. 127. The disbursement framework would be consolidated from previously separate legislation into a consistent framework. Some differences between declared and statutory recipient bodies would be retained. Some changes to matching funding would be made to standardise requirements and improve funding certainty for recipient bodies. The levy and charge components connected to the amounts disbursed to each recipient body would be prescribed in the rules. 128. At the time of introduction of the Bill, the recipient bodies who would receive payments under this part of the proposed Act are: a. declared recipient bodies: i. the declared dairy industry body; ii. the declared egg industry body; iii. the declared forestry industry body; iv. the declared horticultural industry body; v. the declared livestock export body; vi. the declared meat industry body; vii. the declared meat processor body; viii. the declared pig industry body; ix. the declared sugarcane industry body; and x. the declared wool industry body. b. statutory recipient bodies: xi. Cotton Research and Development Corporation; xii. FRDC; xiii. Rural Industries Research and Development Corporation (AgriFutures); xiv. Grains Research and Development Corporation; and xv. Wine Australia. 129. These recipient bodies have helped drive agricultural innovation since 1989. They invest levy payments and matching funding in R&D for the benefit of levied industries and the Australian Community more broadly. Most of them also provide other industry services, mainly marketing. 17

Division 1--Simplified outline of this Part Section 14 Simplified outline of this Part 130. The simplified outline is included to assist the reader to understand the substantive provisions of the Part; however, it is not intended to be comprehensive. The reader should rely on the substantive provisions of the Part to which the outline relates. Division 2--Levy or charge payments Subdivision A--Commonwealth to make levy or charge payments Section 15 Commonwealth to make levy or charge payments 131. This section would provide that the Commonwealth must make payments to a recipient body of amounts equal to the following amounts that are received by or on behalf of the Commonwealth: a. amounts of a levy or charge imposed under a provision (of the regulations made under one of the Imposition Bills) prescribed by the rules in relation to that body, to the extent that those amounts are equal to the components of the rate of that levy or charge prescribed by the rules; b. in relation to that levy or charge-- amounts paid by a person under rules made for the purposes of paragraph 10(1)(a) of the Collection Act, to the extent that those amounts are equal to those components; c. amounts by way of penalty under section 9 or 11 of the Collection Act, to the extent that those amounts are attributable to the non-payment of those components or of amounts equal to those components. 132. For each recipient body, the rules would prescribe the relevant levies and charges and the components of levy and charge that the amounts to be paid would be based on. It is intended that marketing components, R&D components and general components would be prescribed. Section 16 Payment of Commonwealth costs Payment of Commonwealth costs 133. Subsection 16(1) would provide that a recipient body that is paid amounts under section 15 must pay to the Commonwealth amounts equal to the Commonwealth's costs in: a. collecting or recovering the amounts in paragraphs 15(1)(a), (b) and (c); and b. administering section 15 in relation to making of the payments to the body. 134. Subsection 16(2) would require the Secretary to give the recipient body written notice of the amount of the Commonwealth's costs and the period within which the body must pay the amount under subsection 16(1). Debt 135. Subsection 16(3) would provide that if an amount payable by a recipient body under subsection 16(1) remains unpaid at the end of the period in the written notice, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. 18

Section 17 Effect of refunds 136. This section would provide for the set-off, or recovery from a recipient body, of an amount equal to an amount refunded by the Commonwealth, for example, in respect of levy or charge paid in error. Set-off 137. Subsection 17(1) would set out the circumstances under which the Commonwealth may set off an amount equal to the refund against a payment the Commonwealth must make under section 15 to the body. This includes if: a. an amount (the received amount) covered by paragraph 15(1)(a), (b) or (c) is received by or on behalf of the Commonwealth; and b. the Commonwealth pays to a recipient body under section 15 an amount equal to the received amount; and c. the Commonwealth, after making that payment, refunds an amount equal to the whole or part of the received amount. 138. A note to subsection 17(1) would explain to the reader that the Commonwealth might refund an amount because a person paid too much levy or charge. 139. The purpose of this set-off provision would be to provide the Commonwealth with the ability to administer refunds in the most efficient way. Notice requiring recipient body to pay amount to Commonwealth 140. Subsection 17(2) would provide that where the Commonwealth is not able to set off an amount, the Secretary may give the recipient body a written notice: a. specifying the amount the Commonwealth is not able to set off; and b. requiring the body to pay to the Commonwealth the amount specified in the notice; and c. specifying the period within which the body must pay the amount specified in the notice. 141. This subsection would impose an obligation on a recipient body to pay to the Commonwealth an amount equal to the refund, if the Commonwealth is not able to set off the amount against other payments to the recipient body. Debt 142. Subsection 17(3) would provide that if a recipient body is required by a notice under subsection 17(2) to pay an amount to the Commonwealth and an amount payable by the body remains unpaid at the end of the period specified in the notice, the amount unpaid is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Subdivision B--Spending requirements for declared recipient bodies Overview 143. This Subdivision would set out the requirements for spending of amounts of marketing, R&D and general levy and charge components by declared recipient bodies. 19

144. The spending requirements would be consolidated from previously separate legislation into one consistent set of provisions for all declared recipient bodies. There would be separate spending requirements for statutory recipient bodies. 145. The purpose of the spending requirements is to provide distinct requirements for the spending of amounts of levy and charge components and to ensure those amounts are invested in the activities the levy and charge components were imposed to fund, or for purposes that have a sufficient nexus with those activities. These activities are primarily marketing and R&D but can also include industry services or other industry-specific activities. 146. Where spending on industry-specific activities is permitted, these activities would be prescribed in the rules. This is because they are specific to the needs of a particular industry and do not apply to all declared recipient bodies. Section 18 Spending of amounts equal to marketing collected amounts 147. This section would provide for the only matters on which declared recipient bodies may spend amounts paid under section 15 as are equal to marketing collected amounts. 148. Subsection 18(1) would provide that if a declared recipient body is paid amounts under section 15, then the amounts equal to marketing collected amounts can only be spent by the body on matters covered by section 18 which are marketing activities, Commonwealth's costs, refunds, debts and matters prescribed by the rules. Marketing activities 149. Subsection 18(2) would provide that a matter is marketing activities, in relation to the body, where the expenditure is: (a) for the benefit of a designated primary industry sector in relation to the body, and (b) is in accordance with the body's funding agreement, and (c) in accordance with the rules (if any). 150. Subsection 18(3) would provide that, without limiting paragraph 18(2)(c), the rules may require expenditure by the body, of a part of the amounts equal to the marketing collected amounts, to be for the benefit of the designated primary industry sector prescribed by the rules. 151. The purpose of this subsection is to allow amounts paid to a declared recipient body for marketing to be earmarked for expenditure for the benefit of a particular industry sector. For example, where a declared recipient body is the recipient body for more than one designated primary industry sector, the rules could prescribe that an amount equal to the marketing collected amounts received in respect of a particular primary industry sector must be spent on activities for the benefit of that sector. Commonwealth's costs 152. Subsection 18(4) would provide that a matter is making a payment to the Commonwealth under section 16 to the extent that the payment relates to: (a) meeting the Commonwealth's costs in collecting or recovering the marketing collected amounts; or (b) meeting the Commonwealth's costs in administering section 15 in relation to paying the amounts equal to the marketing collected amounts. 153. A note to subsection 18(4) would explain that section 16 requires the body to pay to the Commonwealth amounts equal to those costs. 20

Refunds 154. Subsection 18(5) would provide that a matter is making a payment to the Commonwealth under section 17 to the extent that the payment is attributable to a refund of an amount equal to the whole or part of a marketing collected amount. 155. A note to subsection 18(5) would explain that section 17 may require the body to pay to the Commonwealth amounts equal to certain refunds made by the Commonwealth. Debts 156. Subsection 18(6) would provide that a matter is making a payment of a debt as mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 15 to the body of amounts equal to marketing collected amounts. Matters prescribed by the rules 157. Subsection 18(7) would provide that a matter is any matter prescribed by the rules for the purposes of this subsection in relation to: (a) the body; and (b) a designated primary industry sector in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 158. The purpose of this subsection is to allow spending of marketing amounts on industry- specific activities. These activities would be prescribed by the rules. Arrangements under the RDC Acts would be continued through this mechanism. An example is marketing amounts that can also be spent on industry services. Section 19 Spending of amounts equal to research and development collected amounts 159. This section would provide for the only matters on which declared recipient bodies may spend amounts paid under section 15 equal to R&D collected amounts. 160. Subsection 19(1) would provide that if a declared recipient body is paid amounts under section 15, then those amounts equal to research and development collected amounts can only be spent by the body on matters covered by section 19. That is, R&D activities, Commonwealth's costs, refunds, debts and matters prescribed by the rules. Research and development activities 161. Subsection 19(2) would provide that a matter is research and development activities, for a designated primary industry sector in relation to the body, where expenditure on those activities is: (a) for the benefit of that sector; and (b) is in accordance with the body's funding agreement; and (c) in accordance with the rules (if any). 162. See section 9 for definition of research and development activity and section 4 for definition of designated primary industry sector. 163. Subsection 19(3) would provide that, without limiting paragraph 19(2)(c), the rules may require expenditure by the body, of a part of the amounts equal to the research and development collected amounts, to be for the benefit of the designated primary industry sector prescribed by the rules. 164. The purpose of this subsection is to allow amounts paid to a declared recipient body for R&D to be earmarked for expenditure for the benefit of a particular industry sector. For 21

example, where a declared recipient body is the recipient body for more than one designated primary industry, the rules could prescribe that an amount equal to the R&D collected amounts received in respect of a particular primary industry sector must be spent on activities for the benefit of that sector. Commonwealth's costs 165. Subsection 19(4) would provide that a matter is making a payment to the Commonwealth under section 16 to the extent that the payment relates to: (a) meeting the Commonwealth's costs in collecting or recovering the research and development collected amounts; or (b) meeting the Commonwealth's costs in administering section 15 in relation to paying the amounts equal to the research and development collected amounts. 166. A note to subsection 19(4) would explain that section 16 requires the body to pay to the Commonwealth amounts equal to those costs. Refunds 167. Subsection 19(5) would provide that a matter is making a payment to the Commonwealth under section 17 to the extent that the payment is attributable to a refund of an amount equal to the whole or a part of a research and development collected amount. 168. A note to subsection 19(5) would explain that section 17 may require the body to pay to the Commonwealth amounts equal to certain refunds made by the Commonwealth. Debts 169. Subsection 19(6) would provide that a matter is making a payment of a debt (if any) as mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 15 to the body of amounts equal to research and development collected amounts. Matters prescribed by the rules 170. Subsection 19(7) would provide that a matter is any matter prescribed by the rules for the purposes of this subsection in relation to: (a) the body; and (b) a designated primary industry sector in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 171. The purpose of this subsection is to allow spending of R&D amounts on industry- specific activities. These activities would be prescribed by the rules. Arrangements under the RDC Acts would be continued through this mechanism. Section 20 Spending of amounts equal to general collected amounts 172. This section would provide for the only matters on which declared recipient bodies may spend amounts paid under section 15 equal to general collected amounts. 173. Subsection 20(1) would provide that if a declared recipient body is paid amounts under section 15, then the portion of those amounts as are equal to general collected amounts can only be spent by the body on matters covered by section 20. That is, matters prescribed by the rules, Commonwealth's costs, refunds and debts. 22

Matters prescribed by the rules 174. Subsection 20(2) would provide that a matter is any matter prescribed by the rules for the purposes of this subsection in relation to (a) the body and (b) a designated primary industry sector in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 175. The purpose of this subsection is to allow spending of general amounts on R&D, marketing and industry-specific activities. These activities would be prescribed by the rules. Arrangements under the RDC Acts would be continued through this mechanism. Commonwealth's costs 176. Subsection 20(3) would provide that a matter is making a payment to the Commonwealth under section 16 to the extent that the payment relates to (a) meeting the Commonwealth's costs in collecting or recovering the general collected amounts or (b) meeting the Commonwealth's costs in administering section 15 in relation to paying the amounts equal to the general collected amounts. 177. A note subsection 20(3) would explain that section 16 requires the body to pay to the Commonwealth amounts equal to those costs. Refunds 178. Subsection 20(4) would provide that a matter is making a payment to the Commonwealth under section 17 to the extent that the payment relates to a refund of an amount equal to the whole or a part of a general collected amount. 179. A note to subsection 20(4) would explain that section 17 may require the body to pay to the Commonwealth amounts equal to certain refunds made by the Commonwealth. Debts 180. Subsection 20(5) would provide that a matter is making a payment of a debt as mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 15 to the body of amounts equal to general collected amounts. Subdivision C--Spending requirements for statutory recipient bodies Overview 181. This Subdivision would provide for the only matters the requirements for spending of amounts of marketing and R&D levy and charge components by statutory recipient bodies. 182. The spending requirements would replace provisions in the PIRD Act and the Wine Act and would apply consistently to all statutory recipient bodies with some exceptions for Wine Australia. There would be separate spending requirements for declared recipient bodies. 183. The purpose of the spending requirements is to provide distinct requirements for the spending of amounts of levy and charge components and to ensure those amounts are invested in the activities the levy and charge components were imposed to fund, or for purposes that have a sufficient nexus with those activities. These activities are primarily marketing and R&D but can also include other activities. 23

184. Where spending on other activities is permitted, these activities would be prescribed in the rules. This is because they are specific to the needs of a particular industry and do not apply to all statutory recipient bodies. 185. The difference between the spending requirements for statutory recipient bodies and declared recipient bodies would be that only statutory recipient bodies can spend levy or charge amounts on activities and expenses that relate to their general powers and functions as statutory corporations. Section 21 Spending of amounts equal to marketing collected amounts 186. This section would provide for the only matters on which statutory recipient bodies may spend amounts paid under section 15 equal to marketing collected amounts. 187. Subsection 21(1) would provide that if a statutory recipient body is paid amounts under section 15, then those amounts equal to marketing collected amounts can only be spent by the body on matters covered by section 21. That is, marketing activities, Commonwealth's costs, refunds, debts, general payments and other matters. Marketing activities 188. Subsection 21(2) would provide that a matter is marketing activities where the expenditure is (a) for the benefit of a designated primary industry sector in relation to the body and is (b) in accordance with the body's funding agreement and (c) any rules. 189. Subsection 21(3) would provide that, without limiting paragraph 21(2)(c), the rules may require expenditure by the body, of a part of the amounts equal to the marketing collected amounts, to be for the benefit of the designated primary industry sector prescribed by the rules. 190. The purpose of this subsection is to allow amounts paid to a statutory recipient body for marketing to be earmarked for expenditure for the benefit of a particular industry sector. For example, where a statutory recipient body is the recipient body for more than one designated primary industry sector, the rules could prescribe that an amount equal to the marketing collected amounts received in respect of a particular primary industry sector must be spent on activities for the benefit of that sector. Commonwealth's costs 191. Subsection 21(4) would provide that a matter is making a payment to the Commonwealth under section 16 to the extent that the payment relates to (a) meeting the Commonwealth's costs in collecting or recovering the marketing collected amounts or (b) meeting the Commonwealth's costs in administering section 15 in relation to paying the amounts equal to the marketing collected amounts. 192. A note to subsection 21(4) would explain that section 16 requires the body to pay to the Commonwealth amounts equal to those costs. Refunds 193. Subsection 21(5) would provide that a matter is making a payment to the Commonwealth under section 17 to the extent that the payment is attributable to a refund of an amount equal to the whole or a part of a marketing collected amount. 194. A note to subsection 21(5) would explain that section 17 may require the body to pay to the Commonwealth amounts equal to certain refunds made by the Commonwealth. 24

Debts 195. Subsection 21(6) would provide that a matter is making a payment of a debt (if any) as mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 15 to the body of amounts equal to marketing collected amounts. General payments 196. Subsection 21(7) would provide that a matter is doing the following: a. paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under the PIRD Act or the Wine Act. 197. The purpose of this subsection is to allow statutory recipient bodies established under the PIRD Act and Wine Act to spend marketing components on activities and expenses that relate to their general functions and powers as statutory corporations. Arrangements under the PIRD Act and Wine Act would be continued through this subsection. 198. Subsection 21(8) would provide that paragraph 21(7)(a), which explains that paying or discharging expenses, charges, obligations and liabilities incurred by that body in the performance of its functions or the exercise of its powers, does not apply to a matter covered by subsection 22(2), (4), (5) or (6), which deal with spending of amounts equal to research and development collected amounts. 199. The purpose of this subsection is to ensure marketing amounts would not be spent on R&D activities. Matters prescribed by the rules 200. Subsection 21(9) would provide that a matter is any matter that is prescribed by the rules for the purposes of this subsection in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 201. The purpose of this subsection is to allow spending of marketing amounts on other activities. These activities would be prescribed in the rules. Section 22 Spending of amounts equal to research and development collected amounts 202. This section would provide for the only matters on which statutory recipient bodies may spend amounts paid under section 15 equal to research and development collected amounts. 203. Subsection 22(1) would provide that if a statutory recipient body is paid amounts under section 15, then those amounts equal to research and development collected amounts can only be spent by the body on matters covered by section 22. That is, R&D activities, Commonwealth's costs, refunds, debts, general payments and other matters. 25

Research and development activities 204. Subsection 22(2) would provide that a matter is research and development activities, for a designated primary industry sector in relation to the body, where expenditure on those activities is for the benefit of that sector and in accordance with the body's funding agreement and annual operational plan and any rules. 205. See section 9 for definition of research and development activity and section 4 for definition of designated primary industry sector. 206. Subsection 22(3) would provide that, without limiting paragraph 22(2)(c), the rules may require expenditure by the body, of a part of the amounts equal to the research and development collected amounts, to be for the benefit of the designated primary industry sector prescribed by the rules. 207. The purpose of this subsection is to allow amounts paid to a statutory recipient body for R&D to be earmarked for expenditure for the benefit of a particular industry sector. For example, where a statutory recipient body is the recipient body for more than one designated primary industry sector, the rules could prescribe that an amount equal to the R&D collected amounts received in respect of a particular primary industry sector must be spent on activities for the benefit of that sector. Commonwealth's costs 208. Subsection 22(4) would provide that a matter is making a payment to the Commonwealth under section 16 to the extent that the payment relates to (a) meeting the Commonwealth's costs in collecting or recovering the research and development collected amounts or (b) meeting the Commonwealth's costs in administering section 15 in relation to paying the amounts equal to the research and development collected amounts. 209. A note to subsection 22(4) would explain that section 16 requires the body to pay to the Commonwealth amounts equal to those costs. Refunds 210. Subsection 22(5) would provide that a matter is making a payment to the Commonwealth under section 17 to the extent that the payment is attributable to a refund of an amount equal to the whole or a part of a research and development collected amount. 211. A note to subsection 22(5) would explain that section 17 may require the body to pay to the Commonwealth amounts equal to certain refunds made by the Commonwealth. Debts 212. Subsection 22(6) would provide that a matter is making a payment of a debt (if any) as mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 15 to the body of amounts equal to research and development collected amounts. General payments for some statutory recipient bodies 213. Subsection 22(7) would provide that for a statutory recipient body (except Wine Australia), a matter is doing the following: 26

a. paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under PIRD Act. 214. The purpose of this subsection is to allow statutory recipient bodies established under the PIRD Act to spend R&D components on activities and expenses that relate to their general functions and powers as statutory corporations. Arrangements under the PIRD Act would be continued through this subsection. The Wine Act did not provide for this in relation to the spending of R&D components. 215. Subsection 22(8) would provide that paragraph 22(7)(a), which explains that a matter for a statutory recipient body (except Wine Australia) is paying or discharging expenses, charges, obligations and liabilities incurred by that body in the performance of its functions or the exercise of its powers, does not apply to a matter covered by subsection 21(2), (4), (5) or (6) which deal with spending of amounts equal to marketing collected amounts. 216. The purpose of this subsection is to ensure that R&D components would not be spent on marketing activities. Matters prescribed by the rules 217. Subsection 22(9) would provide that a matter is any matter that is prescribed by the rules for the purposes of this subsection in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 218. The purpose of this subsection is to allow spending of R&D amounts on other activities. These activities would be prescribed in the rules. Division 3--Matching payments Overview 219. This Division would set out the mechanism for Commonwealth matching funding contributions to most recipient bodies. The Division does not apply to the declared livestock export and declared meat processor bodies unless the rules provide otherwise. A separate matching funding mechanism would apply to FRDC under Subdivision B. 220. Matching funding would be provided to most recipient bodies by the Commonwealth for co-investment in R&D, to improve the profitability, productivity, competitiveness and long-term sustainability of Australia's primary industries. This government- industry partnership has been operating successfully for over 30 years and provides benefits for agricultural industries and the Australian community. Matching funding would continue to be limited by 50% of a recipient body's relevant expenditure and 0.5% of each industry's average GVP for the relevant financial year. 221. Matching funding provisions would be consolidated from the ten RDC Acts into one consistent set of provisions in the proposed Act (with separate provisions for FRDC). Changes made to the matching funding arrangements compared with the RDC Acts that would apply to most recipient bodies include the removal of the total levies limit, inclusion of an explicit carry-over provision and determination of the GVP limit based 27

on amounts in relation to the three previous financial years rather than the current financial year and two previous financial years. Subdivision A--Commonwealth to make matching payments to most recipient bodies Section 23 Commonwealth to make matching payments 222. This section would require the Commonwealth to make matching payments to most recipient bodies. 223. Subsection 23(1) would provide that the Commonwealth must pay to a recipient body, in relation to a financial year (the relevant financial year), amounts that in total are equal to the lesser of the following: a. the amount (the expenditure limit) equal to 50% of the body's qualifying expenditure amount for the relevant financial year; b. the amount (the GVP limit) equal to 0.5% of the average gross value of production amount, in relation to the body, for the relevant financial year. 224. Note 1 to subsection 23(1) would refer the reader to section 24 for the definition of qualifying expenditure amount and section 25 for the definition of average gross value of production amount. 225. Note 2 to subsection 23(1) would refer the reader to sections 33 and 34 for spending requirements for amounts paid under subsection 23(1). 226. Examples would be provided to assist the reader. 227. Subsection 23(2) would provide that subsection 23(1) does not apply to the following: a. the FRDC; b. the declared livestock export body and the declared meat processor body, unless the rules prescribe that subsection 23(1) does apply to that body. 228. The exclusion of the declared livestock export body and the declared meat processor body from subsection 23(1) reflects arrangements under the AMLI Act under which all matching funding for the red meat industry is paid to the declared meat industry body. The qualifying expenditure amount, however, could include expenditure of funds provided to the declared meat industry body by the livestock export research body and the meat processor research body. This approach was developed to achieve more focused and cost-efficient service delivery and to promote a culture of cooperation among red meat RDCs. 229. A note to subsection 23(2) would refer the reader to Subdivision B for matching payments to the FRDC. 230. Subsection 23(3) would explain that amounts worked out under paragraph 23(1)(a) or (b) must be rounded to the nearest whole cent, rounding up in the case of 0.5 cents. 28

Making payments 231. Subsection 23(4) would provide that the Commonwealth must make the matching payments under subsection (1) in the amounts, and at the times, that the Commonwealth determines which may be after the end of the relevant financial year. 232. The purpose of this subsection is to provide flexibility in relation to the timing of matching payments. For example, it would allow payments to be made to a recipient body after the end of a financial year in respect of which that body has incurred qualifying expenditure to allow for an audited financial statement to be received. Carry-over amounts 233. Subsection 23(5) would provide for carry-over amounts. The subsection would provide that if, for the relevant financial year, the expenditure limit exceeds the GVP limit, an amount equal to the excess is a carry-over amount for the body for the next financial year after the relevant financial year. 234. The purpose of this subsection is to allow for matching of qualifying expenditure that is above the GVP limit in the current year in future years (subject to the GVP limit in the future years). For example, if a recipient body's expenditure is higher than the GVP limit in financial year one (FY1), but lower than the GVP limit in financial year two (FY2), the recipient body would receive matching funding for the excess amount of FY1 in FY2 (up to the GVP limit in FY2). This subsection replicates carry-over provisions which are included in some RDC Acts. Carry-over provides flexibility for recipient bodies in managing their expenditure on R&D across financial years. 235. A note to subsection 23(5) would explain that an amount equal to the carry-over amount multiplied by 2 is a component of the body's qualifying expenditure amount for the next financial year, referring the reader to paragraph 24(1)(b). 236. An extension of Example 2 to subsection 23(1) would be provided to assist the reader. Section 24 Definition of qualifying expenditure amount 237. Subsection 24(1) would provide that a recipient body's qualifying expenditure amount for a financial year is the sum of the following: a. expenditure the body incurs during that year on research and development activities for a designated primary industry sector in relation to the body, where expenditure on those activities: i. is for the benefit of that sector and the Australian community generally; and ii. is in accordance with the body's funding agreement; and iii. if the body is a statutory recipient body--is in accordance with the body's annual operational plan; b. any carry-over amount for the body for that year under subsection 23(5), multiplied by two; c. if applicable, the amount covered by subsection (2) of section 24 for that year. 238. Notes are provided to clarify definitions and concepts used in section 24. 29

239. Note 1 would refer the reader to section 9 for the definition of research and development activity. 240. Note 2 would explain to the reader that paragraphs 24(1)(a) and (c) cover expenditure the body incurs, regardless of the source of the money that is being spent. The note would provide that examples of sources of money are payments by the Commonwealth under Division 2, payments by a State or Territory or an authority of a State or Territory under contract with the recipient body and voluntary industry contributions. 241. Note 3 would clarify that if there is more than one designated primary industry sector in relation to the body, paragraph 24(1)(a) would cover expenditure the body incurs during the financial year on research and development activities for each of those sectors. 242. An extension to the example given to support subsection 23(5) would be provided to assist the reader. Additional amount for some statutory recipient bodies 243. Subsection 24(2) would provide that, for a statutory recipient body (except Wine Australia), the amount for the purposes of paragraph 24(1)(c) is expenditure the body incurs during that year in doing the following: a. paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under the Primary Industries Research and Development Act 1989. 244. The purpose of this subsection is to allow statutory recipient bodies established under the PIRD Act to include expenditure on activities and expenses that relate to their general functions and powers as statutory corporations in matching funding claims. Arrangements under the PIRD Act would be continued through this subsection. The Wine Act did not provide for this. 245. Subsection 24(3) would clarify that paragraph 24(2)(a) does not apply to expenditure on a matter covered by subsection 21(2), (4), (5) or (6) which deal with spending of amounts equal to marketing collected amounts. 246. The purpose of this subsection is to ensure that claims for matching funding would not include expenditure of amounts equal to marketing collected amounts. Exclusion 247. Subsection 24(4) would provide that paragraphs 24(1)(a) and (c) do not apply to the following types of expenditure: a. a payment by the recipient body to the Commonwealth under section 16 or 17; b. a payment by the recipient body to the Commonwealth that is a payment of a debt as mentioned in subsection 86(2); c. expenditure of a kind prescribed by the rules for the purposes of this paragraph. 30

248. The purpose of this subsection is to exclude payment of Commonwealth costs, refunds and debt from qualifying expenditure for matching payments and to allow exclusion of different kinds of expenditure through the rules if required. Section 25 Definition of average gross value of production amount 249. This section would define the average gross value of production amount, in relation to a recipient body to which subsection 23(1) applies. 250. The calculation of the average GVP amount would apply consistently to recipient bodies. Under the RDC Acts the calculation varied between different bodies or were not provided at all. 251. A change made compared with the RDC Acts is that the average GVP amount is determined based on amounts for the previous three financial years rather than the current and previous two financial years. This would allow for a timely determination of the average amount and provide recipient bodies with certainty on their GVP limit early in the financial year. 252. Subsection 25(1) would provide that the average gross value of production amount, in relation to a recipient body, for a financial year (the relevant financial year) is the amount determined under subsection 25(2) of this section in relation to the recipient body for the relevant financial year. 253. A note to subsection (1) would direct the reader to subsections 25(8) to (12) for an exception to subsection (1). 254. Subsection 25(2) would provide that the Secretary must, by notifiable instrument, determine an amount in relation to the recipient body for the relevant financial year. The Secretary is required to make this determination as soon as practicable after the start of that relevant financial year. 255. It is intended that the average GVP amount is determined as soon as the relevant data is available, which is expected to be within the first quarter of the financial year. Calculation is to be an average 256. Subsection 25(3) would provide that the amount is to be the average gross value of production, in relation to the body, for each of the last three financial years before the relevant financial year. 257. Subsection 25(4) would provide that the Secretary must specify in the notifiable instrument under subsection (2) each gross value of production amount the Secretary used to determine that average. 258. Subsection 25(5) would provide that the gross value of production amount, in relation to the body, for a financial year is the amount provided to the Secretary by the head of the agricultural statistics body as being the sum of the following: a. the gross value of production in that year of all of the goods prescribed by the rules in relation to the body; b. the gross value in that year of all of the services (if any) prescribed by the rules in relation to the body and provided in that year. 31

259. A note to subsection 25(5) would refer the reader to section 4 for the meaning of agricultural statistics body. 260. Subsection 25(6) would provide that, without limiting paragraph (5)(a), the rules may prescribe goods by reference to: the production of specified goods, or goods produced by a specified primary industry or goods that are the produce of a specified primary industry. Effect of substituted gross value of production amounts 261. Subsection 25(7) would provide that once the Secretary has determined an amount under subsection 25(2) in relation to a recipient body for the relevant financial year: a. the Secretary must, for the relevant financial year, disregard any amount provided to the Secretary by the agricultural statistics body in substitution for a gross value of production amount; and b. the Secretary must, take the substituted amount into account in determining an amount under subsection 25(2) for each of the next two financial years after the relevant financial year. 262. The purpose of this subsection is to provide each recipient body with certainty that, once determined, the average GVP amount, and related GVP limit, for the body for a financial year, will not change. Alternative average gross value of production amount 263. Subsections 25(8) to (12) would provide that the Secretary may determine an alternative average gross value of production amount in relation to a body for a relevant financial year in circumstances where the gross value of production amount for the body is unavailable for a specified financial year. 264. The purpose of these provisions is to provide future-proofing by ensuring that a method of calculation can be provided for the average gross value of production amount for new commodities or services. 265. Subsection 25(8) would provide that the Secretary may, by notifiable instrument, determine that the process for determining the average gross value of production amount under subsection 25(1) does not apply in relation to a specified recipient body in a specified financial year (the relevant financial year). The determination has effect accordingly. 266. Subsection 25(9) would provide that the Secretary may only make a determination under subsection 25(8) if they are satisfied that the head of the agricultural statistics body is unable to provide the Secretary with the gross value of production amount, in relation to the body, for one or more of the last three financial years before the relevant financial year. 267. Subsection 25(10) would provide that if the Secretary makes a determination under subsection 25(8), the Secretary must specify in that determination: a. an amount that is the average gross value of production amount, in relation to the body, for the relevant financial year; and b. the basis on which the Secretary specified that amount. 32

268. Subsection 25(11) would provide that if the Secretary makes a determination under subsection (8), the amount determined under paragraph 25(10)(a) is the average gross value of production amount, in relation to the body, for the relevant financial year. 269. Subsection 25(12) would provide that, without limiting paragraph (10)(b), the basis for specifying an amount in a determination may be one of the following: a. the amount is the average of the gross value of production amounts, in relation to the body, for any two of the last three financial years before the relevant financial year; b. the amount is the gross value of production amount, in relation to the body, for any of the last three financial years before the relevant financial year; c. the amount is equal to an amount published in a publicly available document specified in the determination; d. the amount is equal to an amount provided to the Secretary by a person or body specified in the determination. Subdivision B--Commonwealth to make matching payments to Fisheries Research and Development Corporation 270. This Subdivision sets out the mechanism for Commonwealth matching funding contributions to the FRDC. 271. These industry-specific arrangements reflect the shared responsibility of the Commonwealth and State and Territory governments for marine resources. The FRDC has responsibility for research to manage the fisheries natural resource for the benefit of the Australian community. 272. Matching funding for FRDC would be paid in relation to the fishing industry (except declared fisheries) and declared fisheries limited to a maximum of 0.75% of the relevant average GVP amount. The higher maximum amount of 0.75% of the average GVP compared to other recipient bodies reflects the greater public interest aspect given fish resources are a public resource and fisheries operate in a public space where the resources are shared by several user groups. Matching funding would be comprised of separate payments in relation to different GVP amounts (total main, Commonwealth, State/Territory main and declared fishery GVP amounts) taking relevant expenditure amounts, levy amounts, and State/Territory payments into consideration. 273. The FRDC receives matching funding payments from the Commonwealth in relation to the fishing industry (except declared fisheries) and declared fisheries. Section 5 enables the rules to declare an individual fishery industry sector to be a declared fishery where a statutory levy has been established and imposed on that industry sector. At the time of introduction of the Bill, farmed prawns is proposed to be the only declared fishery. 274. The matching funding mechanism for the FRDC would remain largely the same as in the PIRD Act. One of the changes to matching funding applied to the other recipient bodies would also apply to the FRDC: determination of the relevant average GVP amount based on amounts from the three previous financial years rather than the current and two previous financial years. 33

Section 26 Commonwealth to make matching payments in relation to the fishing industry (except declared fisheries) 275. This section would require the Commonwealth to make matching payments to the FRDC in relation to the fishing industry (except declared fisheries). 276. Subsection 26(1) would provide that the Commonwealth must pay to the FRDC, in relation to a financial year (the relevant financial year), amounts that in total are equal to the sum of payable amounts worked out under section 26 (rounded to the nearest whole cent and rounding up in the case of 0.5 cents). 277. A note to subsection 26(1) would refer the reader to section 35 for spending requirements for amounts paid under subsection 26(1). 278. Subsection 26(2) would set out that a payable amount is the lesser of the following: a. the FRDC's relevant fishing expenditure amount for the relevant financial year; b. the amount equal to 0.5% of the average total main fishing industry GVP amount for the relevant financial year. 279. A note to subsection 26(2) would direct the reader to section 29 for the definition of average total main fishing industry GVP amount. 280. An example would be provided to assist the reader. 281. Subsection 26(3) would provide that the FRDC's relevant fishing expenditure amount for a financial year is the sum of the following: a. the expenditure the FRDC incurs during that year on research and development activities for the fishing industry (except any declared fishery), where expenditure on those activities is: for the benefit of the fishing industry (except any declared fishery); and for the benefit of the Australian community generally; and in accordance with the FRDC's funding agreement; and in accordance with the FRDC's annual operational plan; b. the expenditure the FRDC incurs during that year in doing the following (except in relation to any declared fishery): i. paying or discharging expenses, charges, obligations and liabilities incurred by the FRDC in the performance of its functions or the exercise of its powers; ii. paying remuneration, allowances, fees or expenses payable under the PIRD Act. 282. Notes are provided to clarify definitions and concepts used in section 26. 283. Note 1 would refer the reader to section 9 for the definition of research and development activity. 284. Note 2 would explain to the reader that paragraphs 26(3)(a) and (b) cover expenditure the FRDC incurs, regardless of the source of the money that is being spent. Examples of sources of money are payments by the Commonwealth under Division 2, payments by a State or Territory or an authority of a State or Territory and voluntary industry contributions. 34

285. Note 3 would direct the reader to section 28 for expenditure to which paragraph 26(3)(a) and (b) does not apply. 286. Subsection 26(4) would clarify that subparagraph 26(3)(b)(i) does not apply to expenditure on a matter covered by subsection 21(2), (4), (5) or (6). 287. The purpose of this subsection is to ensure that claims for matching funding would not include expenditure of amounts equal to marketing collected amounts. Payable amounts worked out using the average Commonwealth main fishing industry GVP amount 288. Subsection 26(5) would provide a method statement for working out a payable amount if the relevant fishing expenditure amount is 1% or more of the average total main fishing industry GVP amount for the relevant financial year. 289. A note to subsection 26(5) would direct the reader to section 29 for the definition of average total main fishing industry GVP amount and section 30 for the definition of average Commonwealth main fishing industry GVP amount. 290. A further note to subsection 26(5) would clarify that paragraph (a) of step 2 of the method statement does not apply in relation to certain levies or charges, excluded under subsection 26(11). 291. An example would be provided to assist the reader. 292. Subsection 26(6) would provide a method statement for working out a payable amount if the relevant fishing expenditure amount is more than 0.5%, but less than 1%, of the average total main fishing industry GVP amount for the relevant financial year. 293. A note to subsection 26(6) would direct the reader to section 29 for the definition of average total main fishing industry GVP amount and section 30 for the definition of average Commonwealth main fishing industry GVP amount. 294. A further note to subsection 26(6) would clarify that paragraph (a) of step 6 of the method statement does not apply in relation to certain levies or charges, excluded under subsection 26(11). 295. An example would be provided to assist the reader. Payable amounts where State or Territory makes fishing payments 296. Subsection 26(7) would provide a method statement for working out a payable amount if: a. the relevant fishing expenditure amount is 1% or more of the average total main fishing industry GVP amount for the relevant financial year; and b. a State or Territory makes one or more payments in the relevant financial year to the FRDC, or to the Commonwealth, for research and development in relation to the main fishing industry. 297. A note to subsection 26(7) would direct the reader to section 29 for the definition of average total main fishing industry GVP amount and section 31 for the definition of average State/Territory main fishing industry GVP amount. 35

298. An example would be provided to assist the reader. 299. Subsection 26(8) would provide a method statement for working out a payable amount if: a. the relevant fishing expenditure amount is more than 0.5%, but less than 1%, of the average total main fishing industry GVP amount in relation to the relevant financial year; and b. a State or Territory makes one or more payments in the relevant financial year to the FRDC, or to the Commonwealth, for research and development in relation to the main fishing industry. 300. A note to subsection 26(8) would direct the reader to section 29 for the definition of average total main fishing industry GVP amount and section 31 for the definition of average State/Territory main fishing industry GVP amount. 301. An example would be provided to assist the reader. Overall limit 302. Subsection 26(9) would provide that despite subsections (2) to (8), the total of the amounts paid by the Commonwealth to the FRDC in relation to the relevant financial year must not exceed 0.75% of the average total main fishing industry GVP amount for the relevant financial year. 303. A note to subsection 26(9) would direct the reader to section 29 for the definition of average total main fishing industry GVP amount. Making payments 304. Subsection 26(10) would provide that the Commonwealth must make the matching payments under subsection 26(1) to the FRDC in the amounts, and at the times, that the Commonwealth determines. Those times may be after the end of the relevant financial year. 305. The purpose of this subsection is to provide flexibility in relation to the timing of matching payments. For example, it would allow payments to be made to FRDC after the end of a financial year in respect of which FRDC has incurred relevant fishing expenditure to allow for an audited financial statement to be received. Other rules 306. Subsection 26(11) would set out parts of the method statements in subsections 26(5) and (6) that do not apply in relation to a declared fishery levy or charge in relation to a declared fishery. 307. Subsection 26(12) would provide that subsections 26(7) and (8) apply separately in relation to each State or Territory that makes a payment in the relevant financial year to the FRDC, or to the Commonwealth, for research and development in relation to the main fishing industry. 36

Section 27 Commonwealth to make matching payments in relation to a declared fishery 308. This section would require the Commonwealth to make matching payments to the FRDC in relation to a declared fishery. 309. A declared fishery would mean a part of the fisheries industry that is the subject of a declaration that is referred to in section 5. It is intended that the rules made for the purposes of section 5 may declare a part of the fishing industry to be a declared fishery. This reflects the separate nature of a declared fishery, which may have different levy and charge arrangements and different R&D needs, from the remainder of the fishing industry. 310. Subsection 27(1) would provide that if there is a declared fishery in a financial year (the relevant financial year), the Commonwealth must pay to the FRDC, in relation to the relevant financial year, amounts that in total are equal to the sum of payable amounts worked out under section 27 (rounded to the nearest whole cent and rounding up in the case of 0.5 cents). 311. A note to subsection 27(1) would direct the reader to section 35 for spending requirements for amounts paid under subsection 27(1). 312. Subsection 27(2) would set out that a payable amount is the lesser of the following: a. the FRDC's declared fishery expenditure amount for the relevant financial year; b. the amount equal to 0.5% of the average declared fishery GVP amount for the relevant financial year and the declared fishery. 313. A note to subsection 27(2) would direct the reader to section 32 for the definition of average declared fishery GVP amount. 314. An example would be provided to assist the reader. 315. Subsection 27(3) would provide that the FRDC's declared fishery expenditure amount for a financial year is the sum of the following: a. expenditure the FRDC incurs during that year on research and development activities for the declared fishery, where expenditure on those activities is: for the benefit of the declared fishery; and for the benefit of the Australian community generally; and in accordance with the FRDC's funding agreement; and the FRDC's annual operational plan; b. the expenditure the FRDC incurs during that year in doing the following in relation to the declared fishery: i. paying or discharging expenses, charges, obligations and liabilities incurred by the FRDC in the performance of its functions or the exercise of its powers; ii. paying remuneration, allowances, fees or expenses payable under the PIRD Act. 316. Notes are provided to clarify definitions and concepts used in section 27. 37

317. Note 1 would refer the reader to section 9 for the definition of research and development activity. 318. Note 2 would explain to the reader that paragraphs 27(3)(a) and (b) cover expenditure the FRDC incurs, regardless of the source of the money that is being spent. Examples of sources of money include payments by the Commonwealth under Division 2, payments by a State or Territory or an authority of a State or Territory and voluntary industry contributions. 319. Note 3 would direct the reader to section 28 for expenditure to which paragraph 27(3)(a) and (b) does not apply. 320. Subsection 27(4) would clarify that the expenditure the Corporation incurs during that year under paragraph 27(3)(b)(i) does not apply to expenditure on a matter covered by subsection 21(2), (4), (5) or (6). 321. The purpose of this subsection is to ensure that claims for matching funding would not include expenditure of amounts equal to marketing collected amounts. Payable amounts worked out using the average declared fishery GVP amount 322. Subsection 27(5) would provide a method statement for working out a payable amount if the declared fishery expenditure amount is 1% or more of the average declared fishery GVP amount for the relevant financial year and the declared fishery. 323. A note to subsection 27(5) would direct the reader to section 32 for the definition of average declared fishery GVP amount. 324. An example would be provided to assist the reader. 325. Subsection 27(6) would provide a method statement for working out a payable amount if the declared fishery expenditure amount is more than 0.5%, but less than 1%, of the average declared fishery GVP amount for the relevant financial year and the declared fishery. 326. A note to subsection 27(6) would direct the reader to section 32 for the definition of average declared fishery GVP amount. 327. An example would be provided to assist the reader. Overall limit 328. Subsection 27(7) would provide that despite subsection (2) to (6), the total of the amounts paid by the Commonwealth to the FRDC in relation to the relevant financial year must not exceed 0.75% of the average declared fishery GVP amount for the relevant financial year and the declared fishery. 329. A note to subsection 27(7) would direct the reader to section 32 for the definition of average declared fishery GVP amount. Making payments 330. Subsection 27(8) would provide that the Commonwealth must make the matching payments under subsection (1) in the amounts, and at the times, that the Commonwealth determines. Those times may be after the end of the relevant financial year. 38

331. The purpose of this subsection is to provide flexibility in relation to the timing of matching payments. For example, it would allow payments to be made to FRDC after the end of a financial year in respect of which FRDC has incurred declared fishery expenditure to allow for an audited financial statement to be received. Separate applications of section 332. Subsection 27(9) would provide that section 27 applies separately in relation to each declared fishery. Section 28 Scope of Fisheries Research and Development Corporation's expenditure amounts 333. Section 28 would provide that paragraphs 26(3)(a) and (b) and 27(3)(a) and (b) do not apply to expenditure of the following kinds: a. a payment by the FRDC to the Commonwealth under section 16 or 17; b. a payment by the FRDC to the Commonwealth that is a payment of a debt as mentioned in subsection 86(2); c. expenditure of a kind prescribed by the rules for the purposes of paragraph 28(c). 334. The purpose of this section is to exclude Commonwealth costs, refunds and debt from FRDC expenditure (relevant fishing expenditure and declared fishery expenditure) for matching funding and to allow exclusion of different kinds of expenditure through the rules if required. Section 29 Definition of average total main fishing industry GVP amount 335. Subsection 29(1) would provide that the average total main fishing industry GVP amount, for a financial year (the relevant financial year), is the amount determined under subsection 29(2) for the relevant financial year. 336. Subsection 29(2) would provide that, for the purposes of subsection 29(1), the Secretary must, by notifiable instrument, determine an amount for the relevant financial year as soon as practicable after the start of that year. Calculation is to be an average 337. Subsection 29(3) would provide that the average total main fishing industry GVP amount is to be the average of the total main fishing industry GVP amounts for each of the last three financial years before the relevant financial year. 338. Subsection 29(4) would provide that the Secretary must specify in the notifiable instrument each total main fishing industry GVP amount the Secretary used to determine that average. 339. Subsection 29(5) would provide that the total main fishing industry GVP amount, for a financial year, is the amount provided to the Secretary by the head of the agricultural statistics body as being the gross value of production in that year of all of the goods that: are prescribed by the rules for the purposes of paragraph 29(5)(a); and that are the produce of the main fishing industry, whether it is managed by or on behalf of the Commonwealth, a State or a Territory. 39

340. A note to subsection 29(5) would refer the reader to section 4 for the definition of agricultural statistics body. Effect of substituted amounts 341. Subsection 29(6) would provide that, once the Secretary has determined an amount under subsection 29(2) for the relevant financial year, the Secretary must: a. for the relevant financial year, disregard any amount provided to the Secretary by the head of the agricultural statistics body in substitution for a total main fishing industry GVP amount; and b. take the substituted amount into account in determining an amount under subsection 29(2) for each of the next two financial years after the relevant financial year. 342. The purpose of this subsection is to provide FRDC with certainty that, once determined, the average total main fishing industry GVP amount, and related GVP limit, for the FRDC for a financial year, will not change. Section 30 Definition of average Commonwealth main fishing industry GVP amount 343. Subsection 30(1) would provide that the average Commonwealth main fishing industry GVP amount, for a financial year (the relevant financial year), is the amount determined under subsection 30(2) for the relevant financial year. 344. Subsection 30(2) would provide that, for the purposes of subsection 30(1), the Secretary must, by notifiable instrument, determine an amount for the relevant financial year as soon as practicable after the start of that year. Calculation is to be an average 345. Subsection 30(3) would provide that the average Commonwealth main fishing industry GVP amount is to be the average of the Commonwealth main fishing industry GVP amounts for each of the last three financial years before the relevant financial year. 346. Subsection 30(4) would provide that the Secretary must specify in the notifiable instrument each Commonwealth main fishing industry GVP amount the Secretary used to determine that average. 347. Subsection 30(5) would provide that the Commonwealth main fishing industry GVP amount, for a financial year, is the amount provided to the Secretary by the head of the agricultural statistics body as being the gross value of production in that year of all of the goods that: are prescribed by the rules for the purposes of paragraph 30(5)(a); and are the produce of the main fishing industry so far as it is managed by or on behalf of the Commonwealth. 348. A note to subsection 30(5) would refer the reader to section 4 for the definition of agricultural statistics body. Effect of substituted amounts 349. Subsection 30(6) would provide that, once the Secretary has determined an amount under subsection 30(2) for the relevant financial year, the Secretary must: 40

a. for the relevant financial year, disregard any amount provided to the Secretary by the head of the agricultural statistics body in substitution for a Commonwealth main fishing industry GVP amount; and b. take the substituted amount into account in determining an amount under subsection 30(2) for each of the next two financial years after the relevant financial year. 350. The purpose of this subsection is to provide FRDC with certainty that, once determined, the average Commonwealth main fishing industry GVP amount, and the related GVP limit, for the FRDC for a financial year, will not change. Section 31 Definition of average State/Territory main fishing industry GVP amount 351. Subsection 31(1) would provide that the average State/Territory main fishing industry GVP amount, for a financial year (the relevant financial year) and a State or Territory, is the amount determined under subsection 31(2) for the relevant financial year and the State or Territory. 352. Subsection 31(2) would provide that, for the purposes of subsection 31(1), the Secretary must, by notifiable instrument, determine an amount for the relevant financial year and the State or Territory as soon as practicable after the start of that year. Calculation is to be an average 353. Subsection 31(3) would provide that the average State/Territory main fishing industry GVP amount is to be the average of the State/Territory main fishing industry GVP amounts for the State or Territory and for each of the last three financial years before the relevant financial year. 354. Subsection 31(4) would provide that the Secretary must specify in the notifiable instrument each State/Territory main fishing industry GVP amount the Secretary used to determine that average. 355. Subsection 31(5) would provide that the State/Territory main fishing industry GVP amount, for a State or Territory and a financial year, is the amount provided to the Secretary by the head of the agricultural statistics body as being the gross value of production in that year of all of the goods that: are prescribed by the rules for the purposes of paragraph 31(5)(a); and are the produce of the main fishing industry so far as it is managed by or on behalf of the State or Territory. 356. A note to subsection 31(5) would refer the reader to section 4 for the definition of agricultural statistics body. Effect of substituted amounts 357. Subsection 31(6) would provide that, once the Secretary has determined an amount under subsection 31(2) for the relevant financial year and a State or Territory, the Secretary must: a. for the relevant financial year, disregard any amount provided to the Secretary by the head of the agricultural statistics body in substitution for a State/Territory main fishing industry GVP amount for a State or Territory; and 41

b. take the substituted amount into account in determining an amount under subsection 31(2) for each of the next two financial years after the relevant financial year and for the State or Territory. 358. The purpose of this subsection is to provide FRDC with certainty that, once determined, the average State/Territory main fishing industry GVP amount, and related GVP limit, for the FRDC for a financial year, will not change. Section 32 Definition of average declared fishery GVP amount 359. Subsection 32(1) would provide that the average declared fishery GVP amount, for a financial year (the relevant financial year) and a declared fishery, is the amount determined under subsection 32(2) for the relevant financial year and the declared fishery. 360. Subsection 32(2) would provide that for the purposes of subsection 32(1), the Secretary must, by notifiable instrument, determine an amount for the relevant financial year and the declared fishery as soon as practicable after the start of that year. Calculation is to be an average 361. Subsection 32(3) would provide that the average declared fishery GVP amount is to be the average of the declared fishery GVP amounts for the declared fishery and for each of the last three financial years before the relevant financial year. 362. Subsection 32(4) would provide that the Secretary must specify in the notifiable instrument under subsection 32(2) each declared fishery GVP amount the Secretary used to determine that average. 363. Subsection 32(5) would provide that the declared fishery GVP amount, for a declared fishery and a financial year, is the amount provided to the Secretary by the head of the agricultural statistics body as being the gross value of production in that year of all of the goods that are the produce of the declared fishery. 364. A note to subsection 32(5) would refer the reader to section 4 for the definition of agricultural statistics body. 365. Section 5 would provide the meaning of declared fishery. Effect of substituted amounts 366. Subsection 32(6) would provide that, once the Secretary has determined an amount under subsection (2) for the relevant financial year and a declared fishery, the Secretary must: a. for the relevant financial year, disregard any amount provided to the Secretary by the head of the agricultural statistics body in substitution for a declared fishery GVP amount for the declared fishery; and b. take the substituted amount into account in determining an amount under subsection 32(2) for each of the next two financial years after the relevant financial year and for the declared fishery. 367. The purpose of this subsection is to provide FRDC with certainty that, once determined, the average declared fishery GVP amount, and related GVP limit, for the FRDC for a financial year, will not change. 42

Subdivision C--Spending requirements for declared recipient bodies Overview 368. This Subdivision would set out the requirements for spending of matching payments by declared recipient bodies. 369. The spending requirements would be consolidated from relevant RDC Acts into one consistent set of provisions for all declared recipient bodies. There would be separate spending requirements for statutory recipient bodies. 370. The purpose of the spending requirements is to ensure matching payments are invested in R&D activities or for purposes that have a sufficient nexus with those activities. Section 33 Spending of matching payments 371. This section would provide for the matters on which declared recipient bodies may spend matching payments that have been paid by the Commonwealth. 372. Subsection 33(1) would provide that if a declared recipient body is paid and amount under subsection 23(1), then the amount can only be spent by the body on matters covered in section 33, namely research and development activities, debts and other matters. Research and development activities 373. Subsection 33(2) would explain that a matter is research and development activities, for a designated primary industry sector in relation to the body, where expenditure on those activities is: (a) for the benefit of that sector and the Australian community generally; and is (b) in accordance with the body's funding agreement; and (c) in accordance with rules (if any). 374. See section 9 for definition of research and development activity and section 4 for definition of designated primary industry sector. Debt 375. Subsection 33(3) would explain that a matter is making a payment of a debt (if any) mentioned in subsection 86(2), to the extent that the debt arose because of a purported matching payment under subsection 23(1) to the body. Matters prescribed by the rules 376. Subsection 33(4) would explain that a matter is any matter that is prescribed by the rules for the purposes of this subsection in relation to: (a) the body; and (b) a designated primary industry sector in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 377. The purpose of this subsection is to allow spending of matching funding on industry- specific activities. These activities would be prescribed in the rules. Subdivision D--Spending requirements for statutory recipient bodies Overview 378. This Subdivision would set out the requirements for spending of matching payments by statutory recipient bodies. 43

379. The spending requirements would replace provisions in the PIRD Act and the Wine Act and would apply consistently to all statutory recipient bodies with some exceptions for Wine Australia. There would be separate spending requirements for declared recipient bodies. 380. The purpose of the spending requirements is to ensure matching payments are invested in R&D activities or for purposes that have a sufficient nexus with those activities. 381. Some statutory recipient bodies would also be allowed to spend matching payments on general matters related to their statutory functions and powers consistent with arrangements under the PIRD Act. 382. The FRDC would have different spending requirements to the other statutory recipient bodies. Section 34 Spending of matching payments--statutory recipient bodies except the Fisheries Research and Development Corporation 383. This section would provide for the matters on which a statutory recipient body may spend a matching payment it has been paid by the Commonwealth. This section does not apply to the FRDC. 384. Subsection 34(1) would provide that if a statutory body is paid an amount under subsection 23(1), then amount can only be spent by the body on matters covered in section 34 i.e. R&D activities, debts, general payments for some statutory bodies and other matters. Research and development activities 385. Subsection 34(2) would provide that a matter is research and development activities, for a designated primary industry sector in relation to the body, where expenditure on those activities is: (a) for the benefit of that sector and the Australian community generally; and (b) in accordance with the body's funding agreement and annual operational plan; and (c) in accordance with the rules (if any). 386. See section 9 for definition of research and development activity and section 4 for definition of designated primary industry sector. Debt 387. Subsection 34(3) would provide that a matter is making a payment of a debt (if any) mentioned in subsection 86(2), to the extent that the debt arose because of a purported matching payment under subsection 23(1) to the body. General payments for some statutory recipient bodies 388. Subsection 34(4) would provide that for a statutory recipient body (other than Wine Australia) a matter is doing the following: a. paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under the PIRD Act. 389. The purpose of this subsection is to allow statutory bodies established under the PIRD Act to spend matching payments on activities and expenses that relate to their general 44

functions and powers as statutory corporations. Arrangements under the PIRD Act would be continued through this subsection. The Wine Act did not provide for this in relation to the spending of matching payments. 390. Subsection 34(5) would provide that the matter of paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers under paragraph 34(4)(a) does not apply to a matter covered by subsection 21(2), (4), (5) or (6). 391. The purpose of this subsection is to ensure that matching funding would not be spent on marketing activities and related matters. Matters prescribed by the rules 392. Subsection 34(6) would provide that a matter is any matter that is prescribed by the rules for the purposes of this subsection in relation to the body. The rules may provide that expenditure by the body on the matter is subject to any conditions prescribed by the rules. 393. The purpose of this subsection is to allow spending of matching funding on other activities. These activities would be prescribed in the rules. Section 35 Spending of matching payments--Fisheries Research and Development Corporation 394. This section would set out the matters on which the FRDC may spend a matching payment it has been paid by the Commonwealth. 395. Subsection 35(1) would provide that if the FRDC is paid an amount under subsection 26(1) or 27(1), then the amount can only be spent by the FRDC on matters covered in section 35, namely R&D activities, debts, general payments and other matters. Research and development activities 396. Subsection 35(2) would provide that for an amount paid under subsection 26(1), a matter is research and development activities for the fishing industry (except any declared fishery), where expenditure on those activities is: (a) for the benefit of the fishing industry (except any declared fishery); and (b) the Australian community generally; and is (c) in accordance with the FRDC's funding agreement and annual operational plan; and (d) in accordance with the rules (if any). 397. Subsection 35(3) would provide that for a matching payment paid under subsection 27(1), a matter is research and development activities for the declared fishery, where expenditure on those activities is: (a) for the benefit of the declared fishery; and (b) the Australian community generally; and (c) in accordance with the FRDC's funding agreement and annual operational plan; and (d) in accordance with the rules (if any). 398. See section 9 for definition of research and development activity. Debt 399. Subsection 35(4) would provide that a matter is making a payment of a debt (if any) mentioned in subsection 86(2), to the extent that the debt arose because of a purported matching payment under subsection 26(1) or 27(1) to the FRDC. 45

General payments 400. Subsection 35(5) would provide that for an amount paid under subsection 26(1), a matter is doing the following (except in relation to any declared fishery): a. paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under the PIRD Act. 401. Subsection 35(6) would provide that for an amount paid under subsection 27(1), a matter is doing the following in relation to the declared fishery: a. paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under the PIRD Act. 402. Subsection 35(7) would provide that the matter of paying or discharging expenses, charges, obligations and liabilities incurred by the body in the performance of its functions or the exercise of its powers under paragraphs 35(5)(a) or (6)(a) does not apply to a matter covered by subsection 21(2), (4), (5) or (6). 403. The purpose of this subsection is to ensure that matching funding would not be spent on marketing activities and related matters. Matters prescribed by the rules 404. Subsection 35(8) would provide that a matter is any matter that is prescribed by the rules for the purposes of this subsection in relation to the FRDC. The rules may provide that expenditure by the FRDC on the matter is subject to any conditions prescribed by the rules. 405. The purpose of this subsection is to allow spending of matching funding on other activities. These activities would be prescribed in the rules. Division 4--Other payments to the Fisheries Research and Development Corporation Section 36 Commonwealth to make payments to the Fisheries Research and Development Corporation 406. This section sets out the other amounts that the Commonwealth must pay to the FRDC and the matters that the FRDC may spend those amounts on. Fishing levy 407. Subsection 36(1) would provide that the Commonwealth must pay to the FRDC amounts equal to the following amounts that are received by the Commonwealth: a. amounts of levy imposed by section 5 of the Fishing Levy Act 1991 to the extent that those amounts consist of the component of the levy worked out in accordance with the rules; 46

b. amounts by way of penalty under section 112 of the Fisheries Management Act 1991 to the extent that those amounts are attributable to the non-payment of that component. 408. The purpose of this subsection is to enable the payment to the FRDC of levy amounts to which section 15 (Commonwealth to make levy or charge payments) does not apply. At the time of introduction of the Bill, the fishing levy would be the only levy amounts in relation to the FRDC not collected under the Collection Bill. White spot disease repayment levy and white spot disease repayment export charge 409. Subsection 36(2) would provide that in relation to levy or charge imposed on farmed prawns by a provision prescribed by the rules for the purposes of the subsection, the Commonwealth must pay to the FRDC amounts equal to the amounts prescribed by the rules for the purposes of the subsection. 410. This subsection would reflect the unique disbursement arrangements of the white spot disease repayment levy and export charge. The levy and charge were imposed to enable the farmed prawn industry to repay industry's contribution to the assistance package provided to prawn farmers affected by the 2016-17 white spot disease outbreak. A small amount of levy and charge is likely to be collected over the amount required to repay the industry's share of the assistance package. This is because there is likely to be a lag between confirming the required amount has been collected and the legislative amendments required to stop the imposition of the levy or charge. To ensure that the excess levy and charge is spent for the benefit of the industry, the excess would be paid to the FRDC for spending on matters covered by the spending rule in subsection (3). Spending rule 411. Subsection 36(3) would provide that if the FRDC is paid amounts under subsection 36(1) or (2), those amounts may be spent by the FRDC only on matters covered by subsection 36(4), (6) or (8). Research and development activities 412. Subsection 36(4) would provide that a matter is research and development activities, for a designated primary industry sector in relation to the FRDC, where expenditure on those activities is: (a) for the benefit of that sector; and (b) in accordance with the FRDC's funding agreement and annual operational plan; and (c) in accordance with the rules (if any). 413. See section 9 for definition of research and development activity and section 4 for definition of designated primary industry sector. 414. Subsection 36(5) would provide that, without limiting paragraph 36(4)(c), the rules may require expenditure by the FRDC, of a part of the amounts paid under subsection 36(1) or (2), to be for the benefit of the designated primary industry sector prescribed by the rules. 415. The purpose of this subsection is to allow amounts paid to the FRDC under subsection 36(1) or (2) to be earmarked for expenditure for the benefit of a particular industry sector. For example, where a statutory recipient body is the recipient body for more than one designated primary industry sector, the rules could prescribe that an amount 47

equal to the R&D collected amounts received in respect of a particular primary industry sector must be spent on activities for the benefit of that sector. General payments 416. Subsection 36(6) would provide that a matter is doing the following: a. paying or discharging expenses, charges, obligations and liabilities incurred by the FRDC in the performance of its functions or the exercise of its powers; b. paying remuneration, allowances, fees or expenses payable under the PIRD Act. 417. Subsection 36(7) would provide that paragraph 36(6)(a) does not apply to a matter covered by subsection 21(2), (4), (5) or (6). 418. The purpose of this subsection is to ensure that fishing levy and white spot disease repayment levy and charge amounts would not be spent on marketing activities and related matters. Matters prescribed by the rules 419. Subsection 36(8) would provide that a matter is any matter that is prescribed by the rules for the purposes of this subsection in relation to the FRDC. The rules may provide that expenditure by the FRDC on the matter is subject to any conditions prescribed by the rules. 420. The purpose of this subsection is to allow spending of amounts related to the fishing and white spot disease repayment levies and export charges on other activities. These activities would be prescribed in the rules. Division 5--Appropriation Section 37 Appropriation 421. This section would provide that the Consolidated Revenue Fund is appropriated for the purposes of payments by the Commonwealth under subsection 15(1) (levy or charge payments to recipient bodies), 23(1) (matching payments to recipient bodies), 26(1) (matching payments to FRDC, fishing industry), 27(1) (matching payments to FRDC, declared fishery) or 36(1) or (2) (fishing levy or white spot disease repayment levy and export charge payments to FRDC). Division 6--Funding agreements and recipient bodies Overview 422. This Division would provide requirements relating to funding agreements with declared and statutory recipient bodies. 423. The Division also includes declaration, revocation and Ministerial directions provisions that would only apply to declared recipient bodies. Provisions relating to the establishment of, and Ministerial directions to, statutory recipient bodies would remain in the PIRD Act and the Wine Act. 424. These requirements would be consolidated from separate RDC Acts into one consistent set of provisions for all declared recipient bodies. The funding agreement provisions for statutory recipient bodies would slightly differ from the one's for declared recipient 48

bodies reflecting the different nature of statutory bodies and that they are established by the PIRD Act and Wine Act rather than declared under the proposed Act. Subdivision A--Funding agreements and declared recipient bodies Section 38 Funding agreements with companies 425. This section would enable the Minister to enter into or vary a funding agreement with a body that is registered as a company under the Corporations Act 2001 (Corporations Act). 426. Funding agreements provide an important mechanism for declared recipient bodies and the Commonwealth to agree on a range of governance and performance related matters to a level of detail that is not provided for in the proposed Act. Having these matters set out in detailed arrangements allows for them to be modified over time, without legislative change. 427. Funding agreements with declared recipient bodies were required under RDC Acts. New agreements would be required to be made under the proposed Act. 428. Subsection 38(1) would provide that in relation to the operation of the Act, the Minister may, on behalf of the Commonwealth, enter into, or vary, an agreement with a body that is registered as a company under the Corporations Act. 429. Subsection 38(2) would, without limiting subsection (1), set out the matters which the terms and conditions of the agreement may contain. 430. Subsection 38(3) would provide that the body must comply with the terms and conditions specified in the agreement. 431. Subsection 38(4) would provide that the rules may make provision in relation to the entry into, or the variation of, funding agreements. 432. This subsection is intended to allow the supplementation of the general requirements in the proposed Act with industry-specific requirements. Publishing requirements 433. Subsections 38(5) and (6) would set out the publishing requirements for funding agreements and varied funding agreements with a declared recipient body. 434. A note to subsection 38(6) would clarify that an agreement entered into as mentioned in paragraph 38(6)(a) may replace an earlier agreement with the body. 435. The publishing requirements would ensure appropriate transparency of and public access to funding agreements and variations. Section 39 Minister may declare bodies to be recipient bodies 436. This section would allow the Minister to declare a body to be a recipient body. 437. Subsection 39(1) would provide that the Minister may, by writing, declare a body to be a recipient body. The recipient body must be one that is prescribed by the rules for the purposes of subsection 39(1). 438. Being declared as a recipient body would entitle a company to receive money from the Commonwealth under Part 2, including levy and charge amounts and matching 49

payments. This entitlement would be accompanied by requirements that ensure that the role of a recipient body is undertaken responsibly. 439. Subsection 39(2) would provide that the rules may make provision in relation to the declaration of bodies as recipient bodies. 440. This subsection is intended to allow the supplementation of the general requirements in the proposed Act with industry-specific requirements. 441. Subsection 39(3) would provide that the Minister must not make a declaration under subsection 39(1) in relation to a recipient body unless: (a) the body is registered as a company under the Corporations Act; and (b) there is a funding agreement in force between the Commonwealth and the body; and (c) the Minister is satisfied that, if the body is so declared, the body will comply with its obligations under that funding agreement and the Act; and (d) the Minister is satisfied that any other requirements prescribed by the rules for the purposes of paragraph (3)(d) are satisfied. When declaration takes effect 442. Subsection 39(4) would provide that a declaration takes effect on the day specified in the declaration, which must not be earlier than the day the declaration is made. Copy of declaration to be given to body 443. Subsection 39(5) would provide that the Minister must give the body a copy of the declaration. Publication 444. Subsection 39(6) would provide that the Minister must cause a copy of the declaration to be published on the department's website. Tabling in Parliament 445. Subsection 39(7) would provide that the Minister must cause a copy of the declaration to be tabled in each House of the Parliament within five sitting days of that House after the day on which the declaration is made. 446. This requirement would ensure appropriate transparency and Parliamentary oversight of the declaration and would be consistent with the tabling requirements for revocations under subsection 40(7) and Ministerial directions under subsection 41(4). Declaration not a legislative instrument 447. Subsection 39(8) would clarify that the declaration is not a legislative instrument. 448. The purpose of this subsection is to clarify that a declaration under subsection 39(1) is merely declaratory of the law and is not a legislative instrument within the meaning of section 8 of the Legislation Act. List of declared recipient bodies 449. Subsection 39(9) would provide that the Minister must publish, by notifiable instrument, a list of the declared recipient bodies. Section 40 Minister may revoke declaration of a body as a recipient body 450. This section would allow the Minister to revoke a declaration made under subsection 39(1) that a body is a recipient body. Revocation of a declaration that a body 50

is a recipient body would mean that the body would no longer be eligible to receive payments under the Act. 451. The purpose of this section would be to ensure that a body's status as a declared recipient body can be ceased by the Minister in specified circumstances. Being declared as a recipient body entitles a company to receive money from the Commonwealth connected with levies and charges imposed on primary industry, as well as matching funding. This entitlement is based on the body's ability to conduct R&D, marketing or other activities for the benefit of relevant primary industries. To ensure the appropriate conduct of these activities, the Commonwealth must have the power to revoke a body's status as a declared recipient body when necessary. 452. Subsection 40(1) would provide that the Minister may, by writing, revoke a declaration under subsection 39(1) in relation to a recipient body if: a. the body requests the Minister in writing to revoke the declaration; or b. the Minister reasonably believes that the body has contravened the Act or the funding agreement with the body; or c. a funding agreement with the body has ceased to be in force and the Minister is satisfied that no further funding agreement will be entered into with the body; or d. the Minister reasonably believes that: i. the body's constitution is no longer appropriate for a body performing the functions of a recipient body; or ii. the body has failed to comply with its constitution; or e. an administrator of the body is appointed; or f. the body starts to be wound up or ceases to carry on business; or g. a receiver, or a receiver and manager, of property of the body is appointed (by a court or otherwise); or h. the body enters into a compromise or arrangement with some or all of its creditors. 453. Note 1 to subsection 40(1) would clarify that for paragraph 40(1)(b) an example of a contravention of the Act is a failure to comply with a direction under section 41. 454. Note 2 would direct the reader to section 85 for review of a revocation decision. When revocation takes effect 455. Subsection 40(2) would provide that a revocation of a declaration takes effect on the day specified in the revocation, which must not be earlier than the day the revocation is made. Copy of revocation to be given to body 456. Subsection 40(3) would require the Minister to give a body covered by a revocation a copy of the revocation. Publication 457. Subsection 40(4) would require the Minister to cause a copy of the revocation to be published on the department's website. 51

458. This subsection would ensure appropriate transparency of and public access to the revocation. Tabling in Parliament 459. Subsection 40(5) would provide that the Minister must cause a copy of a revocation to be tabled in each House of the Parliament within five sitting days of that House after the day on which the revocation is made. 460. This subsection would ensure appropriate transparency and Parliamentary oversight of the revocation and would be consistent with the tabling requirements for declarations under subsection 39(7) and Ministerial directions under subsection 41(4). Repayment of funds 461. Subsection 40(6) would provide that if the Minister revokes a declaration, the Minister may direct the body: a. to pay to the Commonwealth any amounts paid to the body under the Act that are held by the body at the time the revocation takes effect; and b. to make the payment within the period specified in the direction (which must be at least 28 days after the direction is given). 462. Subsection 40(7) would provide that subsection 40(6) does not apply to amounts required to meet the body's liabilities incurred, in connection with the Act or a funding agreement, before the time the revocation takes effect. 463. Subsection 40(8) would require the body to comply with the direction. 464. Subsection 40(9) would provide that if an amount payable by a body because of a direction under subsection 40(6) remains unpaid at the end of the period specified in the direction, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Instruments not legislative instruments 465. Subsection 40(10) would make clear that neither a revocation under subsection 40(1) nor a direction under subsection 40(6) is a legislative instrument. 466. The purpose of this subsection is to clarify that a revocation under subsection 40(1) and a direction under subsection 40(6) are merely declaratory of the law and are not legislative instruments within the meaning of section 8 of the Legislation Act. Section 41 Minister may give directions to declared recipient bodies 467. This section would authorise the Minister to give a direction to a declared recipient body in specified circumstances. 468. Subsection 41(1) would provide that the Minister may give a written direction to a declared recipient body if the Minister: a. is satisfied that the direction is in Australia's national interest because of exceptional and urgent circumstances; and b. is satisfied that the direction would not require the body to incur expenses greater than the sum of the amounts previously paid to the body under the Act that have 52

not been spent or committed and the amounts the body will receive under the Act during the period to which the direction relates; and c. has given the body's directors an adequate opportunity to discuss with the Minister the need for the proposed direction and the impact of compliance with subsections 41(3) to (5) on the body's commercial activities. 469. Subsection 41(2) would require the body to comply with the direction. Publication of direction 470. Subsection 41(3) would require the Minister to cause a copy of the direction to be published on the department's website as soon as practicable after the Minister has given the direction. 471. This subsection would ensure appropriate transparency of and public access to the direction. Tabling of direction 472. Subsection 41(4) would provide that the Minister must cause a copy of the direction to be tabled in each House of the Parliament within five sitting days of that House after the Minister has given the direction. 473. This requirement would ensure appropriate transparency and Parliamentary oversight of the direction and would be consistent with the tabling requirements for declarations under subsection 39(7) and revocations under subsection 40(5). Body to include details in annual report 474. Subsection 41(5) would require the body's annual report for each period to which the direction relates to include particulars of the direction and an assessment of the impact of the direction on the body's operations during the period. Exception 475. Subsection 41(6) would allow the Minister to make a written determination that subsections (3) to (5) (that relate to publication, tabling and reporting requirements) do not apply in relation to a direction given to a declared body if specified circumstances apply. For example, if the Minister is satisfied that publication or reporting would, or would be likely to, prejudice the commercial activities of the body or would be contrary to the public interest. The Minister would be required to give a copy of the determination to the body. Minister not a director of body 476. Subsection 41(7) would provide that the Minister is not a director of the body for the purposes of the Corporations Act merely because of the Minister's power to issue directions under subsection (1). Commonwealth does not exercise control over body 477. Subsection 41(8) would provide that the Commonwealth is not in a position to exercise control over the body merely because of the Minister's power to issue directions. 53

Instruments are not legislative instruments 478. Subsection 41(9) would clarify that a direction under subsection 41(1), or a determination under subsection 41(6), is not a legislative instrument. 479. The purpose of this subsection is to clarify that directions and determinations are merely declaratory of the law and are not legislative instruments within the meaning of section 8 of the Legislation Act. Subdivision B--Funding agreements with statutory recipient bodies Section 42 Funding agreements with statutory recipient bodies 480. This section would set out the requirements for funding agreements with statutory recipient bodies. 481. Funding agreements provide an important mechanism for statutory recipient bodies and the Commonwealth to agree on a range of governance and performance related matters to a level of detail that is not provided for in the proposed Act. Having these matters set out in detailed arrangements allows for them to be modified over time, without legislative change. 482. Funding agreements with statutory bodies were previously required under the PIRD Act and the Wine Act. New agreements would be required to be made under the proposed Act. 483. Subsection 42(1) would provide that the Minister must, on behalf of the Commonwealth, enter into an agreement with a statutory recipient body. 484. Subsection 42(2) would provide that if the Minister has entered into a funding agreement with a statutory recipient body under this section, the Minister may, on behalf of the Commonwealth vary the funding agreement or enter into another funding agreement with the body. 485. Subsection 42(3) would provide that, without limiting subsection (1) or (2), the funding agreement may contain terms and conditions dealing with the following matters: (a) management of any payments to the body under the Act; (b) any other matter in connection with the making or spending of those payments; (c) monitoring of the body's compliance with its obligations under the Act or agreement; (d) the provision of information by the body to the Commonwealth about a matter covered by paragraph 42(3)(a), (b) or (c); (e) the management of any payments to the body by the Commonwealth other than under the Act. 486. Subsection 42(4) would provide that the body must comply with the terms and conditions specified in the agreement. Publishing requirement 487. Subsection 42(5) would set out that if the Minister, on behalf of the Commonwealth, enters into, or varies, a funding agreement with a statutory recipient body under section 42, that body must publish a copy of the agreement, or the varied agreement, on its website as soon as practicable after the day the agreement was entered into or varied. 488. This requirement would ensure appropriate transparency of and public access to agreements. 54

Part 3--Funding for Animal Health Australia 489. This Part would set out the disbursement framework for the Commonwealth to enable payment of amounts of biosecurity activity and biosecurity response levy and charge components to AHA. The levy and charge components connected to the amounts disbursed to AHA would be prescribed in the Rules. 490. The provisions in this Part would largely replicate the provisions under the Australian Animal Health Council (Live-stock Industries) Funding Act 1996 with some changes to modernise and improve consistency across the proposed Act. New labels would be used for the levy and charge components disbursed to AHA: Australian Animal Health Council (Live- Proposed Act stock Industries) Funding Act 1996 • Australian Animal Health Council • Biosecurity activity component levy or charge • Emergency Animal Disease • Biosecurity response component Response (EADR) levy or charge • Horse disease response levy 491. It is intended that the amounts of biosecurity activity and response levy or charge components paid to AHA would be applied in the same way as under the previous Act. 492. AHA is a not-for-profit company created to coordinate the government-industry partnership for animal health and biosecurity in Australia. AHA's members include the Australian Government, state and territory governments, livestock industries and associate members. AHA facilitates a national approach to enhancing Australia's animal health status through government and industry partnerships for disease preparedness, prevention, emergency response and management. Division 1--Simplified outline of this Part Section 43 Simplified outline of this Part 493. The simplified outline is included to assist the reader to understand the substantive provisions of the Part; however, it is not intended to be comprehensive. The reader should rely on the substantive provisions of the Part to which the outline relates. Division 2--Funding for Animal Health Australia Subdivision A--Payments relating to biosecurity activity Section 44 Commonwealth to make payments--collected amounts relating to biosecurity activity 494. This section would provide that the Commonwealth must make payments to AHA of amounts equal to the sum of the following amounts that are received by or on behalf of the Commonwealth in relation to an AHA commodity/service: a. amounts of a levy or charge imposed by a provision (of the regulations made under one of the Imposition Bills) prescribed by the rules in relation to AHA, to the 55

extent that those amounts are equal to the components of the rate of that levy or charge prescribed by the rules; b. in relation to that levy or charge--amounts paid by a person under rules made for the purposes of paragraph 10(1)(a) of the Collection Act, to the extent that those amounts are equal to those components; c. amounts by way of penalty under section 9 or 11 of the Collection Act, to the extent that those amounts are attributable to the non-payment of those components or of amounts equal to those components. 495. The Rules would prescribe the relevant levies and charges and the components of levy and charge that the amount to be paid would be based on. 496. See section 4 for definition of AHA commodity/service. Section 45 Application of money Payment of Commonwealth costs 497. Subsection 45(1) would provide that if AHA receives payments under section 44, AHA must apply the payments in making a payment to the Commonwealth of amounts equal to the Commonwealth's costs in: (a) collecting or recovering amounts covered by paragraphs 44(1)(a), (b) or (c); and (b) administering section 44 in relation to making of the payments to AHA under that section. 498. Subsection 45(2) would require the Secretary to give AHA written notice of the amount of the Commonwealth's costs and the period within which AHA must pay the amount. Debt 499. Subsection 45(3) would provide that if an amount payable by AHA to the Commonwealth remains unpaid at the end of that period, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Activities promoting or maintaining health of animals, plants, fungi or algae 500. Subsection 45(4) would provide that if AHA receives payments under section 44, AHA may apply the payments consistent with its constitution, on activities, including biosecurity activities, that relate to the promotion or maintenance of the health of animals, plants, fungi or algae, or activities incidental to these activities. 501. The purpose of incidental activities is to cover activities that are connected or associated with the promotion or maintenance of the health of animals, plants, fungi or algae including operating costs and overheads. Section 46 Effect of refunds 502. This section would provide for the set-off, or recovery from AHA, of an amount equal to an amount refunded by the Commonwealth, for example, in respect of levy or charge paid in error. Set-off 503. Subsection 46(1) would set out the circumstances in which the Commonwealth may set off an amount equal to the refund against a payment the Commonwealth must make under section 44 in relation to an AHA commodity/service. 56

504. A note to subsection 46(1) would explain to the reader that the Commonwealth might refund an amount because a person paid too much levy or charge. 505. The purpose of this set-off provision would be to provide the Commonwealth with the ability to administer refunds in the most efficient way. Notice requiring Animal Health Australia to pay amount to Commonwealth 506. Subsection 46(2) would provide that if the Commonwealth is not able to set off an amount under subsection 46(1), the Secretary may give AHA written notice: • specifying the amount the Commonwealth is not able to set off (paragraph 46(2)(a)); and • requiring AHA to pay the Commonwealth the amount specified in the notice (paragraph 46(2)(b)); and • specifying the period within which AHA must pay the amount specified in the notice (paragraph 46(2)(c)). 507. This subsection would impose an obligation on AHA to pay to the Commonwealth an amount equal to the refund, if the Commonwealth is not able to set off the amount against other payments to AHA. 508. Subsection 46(3) would provide that AHA must pay the amount under subsection 46(2) before applying payments made to AHA under section 44 in accordance with subsection 45(4). Debt 509. Subsection 46(4) would provide that if AHA is required by a notice under subsection 46(2) to pay an amount to the Commonwealth and that amount remains unpaid, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Section 47 Recoverable payments--payment of debt 510. This section would provide that if AHA receives payments under section 44, it must apply the payments in making a payment of any debt mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 44 to AHA. 511. Subsection 47(2) would provide that AHA must do so before applying the payments under section 44 in accordance with subsection 45(4). Subdivision B--Payments relating to biosecurity response Section 48 Commonwealth to make payments--collected amounts relating to biosecurity response 512. This section would provide that the Commonwealth must make payments to AHA of amounts equal to the sum of the following amounts that are received by or on behalf of the Commonwealth in relation to an AHA commodity/service: a. amounts of a levy or charge imposed by a provision (of the regulations made under one of the Imposition Bills) prescribed by the rules in relation to AHA, to the extent that those amounts are equal to the components of the rate of that levy or charge prescribed by the rules; 57

b. in relation to that levy or charge--amounts paid by a person under rules made for the purposes of paragraph 10(1)(a) of the Collection Act, to the extent that those amounts are equal to those components; c. amounts by way of penalty under section 9 or 11 of the Collection Act, to the extent that those amounts are attributable to the non-payment of those components or of amounts equal to those components. 513. The Rules would prescribe the relevant levies and charges and the components of levy and charge that the amount to be paid would be based on. 514. See section 4 for definition of AHA commodity/service. Section 49 Application of money 515. Subsection 49(1) would set a condition that AHA must apply a payment made under section 48 in relation to an AHA commodity/service in accordance with the four priorities set out in subsections 49(2) to (5). 516. Subsections 49(2) to (5) would prescribe the four priorities. The priorities are listed from highest priority to lowest priority, that is, a priority in a later subsection is lower than a priority in an earlier subsection. Payment of Commonwealth costs 517. Subsection 49(2) would provide that the first priority is to apply the payment in paying the Commonwealth amounts equal to the Commonwealth's costs in: (a) collecting or recovering the levy or charge; and (b) administering section 48 in relation to making of the payments to AHA. 518. A note to subsection 49(2) would direct the reader to subsections 49(7) and (8) for recovery of Commonwealth costs. Reimbursing Animal Health Australia 519. Subsection 49(3) would provide that the second priority is to apply the payment in meeting, or reimbursing AHA for meeting, costs it incurs in receiving and applying the payment in accordance with the four priorities and before or in the financial year in which the payment is made. Discharging liability under emergency animal biosecurity response deed 520. Subsection 49(4) would provide that the third priority is to apply the payment in making a payment to the Commonwealth if the payment is on behalf of a relevant animal health body for the AHA commodity/service and for the purpose of discharging a liability of that body to the Commonwealth under an emergency animal biosecurity response deed relating to the AHA commodity/service. 521. See section 4 for definition of emergency animal biosecurity response deed and section 7 for definition of relevant animal health body. Promotion or maintenance of health of animals, plants fungi or algae and research and development 522. Subsection 49(5) would provide that the fourth priority is to apply the payment, in accordance with a request by a relevant animal health body for the AHA commodity/service, to promote or maintain the health of animals, plants, fungi or algae to which the AHA commodity/service relates or to make a payment to an organisation 58

that is concerned with research and development in relation to the AHA commodity/service. 523. See section 10 for definition of research and development. When payment can be applied in accordance with lower priority 524. Subsection 49(6) would provide that the condition that AHA apply the payment in accordance with the four priorities would not be contravened by AHA applying the payment in accordance with a lower priority if the payment could not be applied in accordance with a higher priority. Recovery of Commonwealth costs 525. Subsection 49(7) would provide that the Secretary must inform AHA of the amount of costs referred to in subsection 49(2) and when the amount is due to be paid. 526. Subsection 49(8) would provide that an amount payable by AHA to the Commonwealth under subsection 49(2) that remains unpaid is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Section 50 Effect of refunds 527. This section would provide for the set-off, or recovery from AHA, of an amount equal to an amount refunded by the Commonwealth, for example, in respect of amounts of levy or charge paid in error. Set-off 528. Subsection 50(1) would set out the circumstances in which the Commonwealth may set off an amount equal to the refund against a payment the Commonwealth must make under section 48 in relation to an AHA commodity/service. 529. A note to subsection 50(1) would explain to the reader that the Commonwealth might refund an amount because a person paid too much levy or charge. 530. The purpose of this set-off provision would be to provide the Commonwealth with the ability to administer refunds in the most efficient way. Notice requiring Animal Health Australia to pay amount to Commonwealth 531. Subsection 50(2) would provide that if the Commonwealth is not able to set off an amount under subsection 50(1), the Secretary may give AHA a written notice specifying the amount the Commonwealth is not able to set off. Payment by Animal Health Australia to Commonwealth 532. Subsection 50(3) would provide that, where any payments made to AHA under section 48 have yet to be fully applied, those payments must be applied to paying as much as possible of the amount specified in the notice under subsection 50(2) before they can be applied in accordance with the fourth priority in section 49. 533. This subsection would impose an obligation on AHA to pay to the Commonwealth an amount equal to so much of the refund as AHA has not already applied to other priorities, if the Commonwealth is not able to set off the amount against other payments to AHA. 59

Section 51 Recoverable payments--payment of debt 534. This section would provide that if AHA receives payments under section 48, it must apply the payments in making a payment of any debt mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 48. 535. Subsection 51(2) would provide that AHA must do so before applying the payments under section 48 in accordance with the fourth priority in section 49. Subdivision C--Appropriation Section 52 Appropriation 536. This section would provide that the Consolidated Revenue Fund is appropriated for the purposes of payments by the Commonwealth under subsection 44(1) (biosecurity activity levy or charge payments) or 48(1) (biosecurity response levy or charge payments). 60

Part 4--Funding for Plant Health Australia 537. This Part would set out the disbursement framework for the Commonwealth to enable payment of amounts of biosecurity activity and biosecurity response levy and charge components to PHA. The levy and charge components connected to the amounts disbursed to PHA would be prescribed in the Rules. 538. The provisions in this Part would largely replicate the provisions under the previous Plant Health Australia (Plant Industries) Funding Act 2002 with some changes to modernise and improve consistency across the proposed Act. New labels would be used for the levy and charge components disbursed to PHA: Plant Health Australia (Plant Industries) Proposed Act Funding Act 2002 • PHA levy or charge • Biosecurity activity component • Emergency Plant Pest Response • Biosecurity response component (EPPR) levy or charge 539. It is intended that the amounts of biosecurity activity and response levy or charge components paid to PHA would be applied in the same way as under the previous Act. 540. PHA is a not-for-profit company created to coordinate the government-industry partnership for plant health and biosecurity in Australia. PHA's members include the Australian Government, state and territory governments, plant industries and associate members. PHA facilitates a national approach to enhancing Australia's plant health status through government and industry partnerships for pest preparedness, prevention, emergency response and management. Division 1--Simplified outline of this Part Section 53 Simplified outline of this Part 541. The simplified outline is included to assist the reader to understand the substantive provisions of the Part; however, it is not intended to be comprehensive. The reader should rely on the substantive provisions of the Part to which the outline relates. Division 2--Funding for Plant Health Australia Subdivision A--Payments relating to biosecurity activity Section 54 Commonwealth to make payments--collected amounts relating to biosecurity activity 542. This section would provide that the Commonwealth must make payments to PHA of amounts equal to the sum of the following amounts that are received by or on behalf of the Commonwealth in relation to a PHA commodity/service: a. amounts of a levy or charge imposed by a provision (of the regulations made under one of the Imposition Bills) prescribed by the rules in relation to PHA, to the extent that those amounts are equal to the components of the rate of that levy or charge prescribed by the rules; 61

b. in relation to that levy or charge--amounts paid by a person under rules made for the purposes of paragraph 10(1)(a) of the Collection Act, to the extent that those amounts are equal to those components; c. amounts by way of penalty under section 9 or 11 of the Collection Act, to the extent that those amounts are attributable to the non-payment of those components or of amounts equal to those components. 543. The Rules would prescribe the relevant levies and charges and the components of levy and charge that the amount to be paid would be based on. 544. See section 4 for definition of PHA commodity/service. Section 55 Application of money Payment of Commonwealth costs 545. Subsection 55(1) would provide that if PHA receives payments under section 54, PHA must apply the payment in making a payment to the Commonwealth of amounts equal to the Commonwealth's costs in: (a) collecting or recovering amounts covered by paragraphs 54(1)(a), (b) or (c); and (b) administering section 54 in relation to making of the payments to PHA. 546. Subsection 55(2) would require the Secretary to give PHA written notice of the amount of the Commonwealth's costs and the period within which PHA must pay the amount. Debt 547. Subsection 55(3) would provide that if an amount payable by PHA remains unpaid at the end of that period, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Activities promoting or maintaining health of plants, animals, fungi or algae 548. Subsection 55(4) would provide that if PHA receives payments under section 54 PHA may apply the payments consistent with its constitution, on activities, including biosecurity activities, that relate to the promotion or maintenance of the health of plants, animals, fungi or algae, or activities incidental to these activities. 549. The purpose of incidental activities is to cover activities that are connected or associated with the promotion or maintenance of the health of plants, animals, fungi or algae including operating costs and overheads. Section 56 Effect of refunds 550. This section would provide for the set-off, or recovery from PHA, of an amount equal to an amount refunded by the Commonwealth, for example, in respect of levy or charge paid in error. Set-off 551. Subsection 56(1) would set out the circumstances in which the Commonwealth may set off an amount equal to the refund against a payment the Commonwealth must make under section 54 in relation to a PHA commodity/service. 552. A note to subsection 56(1) would explain to the reader that the Commonwealth might refund an amount because a person paid too much levy or charge. 62

553. The purpose of this set-off provision would be to provide the Commonwealth with the ability to administer refunds in the most efficient way. Notice requiring Plant Health Australia to pay amount to Commonwealth 554. Subsection 56(2) would provide that if the Commonwealth is not able to set off an amount under subsection 56(1), the Secretary may give PHA a written notice: a. specifying the amount the Commonwealth is not able to set off (paragraph 56(2)(a)); and b. requiring PHA to pay the Commonwealth the amount specified in the notice (paragraph 56(2)(b)); and c. specifying the period within which PHA must pay the amount specified in the notice (paragraph 56(2)(c)). 555. This subsection would impose an obligation on PHA to pay to the Commonwealth an amount equal to the refund, if the Commonwealth is not able to set off the amount against other payments to PHA. 556. Subsection 56(3) would provide that PHA must pay the amount under subsection 56(2) before applying payments made to PHA under section 54 in accordance with subsection 55(4). Debt 557. Subsection 56(4) would provide that if PHA is required by a notice under subsection 56(2) to pay an amount to the Commonwealth and that amount remains unpaid, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Section 57 Recoverable payments--payment of debt 558. This section would provide that if PHA receives payments under section 54, it must apply the payments in making a payment of any debt mentioned in subsection 86(2), to the extent that the debt arose because of a purported payment under section 54. 559. Subsection 57(2) would provide that PHA must do so before applying the payments under section 54 in accordance with subsection 55(4). Subdivision B--Payments relating to biosecurity response Section 58 Commonwealth to make payments--collected amounts relating to biosecurity response 560. This section would provide that the Commonwealth must make payments to PHA of amounts equal to the sum of the following amounts that are received by or on behalf of the Commonwealth in relation to a PHA commodity/service: a. amounts of a levy or charge imposed by a provision (of the regulations made under one of the Imposition Bills) prescribed by the rules in relation to Plant Health Australia, to the extent that those amounts are equal to the components of the rate of that levy or charge prescribed by the rules; b. in relation to that levy or charge--amounts paid by a person under rules made for the purposes of paragraph 10(1)(a) of the Collection Act, to the extent that those amounts are equal to those components; 63

c. amounts by way of penalty under section 9 or 11 of the Collection Act, to the extent that those amounts are attributable to the non-payment of those components or of amounts equal to those components. 561. The Rules would prescribe the relevant levies and charges and the components of levy and charge that the amount to be paid would be based on. 562. See section 4 for definition of PHA commodity/service. Section 59 Application of money 563. Subsection 59(1) would set a condition that PHA must apply a payment made under section 58 in relation to a PHA commodity/service in accordance with the five priorities set out in subsections 59(2) to (7). 564. Subsections 59(2) to (7) would prescribe the five priorities. The priorities are listed from highest priority to lowest priority, that is, a priority in a later subsection is lower than a priority in an earlier subsection. Payment of Commonwealth costs 565. Subsection 59(2) would provide that the first priority is to apply the payment in paying the Commonwealth amounts equal to the Commonwealth's costs in collecting or recovering the levy or charge and administering section 58 in relation to making of the payments to PHA. 566. A note to subsection 59(2) would direct the reader to subsections 59(9) and (10) for further rules about recovery of the Commonwealth's costs. Reimbursing Plant Health Australia 567. Subsection 59(3) would provide that the second priority is to apply the payment in meeting, or reimbursing PHA for meeting, costs it incurs in receiving and applying the payment in accordance with the five priorities and before or in the financial year in which the payment is made. Discharging liability under emergency plant biosecurity response deed 568. Subsection 59(4) would provide that the third priority is to apply the payment in making a payment to the Commonwealth if that payment is on behalf of a relevant plant health body for the PHA commodity/service referred to in subsection 59(1), and for the purpose of discharging a liability of that body to the Commonwealth under an emergency plant biosecurity response deed relating to the PHA commodity/service. 569. Subsection 59(5) would provide that the fourth priority is to apply the payment in making a payment to the Commonwealth if that payment is on behalf of, and at the request of, a relevant plant health body for the PHA commodity/service referred to in subsection 59(1), and for the purpose of discharging any liability of that body to the Commonwealth under an emergency plant biosecurity response deed relating to any other PHA commodity/service for which that body is a relevant plant health body. 570. Subsection 59(6) would set out the actions that must be taken if a body has a liability to the Commonwealth under an emergency plant biosecurity response deed relating to two or more PHA commodities/services for which the body is a relevant plant health body. 571. See section 8 for the definition of relevant plant health body and section 4 for the definition of emergency plant biosecurity response deed. 64

Promotion or maintenance of health of plants, animals, fungi or algae 572. Subsection 59(7) would provide that the fifth priority is to make payments to any person, in accordance with a request by the relevant plant health body for the PHA commodity/service referred to in subsection 59(1), for any purpose relating to the promotion or maintenance of the health of: plants, animals, fungi or algae to which that PHA commodity/service relates, or if the body is a relevant health body for any other PHA commodity/service, plants, animals, fungi or algae to which that other PHA commodity/service relates. When payment can be applied in accordance with lower priority 573. Subsection 59(8) would provide that the condition that PHA apply the payment in accordance with the five priorities would not be contravened by PHA applying the payment in accordance with a lower priority if the payment could not be applied in accordance with a higher priority. Recovery of Commonwealth costs 574. Subsection 59(9) would provide that the Secretary must inform PHA of the amount of costs referred to in subsection 59(2) and when the amount is due to be paid. 575. Subsection 59(10) would provide that an amount payable by PHA to the Commonwealth under subsection 59(2) that remains unpaid is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Section 60 Effect of refunds 576. This section would provide for the set-off, or recovery from PHA, of an amount equal to an amount refunded by the Commonwealth, for example, in respect of amounts of levy or charge paid in error. Set-off 577. Subsection 60(1) would set out the circumstances in which the Commonwealth may set off an amount equal to the refund against a payment the Commonwealth must make under section 58 in relation to a PHA commodity/service. 578. A note to subsection 60(1) would explain to the reader that the Commonwealth might refund an amount because a person paid too much levy or charge. 579. The purpose of this set-off provision would be to provide the Commonwealth with the ability to administer refunds in the most efficient way. Notice requiring Plant Health Australia to pay amount to Commonwealth 580. Subsection 60(2) provides that if the Commonwealth is not able to set off an amount under subsection 60(1), the Secretary may give PHA a written notice: a. specifying the amount the Commonwealth is not able to set off (paragraph 60(2)(a)); and b. requiring PHA to pay the Commonwealth the amount specified in the notice (paragraph 60(2)(b)); and c. specifying the period within which PHA must pay the amount specified in the notice (paragraph 60(2)(c)). 65

581. Subsection 60(3) would provide that PHA must pay the amount under subsection 60(2) before applying payments made to PHA under section 58 in accordance with the fifth priority in section 59. 582. This subsection would impose an obligation on PHA to pay to the Commonwealth an amount equal to the refund, if the Commonwealth is not able to set off the amount against other payments to PHA. Debt 583. Subsection 60(4) would provide that if PHA is required by a notice under subsection 60(2) to pay an amount to the Commonwealth and that amount remains unpaid, the amount is a debt due to the Commonwealth and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Section 61 Recoverable payments--payment of debt 584. This section would provide that if PHA receives payments under section 58, it must apply the payments in making a payment of any debt mentioned in subsection 85(2), to the extent that the debt arose because of a purported payment under section 58. 585. Subsection 61(2) would provide that PHA must do so before applying the payments under section 58 in accordance with the fifth priority in section 59. Subdivision C--Appropriation Section 62 Appropriation 586. This section would provide that the Consolidated Revenue Fund is appropriated for the purposes of payments by the Commonwealth under subsection 54(1) (biosecurity activity levy or charge payments) or 58(1) (biosecurity response levy or charge payments). 66

Part 5--Funding and information management for the National Residue Survey 587. This Part would set out the framework for the Commonwealth to credit amounts equal to NRS levy and charge components to the National Reside Survey Special Account. It would also provide for the effective management of information obtained or generated carrying out NRS activities or administering this Part. 588. The provisions in this Part would largely replicate the provisions under the National Residue Survey Administration Act 1992 (NRS Administration Act). It would continue in existence the National Residue Survey Account with the new name National Residue Survey Special Account (NRS Special Account). Provisions relating to information management would be modernised. 589. Established in the early 1960s, the NRS forms an important part of the Australian Government's strategy to minimise residues of pesticides, veterinary medicines and other contaminants, in plant and animal products. 590. The NRS Special Account would be credited for purposes related to various activities relating to the monitoring, testing and reporting of the level of contaminants in NRS products or the environment for the purposes of working out the potential sources or causes of the contaminants and the prevention of contamination in, and the management of risks associated with, contamination of NRS products. These activities are undertaken to ensure that Australia is a producer of clean food for the purposes of access to domestic and export markets. Division 1--Simplified outline of this Part Section 63 Simplified outline of this Part 591. The simplified outline is included to assist the reader to understand the substantive provisions of the Part; however, it is not intended to be comprehensive. The reader should rely on the substantive provisions of the Part to which the outline relates. Division 2--Funding for National Residue Survey Section 64 National Residue Survey Special Account 592. This section would provide that the National Reside Survey Account is continued in existence as the National Residue Survey Special Account which is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). 593. A note to subsection 64(1) would explain to the reader that the National Residue Survey Account was continued in existence under the former NRS Administration Act. Section 65 Credits to the National Residue Survey Special Account 594. Subsection 65(1) would provide that the Commonwealth must credit to the NRS Special Account amounts equal to amounts received by the Commonwealth: a. amounts of a levy or charge imposed by a provision (of the regulations made under one of the Imposition Bills) prescribed by the rules, to the extent that those amounts are equal to the components of the rate of that levy or charge prescribed by the rules; 67

b. in relation to that levy or charge--amounts paid by a person under rules made for the purposes of paragraph 10(1)(a) of the Collection Act, to the extent that those amounts are equal to those components; c. amounts by way of penalty under section 9 or 11 of the Collection Act, to the extent that those amounts are attributable to the non-payment of those components or of amounts equal to those components. 595. The Rules would prescribe the relevant levies and charges and the components of levy and charge that the amounts to be credited would be based on. It is intended that National Residue Survey components would be prescribed. 596. A note to subsection 65(1) would explain to the reader that if an item in an Appropriation Act covers any of the purposes of a special account, then amounts may be debited against the appropriation for that item and credited to that special account. 597. Subsection 65(2) would provide that the Commonwealth must also credit to the NRS Special Account amounts equal to amounts paid to the Commonwealth for the purposes of the National Residue Survey or the Account, and income derived by the Commonwealth from the investment of an amount standing to the credit of the Account. Section 66 Purposes of the National Residue Survey Special Account 598. Subsection 66(1) would specify the purposes of the NRS Special Account. Paragraph 66(1)(a) would provide that the purposes of the NRS Special Account are to make payments for purposes related to the following activities, each of which would be a main activity: a. the monitoring and reporting of the level of contaminants in NRS products; b. the testing, either on a random basis or in specific cases, of NRS products or the environment for the purpose of tracing the sources of contaminants and determining the causes of contamination; c. the testing and reporting of the level of contaminants in NRS products or the environment, and any associated activities, for the purpose of investigating the potential sources, and determining the potential causes, of such contaminants; d. the prevention of contamination in, and the management of risks associated with contamination of, NRS products. 599. Paragraph 66(1)(b) would provide that the purposes of the NRS Special Account are also meeting or reimbursing the Commonwealth's costs in relation to the following: a. collecting or recovering the amounts covered by paragraphs 65(1)(a), (b) and (c); b. administering paragraphs 65(1)(a), (b) and (c); c. the carrying out of a main activity under paragraph 66(1)(a); or d. the carrying out of an activity that facilitates a main activity or that is incidental or ancillary to a main activity. It is intended that such expenditure would include, for example, the carrying out of activities such as procurement, legal services and IT services. 600. Paragraphs 66(1)(c) and (d) would provide for repayments of unspent amounts and refunds for overpayments respectively. 68

601. A note to subsection 66(1) would direct the reader's attention to section 80 of the PGPA Act for information about special accounts. 602. Subsection 66(2) would provide a non-exhaustive list of examples of the types of expenditure that would be meeting or reimbursing the Commonwealth's costs under paragraph 66(1)(b). Section 67 Report about National Residue Survey Special Account 603. This section would set out the Secretary's reporting requirements in the department's annual report for a financial year in relation to the operation of the NRS Special Account. Division 3--Information management 604. This Division would enable effective management of relevant NRS information. The Division would provide for the use and disclosure of relevant NRS information, while ensuring that protected information is afforded appropriate safeguards. Subdivision A--Authorised uses and disclosures of relevant NRS information Overview 605. This subdivision would provide authorised uses and disclosures of relevant NRS information by entrusted persons. 606. The terms relevant NRS information and entrusted person would be defined in section 4. 607. Entrusted persons would be permitted to deal with relevant NRS information in relation to the purposes of the NRS Special Account and other matters outlined in this Subdivision. 608. There would be a separate rule-making power for the use or disclosure of relevant NRS information to specific classes of persons, for specific purposes. 609. A note would clarify that each provision in this Subdivision that authorises the use or disclosure of information provides an authorisation for the purposes of the Privacy Act 1998 and other laws. Section 68 Use or disclosure for National Residue Survey activities 610. This section would set out that an entrusted person may use or disclose relevant NRS information in the course of or for the purposes of carrying out the main activities covered by paragraph 66(1)(a) and paid for with amounts debited from the NRS Special Account, administering Part 5 or assisting another person to administer Part 5. 611. Entrusted person would be defined in section 4. Section 69 Use or disclosure for the purposes of other Acts 612. This section would authorise the use or disclosure of relevant NRS information by an entrusted person for the purposes of the administration of an Act (other than the Act) that is administered by the Minister. For example, an entrusted person would be able to use or disclose relevant NRS information for the purposes of administering the Biosecurity Act 2015, being another Act that is currently administered by the Minister. 613. The purpose of this section would be to help ensure effective and efficient administration of other relevant legislation in the Minister's portfolio. 69

Section 70 Disclosure to authorities of the Commonwealth, a State or Territory 614. This section would set out the circumstances under which an entrusted person may disclose relevant NRS information to an authority of the Commonwealth, a State or a Territory that is responsible for the monitoring or regulation of agricultural or veterinary chemical residues and contaminants in NRS products or in the environment. The disclosure must be for the purpose of such monitoring or regulation or the management of associated risks. Section 71 Disclosure to foreign governments etc. for export, trade and other purposes 615. This section would set out the circumstances under which an entrusted person may disclose relevant NRS information to a foreign government, an authority or agency of a foreign government or an international body of an intergovernmental character. These circumstances are limited to disclosure for the purposes of the export of goods, managing Australia's international relations in respect of trade, or giving effect to Australia's international obligations. 616. This permitted disclosure is intended to allow for the disclosure of relevant NRS information to foreign governments for the purposes of the export of goods from Australia or managing Australia's international relations in respect of trade. In addition, Australia's international obligations may also require the reporting of certain information to foreign countries or international bodies of an intergovernmental character in relation to trade and export. Section 72 Disclosure to persons holding an approval 617. Subsection 72(1) would provide that an entrusted person may disclose relevant NRS information to a person who holds an approval in force under section 72. 618. The purpose of this section is to provide for a similar approvals process as set out in section 11 of the NRS Administration Act (Release of information) with appropriate modifications. Approvals 619. Subsections 72(2) to (6) would provide for the Secretary to grant an approval under section 72 on request. The Secretary may only grant the approval if satisfied the person requires relevant NRS information to enable them to monitor, regulate or manage agricultural or veterinary chemical residues or contaminants in NRS products or the environment, and an approval must specify the purposes for which the person may use or disclose relevant NRS information the person receives under subsection 72(1). 620. Subsection 72(7) would require a refusal to be given by the Secretary by written notice and include reasons. 621. Subsection 72(8) would provide that an approval granted by the Secretary under subsection 72(3) is not a legislative instrument. 622. The purpose of this subsection is to clarify that approvals are merely declaratory of the law and are not legislative instruments within the meaning of section 8 of the Legislation Act. 623. Section 84, which deals with reconsideration and review of decisions, would provide for reconsideration of a decision of the Secretary under subsection 72(3) to refuse to grant a person an approval. 70

Secondary use or disclosure offence 624. Subsection 72(9) would set out the offence for secondary use or disclosure of relevant NRS information that is protected information under subsection 72(10) by a person who holds an approval in force under section 72 and who uses or discloses that information not in accordance with the approval. 625. The penalty for this offence would be 12 months imprisonment. Protected information 626. For the purposes of subsection 72(9), subsection 72(10) would prescribe the following kinds of information as protected information: a. information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence; b. information the disclosure of which could reasonably be expected to prejudice constitutional trade or commerce. Section 73 Disclosure for the purposes of law enforcement 627. Section 73 would provide that an entrusted person may disclose relevant NRS information to a body covered by subsection 73(2) if: a. the entrusted person reasonably believes the disclosure is necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty (such as a civil penalty provision), or for the protection of public revenue; and b. the functions of the body include that enforcement or protection; and c. for a body mentioned in paragraph 73(2)(b) or (d): i. the body has undertaken not to use or further disclose the information except in accordance with an agreement that is in force between the Commonwealth and the State or Territory and applies in relation to the information; and ii. the entrusted person is satisfied that the information will be used or further disclosed only in accordance with the agreement. 628. A body covered by subsection 73(2) would be: a. a Commonwealth entity (paragraph 73(2)(a)); b. a State or Territory body (paragraph 73(2)(b)); c. the Australian Federal Police (paragraph 73(2)(c)); d. the police force or police service of a State or Territory (paragraph 73(2)(d)). 629. The purpose of this section is to allow an entrusted person to disclose relevant information to certain Commonwealth and State or Territory bodies to enable the enforcement of relevant Australian laws. Section 74 Disclosure to a court, tribunal etc. 630. Subsection 74(1) would provide that an entrusted person may disclose relevant NRS information to a court exercising federal jurisdiction. 631. Subsection 74(2) would provide that an entrusted person may disclose relevant NRS information to a court or a tribunal, authority or person that has the power to require the 71

answering of questions or the production of documents, for certain purposes. Such purposes would be the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made under a law of the Commonwealth. 632. For example, a person whose interests are affected by a decision of the Secretary under subsection 72(3) to refuse to grant a person an approval may request the Secretary to reconsider the decision. Applications may then be made to the Administrative Appeals Tribunal for review of a decision on reconsideration: see paragraph 85(1)(b). Subsection 74(2) would provide that an entrusted person may disclose relevant information to the Tribunal where the disclosure is to assist the Tribunal to review the Secretary's decision. Section 75 Use or disclosure of statistics 633. Subsection 75 would provide that an entrusted person may use or disclose relevant NRS information if the information is statistics that are not likely to enable the identification of a person. 634. This permitted purpose recognises that the disclosure of statistics that contain no identifying information are unlikely to cause harm to any person. Section 76 Use or disclosure of publicly available information 635. Section 76 would provide that an entrusted person may use or disclose relevant NRS information if the information has already been lawfully made available to the public. 636. This authorisation recognises that there is usually no justifiable reason to prevent the disclosure of information that is lawfully publicly available and therefore already accessible. Section 77 Disclosure to person to whom information relates 637. Subsection 77 would provide that an entrusted person may disclose relevant NRS information to the person to whom the information relates. 638. This authorisation recognises that the interests of the person to whom relevant NRS information relates may benefit from, and will usually not be adversely affected by, disclosure of the information to themselves. Section 78 Use or disclosure with consent 639. Section 78 would provide that an entrusted person may use or disclose relevant NRS information that relates to a person if the person to whom the information relates has consented to the use or disclosure, and where the use or disclosure is in accordance with the consent provided. 640. This authorisation recognises that there is usually no justifiable reason to prevent the use or disclosure of information where the person concerned consents to the use or disclosure. It is intended that consent would include express consent or implied consent, consistent with the Privacy Act. Section 79 Disclosure to person who provided information 641. Section 79 would provide that an entrusted person may disclose relevant NRS information to the person who provided the information. 72

642. This authorisation recognises that there is usually no justifiable reason to prevent the disclosure of information to the person who provided it in the first place, as that person will have already seen the information. Section 80 Use or disclosure authorised by rules 643. This section would authorise the use or disclosure of relevant NRS information by a person in specified circumstances. 644. Subsection 80(1) would authorise the use of relevant NRS information if: a. the person is included in a class of persons prescribed by rules made for the purposes of paragraph 80(1)(a); and b. the use is for a purpose prescribed by rules made for the purposes of paragraph 80(1)(b); and c. the information is of a kind prescribed by rules made for the purposes of paragraph 80(1)(c); and d. the use complies with any conditions prescribed by rules made for the purposes of paragraph 80(1)(d). 645. Subsection 80(2) would authorise the disclosure of relevant NRS information if: a. the person is included in a class of persons prescribed by rules made for the purposes of paragraph 80(2)(a); and b. the disclosure is for a purpose prescribed by rules made for the purposes of paragraph 80(2)(b); and c. the information is of a kind prescribed by rules made for the purposes of paragraph 80(2)(c); and d. the disclosure complies with any conditions prescribed by rules made for the purposes of paragraph 80(2)(d). 646. Subsection 80(3) would provide that the rules made for the purposes of section 80 must specify the legislative power or powers of the Parliament in respect of which the rules are made. This is intended to ensure that any new authorisations for the use or disclosure of relevant NRS information will draw upon the necessary constitutional heads of power. 647. Subsection 80(4) would provide that other provisions of Subdivision A of Division 3 of Part 5 of the Act do not limit the rules that may be made for the purposes of section 80. The intention is that the rules under section 80 may, for example, prescribe the use or disclosure of relevant NRS information for a purpose that is the same as another authorisation in Subdivision A of Division 3, but in relation to a different class of persons. 648. Rules made under section 80 would be legislative instruments, which would be subject to parliamentary oversight through the disallowance process outlined in the Legislation Act. As such, the Parliament would have oversight of any future rules that allow the use or disclosure of relevant NRS information. 73

Subdivision B--Protected information Overview 649. This subdivision would ensure that certain information, the unauthorised use or disclosure of which might cause harm, would be protected. An offence provision would apply to entrusted persons where protected information is used or disclosed in a manner that is not required or authorised by a Commonwealth law or a prescribed State or Territory law. This would promote greater public confidence that such information will be sufficiently protected by the Commonwealth. Section 81 Offences and civil penalty--use or disclosure of protected information 650. This section would provide robust protections for protected information by providing an offence and civil penalty for unauthorised use or disclosure of protected information by entrusted persons. Offence 651. Subsection 81(1) would provide that a person commits an offence if they are, or have been, an entrusted person and they use or disclose protected information at subsection 81(3) which they have obtained or generated in the course of or for the purposes of carrying out a main activity under paragraph 66(1)(a), or administering Part 5 or assisting another person to administer Part 5 of the Act. 652. The penalty for this offence would be 12 months imprisonment. 653. The penalty that would be imposed by this section has been set to deter non-compliance with the section and provide proportionate and appropriate punishment for a person's wrongdoing. Civil penalty 654. Subsection 81(2) would provide that a person contravenes the subsection if they are, or have been, an entrusted person and they use or disclose protected information at subsection 81(3) which they have obtained or generated in the course of or for the purposes of carrying out a main activity under paragraph 66(1)(a), or administering Part 5 or assisting another person to administer Part 5 of the Act. 655. The penalty for this contravention would be 60 penalty units. 656. The penalty that would be imposed by this section has been set to deter non-compliance with the section and provide proportionate and appropriate punishment for a person's wrongdoing. Protected information 657. For the purposes of the offence and civil penalty provisions at subsections 81(1) and (2), subsection 81(3) would prescribe the following kinds of information as protected information: a. information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence; b. information the disclosure of which could reasonably be expected to prejudice constitutional trade or commerce. 74

Exception-required or authorised by law 658. Subsection 81(4) would clarify that the offence and civil penalty provisions at subsections 81(1) and (2) do not apply if the use or disclosure of the information is required or authorised by the Act or another law of the Commonwealth, or a law of a State or Territory prescribed by the rules made for the purposes of paragraph 81(4)(b). 659. A note to subsection 81(4) would direct the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act, which provide that a defendant bears an evidential burden in relation to the matters in the subsection. Exception-good faith 660. Subsection 81(5) would clarify that the offence and civil penalty provisions at subsections 81(1) and (2) do not apply if the person uses or discloses the information in good faith in the purported carrying out of a main activity under paragraph 66(1)(a) and paid for with amounts debited from the NRS Special Account, or in the purported administering, or in assisting another person in the purported administering, of this Part. 661. A note to subsection 81(5) would direct the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act, which provide that a defendant bears an evidential burden in relation to the matters in the subsection. Section 82 Enforcement of civil penalty provisions Enforceable civil penalty provisions 662. Subsection 82(1) would provide that each civil penalty provision under the Act is enforceable under Part 4 of the Regulatory Powers Act. 663. Civil penalty provision would be defined in section 4 of the Act to have the same meaning as in the Regulatory Powers Act. 664. A note to the subsection would explain that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision. 665. Relevantly, subsection 82(6) of Part 4 of the Regulatory Powers Act provides that in determining the pecuniary penalty in relation to a civil penalty, the court must take into account all relevant matters, including: a. the nature and extent of the contravention; and b. the nature and extent of any loss or damage suffered because of the contravention; and c. the circumstances in which the contravention took place; and d. whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. Authorised applicant 666. Subsection 82(2) would provide that for the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions under the Act. 667. Subsection 82(3) would provide that the Secretary may delegate to an SES employee, or acting SES employee, in the department the Secretary's powers under Part 4 of the 75

Regulatory Powers Act in relation to the civil penalty provisions under the Act. Any delegation made under this subsection must be in writing. 668. Subsection 82(4) would provide that a delegate exercising delegated powers must comply with any directions of the Secretary. 669. It is the intention that the delegates would be senior officials of the department, who have knowledge and expertise in or responsibility and direct oversight of the NRS. This would improve the efficiency of the administration and management of the system. Relevant court 670. Subsection 82(5) would provide for the purposes of Part 4 of the Regulatory Powers Act, each of the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2) is a relevant court in relation to the civil penalty provisions under the Act. Extension to external Territories 671. Subsection 82(6) would provide that Part 4 of the Regulatory Powers Act, as it applies in relation to the civil penalty provisions under the Act extends to every external Territory. 76

Part 6--Other matters 672. This Part would set out set out other matters, including reconsideration and review of decisions, recoverable payments and administrative provisions. Division 1--Simplified outline of this Part Section 83 Simplified outline of this Part 673. The simplified outline is included to assist the reader to understand the substantive provisions of the Part; however, it is not intended to be comprehensive. The reader should rely on the substantive provisions of the Part to which the outline relates. Division 2--Reconsideration and review of decisions Section 84 Internal reconsideration of decisions 674. The purpose of this section would be to provide for internal reconsideration of decisions under subsection 72(3) to refuse to grant a person an approval. It is appropriate that a decision that would, or would be likely to, affect the interests of a person be reviewable. 675. Subsection 84(1) would provide that a person (the aggrieved person) whose interests are affected by a decision of the Secretary under subsection 72(3) to refuse to grant the person an approval may request the Secretary to reconsider the decision. 676. Subsection 84(2) would clarify that subsection 84(1) does not apply to a decision that was made personally by the Secretary. Form and timing of request 677. Subsection 84(3) would provide that the aggrieved person seeking reconsideration of a decision must make the request in writing before the end of the period of 28 days beginning on the day on which that person was notified of the decision, unless the Secretary has allowed a longer period. Reasons for request 678. Subsection 84(4) would provide that the aggrieved person seeking reconsideration of a decision must set out the reasons for the request. Review of decision 679. Subsection 84(5) would set out the process that the Secretary must follow upon receiving a request made in accordance with subsections 84(3) and (4). Under this subsection the Secretary must reconsider the decision personally or cause the decision to be reconsidered by a specified person who is the internal reviewer. The internal reviewer must not have been involved in making the decision that is under review and must be an SES or acting SES employee in the department of requisite seniority to the person who made the decision. 680. Subsection 84(6) would provide that the Secretary or internal reviewer must affirm, vary or set aside the decision. 681. If the decision is set aside, the Secretary or internal reviewer may make a new decision. 77

682. Subsection 84(7) would require the Secretary or internal reviewer to affirm, vary or set aside the decision, or make such other decision as the Secretary or internal reviewer thinks appropriate before the end of: a. the period of 45 days beginning on the day the Secretary receives the request; or b. if the aggrieved person seeking reconsideration of the decision and the Secretary or internal reviewer agree on a longer period. Notice of decision on reconsideration 683. Subsection 84(8) would require the Secretary or internal reviewer to give the aggrieved person written notice of the decision on reconsideration and the reasons for that decision. 684. A note would draw the reader's attention to section 27A of the Administrative Appeals Tribunal Act 1975, which requires the person to be notified of the person's review rights. When decision on reconsideration takes effect 685. Subsection 84(9) would provide that the decision of the Secretary or internal reviewer on reconsideration takes effect on the day specified in the notice or, if a day is not specified, on the day on which that decision is made. Secretary or internal reviewer may be taken to have affirmed decision 686. Subsection 84(10) would provide that if the Secretary or internal reviewer has not notified the aggrieved person of the decision on reconsideration by the end of the period applicable under subsection 84(7) then the Secretary or internal reviewer is taken to have affirmed the decision under reconsideration. Section 85 Administrative Appeals Tribunal review of decisions 687. Subsection 85(1) would provide that applications may be made to the Administrative Appeals Tribunal for review of the following decisions: a. a decision under subsection 40(1) to revoke a declaration that is made by the Minister, except if the body has requested the revocation under paragraph 40(1)(a)); b. a decision under subsection 72(3) to refuse to grant a person an approval that is made by the Secretary personally; c. a decision under subsection 84(6) that is made, or a decision under subsection 84(10) that is taken to have been made by the Secretary or internal reviewer. 688. Subsection 85(2) would provide that an application for review to the Tribunal in relation to a decision covered by 85(1)(a) can only be made by the body covered by the revocation. 689. Subsection 85(3) would clarify that subsection 85(2) has effect despite subsection 27(1) of the Administrative Appeals Tribunal Act 1975. 78

Division 3--Recoverable payments Section 86 Recoverable payments 690. The purpose of this section would be to ensure that the Consolidated Revenue Fund is appropriated for the purposes of making payments to pay an amount to a body purportedly as a payment under certain subsections of the Act. This may include inadvertent overpayments made by the Commonwealth to a body that may occur because of, for example, an administrative error or incorrect invoicing. This section would provide for recovery by the Commonwealth of any such overpayments to a body. 691. Subsection 86(1) would provide that if, apart from this subsection, the Commonwealth does not have power under the Act to pay an amount (the relevant amount) to a body purportedly as a payment under subsection 15(1), 23(1), 26(1), 27(1), 44(1), 48(1), 54(1) or 58(1), then the Commonwealth may pay the relevant amount to the body. Debt 692. Subsection 86(2) would provide that if a payment is made under subsection 86(1) to the body, the relevant amount is a debt due to the Commonwealth by the body and may be recovered by the Minister, on behalf of the Commonwealth, by action in a court of competent jurisdiction. Set-off 693. Subsections 86(3) would provide that the Commonwealth may set off the whole or a part of the relevant amount against a later payment the Commonwealth must make under the Act to the body. 694. Subsection 86(4) would provide that debt under subsection 86(2) is reduced by the amount of any set-off. 695. The purpose of this set-off provision would be to provide the Commonwealth with the ability to correct overpayments or payments made in error in the most efficient way. Appropriation 696. Subsection 86(5) would provide that the Consolidated Revenue Fund is appropriated for the purposes of making payments under subsection 86(1). Section 87 Report about recoverable payments 697. Subsection 87(1) would set out the information in relation to recoverable repayments that must be included in the department's annual report for a financial year. 698. Subsection 87(2) would provide that if no APS employee in the department is aware of any payments listed in paragraph 87(1)(a) or (c) then information is not required to be included in the department's annual report. Division 4--Administrative provisions Section 88 Delegation by Minister 699. Subsection 88(1) would provide that the Minister would have a discretionary power to delegate any or all of the Minister's powers or functions under the Act (except section 41 or 90) or the rules to the Secretary, or an SES employee, or acting SES employee, in the department. Any delegation made under this section must be in writing. 79

700. Subsection 88(2) would provide that a delegate, when exercising a delegated power or function, must comply with any written directions of the Minister. 701. The purpose of this section is to enable delegation of powers or functions to the Secretary, or SES or acting SES employees within the department, including in circumstances where it is not considered practicable for the Minister to personally exercise their powers. 702. It is the intention that the delegates would be senior officials of the department, who have knowledge and expertise in or responsibility and direct oversight of the agricultural levy system. This would improve the efficiency of the administration and management of the system. Section 89 Delegation by Secretary 703. Subsection 89(1) would provide that the Secretary would have a discretionary power to delegate any or all of the Secretary's powers or functions under the Act or the rules to an SES employee, or acting SES employee, in the department. Any delegation made under this section must be in writing. 704. Subsection 89(2) would provide that a delegate, when exercising a delegated power or function, must comply with any written directions of the Secretary. 705. The purpose of this section is to enable delegation of powers or functions to SES or acting SES employees within the department, including in circumstances where it is not considered practicable for the Secretary to personally exercise their powers. 706. It is the intention that the delegates would be senior officials of the department, who have knowledge and expertise in or responsibility and direct oversight of the agricultural levy system. This would improve the efficiency of the administration and management of the system. Section 90 Rules 707. Subsection 90(1) would provide that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. 708. There would be a number of provisions in the Act that would enable matters to be prescribed by the Rules and which would trigger the rule making powers which are set out in section 90. 709. This would enable the Minister to specify operational details that are necessary to apply the Act to different industry sectors. The flexibility provided by including these details in rules is necessary to cater for differences in industry arrangements and allow the Commonwealth to accommodate changes in industry arrangements quickly and effectively. 710. The rules would not be exempt from disallowance under the Legislation Act and would therefore be subject to Parliamentary scrutiny. The rules would also not be exempt from sunsetting. Instruments 711. Subsection 90(2) would provide that the rules may make provision in relation to a matter by conferring on the Minister or the Secretary the power to make a legislative instrument, a notifiable instrument or other written instrument. 80

712. The purpose of this subsection is to provide flexibility to deal with certain circumstances where they arise. Incorporation of other instruments 713. Subsection 90(3) would provide that, despite subsection 14(2) of the Legislation Act, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time. 714. Subsection 14(2) of the Legislation Act provides that, unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. 715. Subsection 90(3) would therefore provide a contrary intention to subsection 14(2) of the Legislation Act. That is, the incorporation of certain documents by reference would not be limited to the instrument or other writing as at the date of incorporation. 716. The rules would prescribe the relevant instrument or other writing that would form incorporated material for the purposes of this subsection. It is intended that, if any relevant deeds relating to emergency biosecurity responses are made after the commencement of the Act, they would be prescribed as emergency animal biosecurity response deeds or emergency plant biosecurity response deeds. It is appropriate to incorporate these documents as in force from time to time, as they represent contractual arrangements between the Commonwealth, States and Territories, AHA/PHA and industry body signatories, that may be updated by the parties from time to time. 717. See section 4 for the definition of emergency animal biosecurity response deed and emergency plant biosecurity response deed. No limit on subsection (1) 718. Subsection 90(4) would provide that subsections 90(2) and (3) do not limit subsection 90(1), which provides for the Minister to make rules. Limitation 719. Subsection 90(5) would clarify that the rules may not create an offence or civil penalty, provide powers of arrest or detention, or entry, search or seizure, impose a tax, or directly amend the text of the Act. 720. There are a number of other provisions in the proposed Act that would require or permit the Minister to make rules. These provisions set the parameters of the Minister's specific rule-making power. Matters that may be included in the rules would be industry-specific operational details 81

Attachment A 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 Disbursement Bill 2023 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The purpose of the Primary Industries Levies and Charges Disbursement Bill 2023 (the Bill) is to provide for payments by the Commonwealth to recipient bodies, Animal Health Australia (AHA) and Plant Health Australia (PHA) and for crediting by the Commonwealth to the National Residue Survey (NRS) Special Account of amounts connected with various levies and charges imposed on behalf of Australia's primary industries. Payments to recipient bodies The Bill provides for payments by the Commonwealth to recipient bodies of amounts of marketing, research and development (R&D) and general levy and charge components. In addition to the making of levy and charge payments, the Bill provides requirements for the spending of levy and charge payments by recipient bodies. Recipient bodies must spend levy and charge payments on marketing activities, research and development activities and other matters for the benefit of primary industries. The Bill also provides for payments by the Commonwealth to recipient bodies of matching payments based on amounts of research and development and other expenditure by the bodies limited by gross value of production amounts in relation to the primary industry. The Bill similarly provides requirements for the spending of matching payments by recipient bodies. Recipient bodies must spend matching payments in research and development activities and other matters for the benefit of primary industries. Payments to Animal Health Australia and Plant Health Australia The Bill provides for payments by the Commonwealth to AHA and PHA of amounts of biosecurity activity and biosecurity response levy and charge components. In addition to the making of levy and charge payments, the Bill provides requirements for the spending of levy and charge payments by AHA and PHA. AHA and PHA must invest levy and charge payments in activities relating to the promotion or maintenance of the health of plants, animals, fungi or algae. Payments to the NRS Special Account and information management The Bill continues in existence the NRS Account, renamed NRS Special Account. The Bill provides for credits by the Commonwealth to the Account of amounts of NRS levy and charge components. 1

In addition to the making of levy and charge credits, the Bill provides the purposes of the Account. That is, making payments for purposes relating to residue monitoring and contamination prevention. The Bill also authorises the use or disclosure of 'relevant NRS information' (defined under section 4) and provides offences for unapproved or unauthorised use or disclosure of protected information. The classes of information that are covered as protected information are limited to categories of information where harm would result from the unrestricted use or disclosure of the information, namely, information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence and information the disclosure of which could reasonably be expected to prejudice constitutional trade or commerce. Human rights implications The Bill engages, or has the potential to engage, the following rights: • Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - Right to an adequate standard of living, including food, water and housing; • Article 12 of the ICESCR - Right to health; • Article 14 - Criminal process rights; • Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) - Right to the presumption of innocence; • Article 14(7) of the ICCPR - Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted; • Article 17 of the ICCPR - Right to protection from arbitrary interference with privacy; • Article 19(2) of the ICCPR - Right to freedom of expression. Right to an adequate standard of living The Bill engages the right to an adequate standard of living under Article 11(1) of the ICESCR. This includes the right to adequate food, water, and housing, and to the continuous improvement of living conditions. States Parties have an obligation to ensure the availability and accessibility of the resources necessary for the progressive realisation of this right. Article 4 of ICESCR provides that these rights may be subject to permissible limitations only where those limitations are provided by law and are for the purpose of promoting the general welfare in a democratic society. The agricultural levy system supports investment in strategic activities for the benefit of agricultural, fisheries and forestry industries including R&D, biosecurity activities and residue testing. These investments support the availability and sustainability of adequate supply of nutritious food. The Bill therefore promotes the right to adequate food as provided by Article 11. The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) has stated (General Comment No 12 (May 1999)), that the right to adequate food should 'not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins and other specific nutrients', but implies it should be free from adverse substances and accessible, both economically and physically. 2

Adequacy of food and sustainability are intrinsically linked, implying food being accessible for both present and future generations. The precise meaning of "adequacy" is largely determined by prevailing social, economic, cultural, climatic, ecological, and other conditions, while "sustainability" incorporates the notion of long-term availability and accessibility. As noted in General Comment No 12, at international law, the right to food is also directed to ensuring that food is free from adverse substances and that food management regimes set requirements for food safety and for a range of protective measures by both public and private means to prevent contamination of foodstuffs through adulteration and/or through poor environmental hygiene or inappropriate handling at different stages throughout the food chain; and to identify, avoid or destroy naturally occurring toxins. The right to adequate food is therefore also promoted by the Bill to the extent that levies and charges are invested in monitoring, testing and reporting of levels of contaminants in agricultural products or the environment to ensure the production of clean food. Summary The Bill is compatible with the right to an adequate standard of living, including food, water and housing under Article 11(1) of the ICESCR because it positively engages and promotes that right. Right to health Article 12 of the ICESCR promotes the right of all individuals to enjoy the highest attainable standards of physical and mental health. This includes the application of measures for the prevention, treatment and control of epidemic, endemic, occupational and other diseases (Article 12(2) of the ICESCR). In General Comment No 14 (August 2000), the UNCESCR stated that health is a "fundamental human right indispensable for the exercise of other human rights", and that the right to health is not to be understood as the right to be healthy, but rather as a right to a system of health protection that provides equal opportunity for people to enjoy the highest attainable level of health. The Bill engages and promotes the Article 12 right to health to the extent that levies and charges are invested in R&D, biosecurity activities and residue testing. These investments support access to essential foods which are nutritionally adequate and safe for the Australian community. The prevention and control of animal and plant diseases, for example, contributes to adequate food supply. Monitoring and testing of contaminant levels in agricultural products ensures that food produced in Australia is safe and clean (for example, that it does not contain unsafe levels of chemical residues or heavy metals). Summary The Bill is compatible with the right to health under Article 12 of the ICESCR because it positively engages and promotes that right. Criminal process rights The rights to due judicial process and procedural fairness are established under Article 14 of the ICCPR. Australia interprets the Article 14 right to a fair trial or fair hearing to apply in both criminal and civil proceedings, before both courts and tribunals. The protections afforded by Article 14 include fair trial rights, minimum guarantees in the determination of a criminal charge, and other criminal process rights. 3

Fault-based offences Subclause 72(9) of the Bill makes it an offence for a person holding an approval from the Secretary to disclose relevant NRS information that is protected information provided to them by an entrusted person otherwise than in accordance with the terms specified in the approval. Subject to authorisation under the Bill, or another lawful authority and defence of good faith, subclause 81(1) makes it an offence for a person who is, or has been, an entrusted person to use or disclose relevant NRS information that is protected information acquired or generated during the course of carrying out activities under paragraph 66(1)(a) or in the administration of Part 5 of the Bill. The offences cover narrowly defined categories of information and apply to a distinct category of entrusted person and persons operating under an approval granted by the Secretary. By virtue of their roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Bill relating to the use and disclosure of protected information. The offences are reasonable and proportionate having regard to the inherent public interest in ensuring that this information is protected. The unauthorised disclosure of this information, both directly and secondarily, would materially harm the relationship of trust between individuals and the Australian Government that is integral to the regulatory functions of government in the context of the NRS. The NRS contributes to minimising residues of pesticides, veterinary medicines and other contaminants in Australian animal and plant products. The NRS supports Australia's primary producers, agricultural industries, and Australian exporters by confirming Australia's status as a producer meeting international standards and facilitating access to domestic and export markets. Relevant NRS information is released only to authorised entities, including government authorities (i.e., Australian, state or territory government authorities responsible for the monitoring or regulation of agricultural and veterinary chemical residues and contaminants), or to individuals approved by the Secretary as being appropriate persons to be granted access to the information under clause 72 of the Bill. The NRS also supports the investigation and evaluation of potential residue/contaminant issues that carry implications to agricultural export sectors. Relevant NRS information is comprised of extensive data of residue information for a range of commodities. This data is commercially and trade sensitive. A failure to safeguard relevant NRS information, including protected information, could critically compromise the collection of samples necessary to determine the level of chemical residues and contaminants in food agricultural commodities and ensure industry compliance with residue limits. If this information cannot be sensitively managed by Government, this is likely to compromise trade. Participation in residue monitoring programs is critical for statistical monitoring, traceback, regulation of residues and contaminants and defence of Australia's agvet chemical residue system to trading partners. The penalties for the fault-based offences in subclause 72(9) and subclause 81(1) of the Bill carry the possibility of imprisonment consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney-General's Department (Guide to Framing Commonwealth Offences). A court will have discretion to impose a lesser penalty for offending which falls on the lower end of objective seriousness. A term of imprisonment is intended to be imposed by a court for offending which falls on the higher end of objective seriousness. In accordance with section 17A of the Crimes Act 1914, 4

a court will still need to consider all other available sentences and be satisfied that no other sentence is appropriate in all the circumstances of the case. Where a court passes a sentence of imprisonment for offending against subclause 72(9) or subclause 81(1) the court would be required to state the reasons for its decision and that no other sentence is appropriate. Summary The offence provisions in subclause 72(9) and 81(1) of the Bill are a proportionate and measured response to protecting the integrity and security of relevant NRS information that is protected information, the unauthorised disclosure of which could, amongst other adverse consequences, be used as a trade barrier to the export of agricultural products to major overseas markets. Accordingly, the fault-based offences in the Bill would be compatible with the criminal process rights contained in Article 14 of the ICCPR. Civil penalties In Guidance Note 2: Offence provisions, civil penalties and human rights (December 2014), the Parliamentary Joint Committee on Human Rights (PJCHR), 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. As such, prescribing conduct that is subject to a civil penalty, and applying the civil penalty provisions of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), could engage criminal process rights if the imposition of civil penalties is classified as 'criminal' under international human rights law. The UN Human Rights Committee has stated that criminal charges primarily encompass acts that are declared to be punishable under domestic criminal law, but may also extend to acts that are criminal in nature with sanctions that, regardless of their characterisation in domestic law, must be regarded as penal. Relevant factors in considering whether charges are criminal include whether proceedings are brought by a public authority, whether there is a punitive element to the process and whether there are potentially serious consequences such as imprisonment (see UN Human Rights Committee General Comment 32). As such, when a provision imposes a civil penalty, an assessment is required as to whether it amounts to a 'criminal' penalty for the purposes of the ICCPR. Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties. The Bill imposes a civil penalty provision under subclause 81(2) which is expressly classified as a civil penalty for the purpose of Australian domestic law. The civil penalty is imposed for a provision which is regulatory in nature and carries a maximum civil penalty of 60 penalty units. This penalty does not impose criminal liability and a finding by a court that a person has contravened the provision does not lead to the creation of a criminal record. This civil penalty would only apply to a person who is, or has been, an entrusted person who has acquired or generated relevant NRS information that is protected information in the course of carrying out activities under paragraph 66(1)(a) or in the administration of Part 5 of the Bill. By virtue of their roles and responsibilities, these persons can reasonably be expected to be aware of their obligations under the Bill relating to the use and disclosure of protected information. The imposition of a civil penalty as a possible sanction reflects the significant harm that may occur as a result of the unauthorised use or disclosure of protected 5

information. For the regulatory regime under the Bill to be effective, there must be confidence from industry and the general public that protected information obtained and generated under the Bill will be handled appropriately. The application of the standard provisions in Part 4 of the Regulatory Powers Act by subsection 82 of the Bill means section 85 of the Regulatory Powers Act will apply to the proposed civil penalty provision in the Bill. Section 85 of the Regulatory Powers Act provides that a relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. There are no criminal consequences associated with civil penalty orders for multiple contraventions; for example, they do not carry the possibility of imprisonment. Summary The civil penalty imposed by subclause 81(2) of the Bill is properly characterised as civil rather than criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are not engaged by the proposed civil penalty provision in the Bill. Overlap of criminal and civil penalties Article 14(7) of the ICCPR provides that no one shall be liable or be tried or punished again for an offence for which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 14(7) may be engaged by provisions that allow for the imposition of both a criminal penalty and a civil penalty provision in relation to the same contravening conduct. Clause 81 of the Bill contains an offence and civil penalty provision which apply to the same contravening conduct which engages this Article 14 right. By virtue of clause 82 of the Bill, sections 90 and 91 of the Regulatory Powers Act will apply to civil penalty proceedings instigated pursuant to the Bill which concern the relationship between criminal and civil penalty proceedings. Section 90 of the Regulatory Powers Act engages the process rights in Article 14 of the ICCPR but does not limit those rights. This section clarifies that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against the person in relation to the contravention. This section recognises the importance of criminal proceedings and criminal penalties in sanctioning contraventions of a triggering Act (i.e., an Act that seeks to apply the standard provisions of the Regulatory Powers Act) and ensures that criminal remedies are not precluded by earlier civil action. As section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. This provides a second 6

safeguard against potential double jeopardy and thereby ensures that Article 14 of the ICCPR is not infringed. Section 91 of the Regulatory Powers Act provides that evidence of information given, or evidence of the production of documents, by an individual is not admissible in criminal proceedings against the individual if: • the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made), and • the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention. Summary The criminal process rights provided for by Article 14(7) of the ICCPR are engaged but not limited by clause 81 of the Bill. Presumption of innocence Article 14(2) of the ICCPR protects the right of every individual charged with a criminal offence to be presumed innocent until proved guilty according to law. The right to the presumption of innocence is also a fundamental principle of the common law. The UN Human Rights Committee has stated that the presumption of innocence "imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt". Laws that shift the burden of proof to a defendant, commonly referred to as 'reverse burden provisions', can be considered to constitute a limitation of the presumption of innocence. This is because a defendant's failure to discharge a burden of proof or prove an absence of fault may permit their conviction despite reasonable doubt as to their guilt. This includes where an evidential or legal burden of proof is placed on a defendant. Reverse burden offences will not necessarily be inconsistent with the presumption of innocence, provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for the reverse burden. PJCHR Guidance Note 2 indicates that reverse burden offences will likely be compatible with the presumption of innocence where they are shown by legislation proponents to be reasonable, necessary and proportionate in pursuit of a legitimate objective. Clause 81 of the Bill engages this Article 14 right because the offence-specific defences to those offence and civil penalty provisions reverses the usual burden of proof by requiring the defendant to discharge the burden of proof for one or more matters specified as an element of the offence. Subclause 81(1) prohibits an entrusted person from using or disclosing relevant NRS information that is protected information. An exception to this is where the use or disclosure of the protected information is required or authorised by the Act or a law of the Commonwealth or a law of a state or territory as prescribed by the rules (subclause 81(4)). A further exception is where a person has disclosed the information in good faith (subclause 81(5)). A person who wants to rely on the exceptions contained in subclause 81(4) or subsection 81(5) bears the evidential burden of proving the exception. Under subsection 13.3(3) of the Criminal Code Act 1995, a defendant who wants to rely on any exception, 7

provided by the law creating an offence, bears an evidential burden in relation to that matter; the exception need not accompany the description of the offence. The Guide to Framing Commonwealth Offences notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Guide provides that a reverse burden provision is more readily justified if: • the matter in question is not central to the question of culpability for the offence; • the penalties are at the lower end of the scale; and • the conduct proscribed by the offence poses a grave danger to public health or safety. Summary The criminal process rights provided for by Article 14(2) of the ICCPR are engaged but not limited by clause 81 of the Bill. In the event of a prosecution or civil proceedings, it would be significantly more difficult and costly to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Notably, the offences only impose an evidential burden on the defendant. That is, the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden. Right to protection from arbitrary interference with privacy Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. The right to privacy includes respect for informational privacy and is engaged by any provisions which permit the disclosure of personal information. According to the PJCHR Guide to Human Rights, the right to privacy includes: the right to respect for confidential and private information, particularly the storing, use and sharing of such information; and the right to control dissemination of information about one's private life. 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 ICCPR and be reasonable in the particular circumstances. The UN Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. It has interpreted the term 'unlawful' to mean that no interference can take place except in cases envisaged by a law which complies with the provisions, aims and objectives of the ICCPR. The UN Human Rights Committee has also indicated that an interference will not be considered to be 'arbitrary' if it is provided for by law and is in accordance with the provisions, aims and objectives of the ICCPR and is reasonable in the particular circumstances. Part 5 of the Bill engages this Article 17 right because it sets out an information management framework regulating the use and disclosure of relevant NRS information, which may include personal information. The permitted forms of use and disclosure are appropriate as they are for proper legal purposes and in furtherance of a clear policy objective. The authorised use and disclosure of this information is necessary to ensure that detections of chemical residues are reported in an efficient and timely manner to facilitate investigations and to prevent food that does not meet 8

the standard from entering the food chain. As described above, unauthorised use or disclosure of relevant NRS information that is protected information is an offence or subject to civil penalty. The penalties for non-compliance are justified by the potential impact on human health and the risk that delayed response to high residue levels in particular trade species animals or products could severely disrupt agricultural produce markets and trade with significant impacts for agricultural industries and regional economies. For example, clause 72 of the authorisation framework permits an entrusted person to share relevant NRS information with persons holding an approval granted by the Secretary for specified purposes. Subclause 72(9) imposes an offence on secondary unauthorised use or disclosure. This offence supports the right to privacy to the extent that relevant NRS information is further insulated from broader, unapproved dissemination. To the extent that the right to privacy is limited by this approval scheme, any such limitation is reasonable and proportionate having regard to the legitimate policy objective of supporting the NRS. Further, clause 80 of the Bill allows rules to authorise the use or disclosure of relevant NRS information. This rule making power is necessary as circumstances may arise in the future requiring expedient additional authorisations to effectively manage relevant NRS information. Rules for the purposes of clause 80 will be able to be adapted to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for the use or disclosure. The rules would also be able to impose appropriate limitations on the use or disclosure of the information by requiring certain conditions to be complied with. For example, this may include requiring the person who is using or disclosing the information to ensure appropriate protections are in place for any personal information. As the rules are legislative instruments, the Legislation Act 2001 will apply and govern such matters as registration, Parliamentary oversight (disallowance) and sunsetting. Entrusted persons are also subject to information handling obligations which ensure personal information is collected, used, and stored securely in accordance with the Privacy Act 1988, which gives effect to the right to privacy in Australia. Summary Any limitations to the right to privacy resulting from the operation of the information management framework in Part 5 of the Bill are reasonable, necessary, and proportionate to achieving legitimate policy objectives. The measures are therefore consistent with the right to privacy in Article 17 of the ICCPR. Right to freedom of expression Article 19(2) of the ICCPR protects the right to freedom of expression. This includes the freedom to seek, receive and impart information and ideas of all kinds. The right may be subject to permissible limitations where these are authorised by law and not arbitrary; for example, where they are necessary for the respect of the rights or reputation of others. Any such restrictions must be prescribed by law and be reasonable, necessary and proportionate to achieving a legitimate objective. Part 5 of the Bill engages this Article 19 right by limiting the circumstances in which relevant NRS information may be used and disclosed, as described above. The classes of information that are covered as protected information do not unduly limit the right to freedom of expression as they are limited to specified categories of information, as outlined in the Overview of the Bill above. The right may be limited to the extent that the information management provisions impose offences which attract a pecuniary penalty or imprisonment, 9

or impose civil liability on a person, in circumstances where the use or disclosure of protected information is unauthorised. The right is also engaged and potentially limited by the authorisation framework which imposes limitations and qualifications on the use and disclosure of relevant NRS information. Given that the unauthorised use or disclosure of relevant NRS information that is protected information may have serious consequences, including harm to a person's business or prejudice to trade or commerce and, by extension, the national interest, it is important to ensure that protected information is not used or disclosed unlawfully or without appropriate authorisation, either directly or secondarily. The fault-based offences and civil penalty provision would only apply to the limited class of entrusted persons or other persons who hold an approval. By virtue of their respective roles and responsibilities, these persons can be reasonably expected to be aware of their obligations under the Bill relating to the use and disclosure of protected information. Summary The Bill engages the right to freedom of expression under Article 19 of the ICCPR. Any limitation to the right resulting from the offences and civil penalty provisions and the authorisations delimiting the scope of use and disclosure is reasonable and proportionate to achieve a legitimate policy end. Given that the unauthorised use or disclosure of NRS information that is protected information may have potentially serious consequences, including harm to a person's business or prejudice to trade or commerce, it is important to ensure that protected information is not used or disclosed without appropriate authorisation. This limitation on the right to freedom of expression in Article 19 of the ICCPR is necessary, appropriate and proportionate to achieving a legitimate policy objective and balances respect for individual privacy. 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. Therefore, the 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. (Circulated by authority of the Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Murray Watt) 10

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