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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
QUARANTINE CHARGES (IMPOSITION - GENERAL) BILL 2014
QUARANTINE CHARGES (IMPOSITION - CUSTOMS) BILL 2014
QUARANTINE CHARGES (IMPOSITION - EXCISE) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, the Hon. Barnaby Joyce MP)
QUARANTINE CHARGES (IMPOSITION - GENERAL) BILL 2014
QUARANTINE CHARGES (IMPOSITION - CUSTOMS) BILL 2014
QUARANTINE CHARGES (IMPOSITION - EXCISE) BILL 2014
General Outline
The three Bills (Quarantine Charges Bills) re-align Australia's biosecurity and
quarantine imports system with an efficient and effective cost-recovery model which
is consistent with the Australian Government Cost Recovery Guidelines. Authority to
collect charges imposed under the Quarantine Charges Bills is provided by the
Quarantine Charges (Collection) Bill 2014.
Biosecurity is currently managed under the Quarantine Act 1908 and related
delegated legislation. Biosecurity refers to the management of the risk of pests and
diseases entering Australian territory and causing harm to animal, plant and human
health, the environment and the economy. Shifting global demands, growing
passenger and trade volumes, increasing imports from a growing number of countries
and population expansion all contribute to the complexity of the modern biosecurity
environment.
Historically, the Department of Agriculture's approach to biosecurity management--
under the Quarantine Act--has relied on mandatory border intervention targets for
specific imports. This approach did not take into account the varying levels of risk
posed by different passengers, goods, import businesses or incursions, or where
intervention would be most effective (offshore, onshore or at the border).
In recent years, the department has shifted to a risk-based approach to biosecurity
management, informed by scientific analysis, intelligence and surveillance that
enables higher risk goods, passengers and mail to be targeted for intervention. This
has allowed the department to develop world's best biosecurity practice and better
manage the increasing volumes of trade and passengers across the Australian border.
The risk-based approach, allows the department to more effectively target its
regulatory efforts without compromising biosecurity risk outcomes. It reduces the cost
of delivering frontline services and saves time and money for importing businesses
with flow-on benefits to the broader economy.
The risk-based approach reduces the administrative burden on compliant clients,
enabling faster clearance at the border through better targeting and focus on higher
risk goods. The risk-based approach allows the free movement of goods, where risk is
low, and cuts the costs for clients who actively and conscientiously take account of
biosecurity risks. While the department has adopted this operating model, cost-
recovery arrangements under existing legislation have been unable to provide
sufficient support.
The department currently recovers the costs of key biosecurity services (for example,
scientific analysis, intelligence and surveillance, which are key elements of the risk-
based approach) through three fee items (2, 3 and 5) of the Quarantine Service Fees
Determination 2005 (the Determination), made under section 86E of the Quarantine
Act.
2
This legislative package will create a more appropriate legal structure for the recovery
of costs associated with the indirect biosecurity services undertaken by the
department, for the benefit of importers, and will align the cost-recovery arrangements
with current departmental practices. The legislation will sit alongside the existing fee-
for-service cost-recovery mechanism and support Australia's capacity to manage
biosecurity risks into the future.
The Australian Government Cost Recovery Guidelines state that agencies should set
charges to recover all the costs of products or services that they provide. These
charges should reflect the costs of providing the service and should generally be
imposed on a fee-for-service basis or, where efficient, as a levy.
The legislative package is designed purely as a cost-recovery mechanism. The
legislation ensures that the Minister for Agriculture must be satisfied that the amount
charged will be approximately equal to the cost of delivering the activity.
The primary and delegated legislation have been drafted to take into account and be
consistent with requirements under international trade law.
Quarantine Charges (Imposition-General) Bill 2014
The Quarantine Charges (Imposition-General) Bill 2014 enables cost-recovery of
activities that provide benefits to users of the biosecurity system - particularly the
recovery of costs for indirect biosecurity services, such as scientific analysis,
intelligence and surveillance.
The Bill is enabling and mechanistic in character. It does not itself set the amount of
the charges and will not impose any financial impacts on businesses. The Bill
authorises the imposition of charges in relation to matters connected with the
administration of the Quarantine Act. These matters will be prescribed in the
delegated legislation and will reflect the indirect biosecurity services provided by the
department. The amount of the cost-recovery charges and who is liable to pay them
will also be set in delegated legislation. Setting the charges through delegated
legislation will allow the Minister for Agriculture to make appropriate and timely
adjustments to the charges, avoiding future over or under recoveries.
The Bill also includes a safeguard regarding the amounts of the charges that can be
authorised by the Bill. Before the Governor-General makes a regulation to set the
charges, the Minister for Agriculture must be satisfied that the amount of the charge is
set at a level that is designed to recover no more than the Commonwealth's likely
costs. This will provide clients with confidence that the government will not over
recover the costs of its indirect biosecurity services.
The Bill also validates the fees collected under the Quarantine Service Fees
Determination 2005 insofar as they may be deemed to be invalid.
Quarantine Charges (Imposition-Customs) Bill 2014
The Quarantine Charges (Imposition-Customs) Bill 2014 enables cost-recovery of
activities that provide benefits to users of the biosecurity system - particularly the
recovery of costs for indirect biosecurity services, such as scientific analysis,
3
intelligence and surveillance where a charge is considered a duty of customs as
defined by section 55 of the Constitution.
The Bill is enabling and mechanistic in character. Its provisions mirror the Quarantine
Charges (Imposition-General) Bill 2014 in operative function and effect.
Quarantine Charges (Imposition-Excise) Bill 2014
The Quarantine Charges (Imposition-Excise) Bill 2014 enables cost-recovery of
activities that provide benefits to users of the biosecurity system - particularly the
recovery of costs for indirect biosecurity services, such as scientific analysis,
intelligence and surveillance where a charge is considered a duty of excise as defined
by section 55 of the Constitution.
The Bill is enabling and mechanistic in character. Its provisions mirror the Quarantine
Charges (Imposition-General) Bill 2014 in operative function and effect.
Financial Impact Statement
The Bills have no financial impact on the Commonwealth or industry. The Bills do
not set the amount of the charges and will not impose any financial impacts on
businesses.
The charges set in delegated legislation will be equal to three existing fees under the
Quarantine Services Fees Determination 2005. These fees will in turn be removed
from the Determination; this action in itself will not change the quantum of charge
imposed on clients.
4
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Quarantine Charges (Imposition-General) Bill 2014
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 Quarantine Charges (Imposition-General) Bill 2014 enables cost-recovery of
activities that provide benefits to users of the biosecurity system - particularly the
recovery of costs for surveillance, compliance, risk analysis and intelligence
capabilities, which are key features of the risk-based approach.
The Bill is enabling and mechanistic in character. It does not itself set the amount of
the charges and will not impose any financial impacts on businesses. The amount of
the cost-recovery charges and who is liable to pay them will be set in regulation under
the Bill.
The Bill will align the cost-recovery arrangements with current departmental
practices. The legislation will complement the existing fee-for-service cost-recovery
mechanism and support Australia's capacity to manage biosecurity risks into the
future.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not engage any human rights
issues.
Minister for Agriculture
5
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Quarantine Charges (Imposition-Customs) Bill 2014
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 Quarantine Charges (Imposition-Customs) Bill 2014 enables cost-recovery of
activities that provide benefits to users of the biosecurity system - particularly the
recovery of costs for surveillance, compliance, risk analysis and intelligence
capabilities, which are key features of the risk-based approach.
The Bill is enabling and mechanistic in character. It does not itself set the amount of
the charges (duties of customs) and will not impose any financial impacts on
businesses. The amount of the cost-recovery charges and who is liable to pay them
will be set in regulation under the Bill.
The Bill will align the cost-recovery arrangements with current departmental
practices. The legislation will complement the existing fee-for-service cost-recovery
mechanism and support Australia's capacity to manage biosecurity risks into the
future.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not engage any human rights
issues.
Minister for Agriculture
6
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Quarantine Charges (Imposition-Excise) Bill 2014
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 Quarantine Charges (Imposition-Excise) Bill 2014 enables cost-recovery of
activities that provide benefits to users of the biosecurity system - particularly the
recovery of costs for surveillance, compliance, risk analysis and intelligence
capabilities, which are key features of the risk-based approach.
The Bill is enabling and mechanistic in character. It does not itself set the amount of
the charges (duties of excise) and will not impose any financial impacts on businesses.
The amount of the cost-recovery charges and who is liable to pay them will be set in
regulation under the Bill.
The Bill will align the cost-recovery arrangements with current departmental
practices. The legislation will complement the existing fee-for-service cost-recovery
mechanism and support Australia's capacity to manage biosecurity risks into the
future.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not engage any human rights
issues.
Minister for Agriculture
7
Notes on clauses
Quarantine Charges (Imposition-General) Bill 2014
Part 1--Preliminary
Clause 1 Short title
This clause provides that the Bill, when enacted, may be cited as the Quarantine
Charges (Imposition-General) Act 2014.
Clause 2 Commencement
This clause provides for the commencement of the Act. Each provision of the Act
specified in column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 in the table.
Clause 3 Act binds the Crown
This clause provides that the Act will bind the Crown in each of its capacities. This
means that the Commonwealth and state and territory governments will be bound to
comply with the provisions of the Act.
Clause 4 Extension to external Territories
This clause provides that the Act will extend to the territory of Christmas Island and
the Cocos (Keeling) Islands. It also provides that the regulations to the Act may
extend the Act or any of its provisions to any other external territory that is prescribed
by the regulations.
This clause ensures that charges in relation to prescribed matters connected with the
administration of the Quarantine Act can be imposed anywhere those services are
provided including in the territory of Christmas Island and the Cocos (Keeling)
Islands and any other external territory that is prescribed by the regulations.
Parliament will have the opportunity to scrutinise the extension of the Act to an
external territory when the enabling regulations are tabled in each House of
Parliament.
Clause 5 Extraterritorial application
This clause extends the operation of the Act beyond Australia's territorial jurisdiction,
ensuring that charges in relation to prescribed matters connected with the
administration of the Quarantine Act can be imposed on persons and organisations
located overseas. This clause is necessary to impose charges on persons wishing to
import goods into Australia who are located overseas.
This clause also defines `Australian territory'. A reference to `Australian territory' is a
reference to Australia, Christmas Island, Cocos (Keeling) Islands (and any external
Territory to which that provision extends) and the airspace over these areas. It also
refers to the coastal sea.
Clause 6 Act does not impose tax on property of a State
This clause ensures that charges imposed under the Act are not taken to be imposed
on property of any kind belonging to a State.
8
Should a question arise whether certain charges would amount to taxation imposed on
property belonging to a state, subclause 6(2) clarifies that `property of any kind
belonging to a State' has the same meaning as in section 114 of the Constitution.
Nothing under this clause would prevent a state voluntarily paying charges imposed
under this Act.
Part 2--Charges
Clause 7 Imposition of charges
This clause permits the Commonwealth to impose charges in relation to prescribed
matters connected with the administration of the Quarantine Act. These matters will
be prescribed in the delegated legislation and will reflect the indirect biosecurity
services provided by the department, such as, but not limited to scientific analysis,
intelligence and surveillance.
Charges imposed under the Act are imposed as taxes only for the purposes of cost
recovery. Two or more charges may be prescribed in relation to the same matter or a
single charge may cover two or more matters. This will provide the department with
sufficient flexibility to ensure that any charges best reflect the indirect biosecurity
services provided and allow the cost-recovery for such services to be appropriate in all
circumstances.
Charges imposed under this Act are only valid insofar as the charge is neither a duty
of customs or excise within the meaning of section 55 of the Constitution. This
ensures that persons liable to pay a charge under the Act will not be liable to pay an
additional charge for the provision of the same service or product under either the
Quarantine Charges (Imposition-Customs) Act 2014 or the Quarantine Charges
(Imposition-Excise) Act 2014.
Clause 8 Matters relating to amount of charges
This clause allows for regulations to prescribe charges by specifying an amount as the
charge or by specifying a method for calculating the amount of a charge.
Specifying the amount of a charge or the method for calculating the amount of a
charge in regulations, as opposed to the Act itself, ensures that there is appropriate
flexibility to change the amount of a charge or the method for calculating the amount
of a charge over time. This will allow charges imposed under the Act to be increased
or decreased as operational practices evolve and technology develops. This will also
help to avoid over or under recovery.
Subclause 8(2) provides that before the Governor-General makes a regulation under
subclause 7(1) prescribing a charge in relation to a matter, the Minister must be
satisfied that the amounts of charges are set at a level that is designed to recover no
more than the likely cost to the Commonwealth in connection with the matter.
This ministerial oversight provides assurance to those liable to pay a charge or
charges under the Act, that the amount charged reflects the likely costs to the
9
Commonwealth in connection with the matter. Any charges set out in the regulations
will be consistent with the Australian Government Cost Recovery Guidelines.
Clause 9 Who is liable to pay charges
This clause allows the regulations to prescribe who is liable to pay a charge and that
one or more persons may be liable to pay a particular charge or charges prescribed
under the Act.
This will provide the department with sufficient flexibility to ensure that any charges
best identify the recipient of the indirect biosecurity services provided and allow the
cost-recovery for such services to be appropriate in all circumstances.
Specifying who is liable to pay a charge in regulations, as opposed to the Act itself,
ensures that there is appropriate flexibility to change the nature of the charge over
time. This will allow charges imposed under the Act to be targeted at the appropriate
recipient of the indirect biosecurity service as operational practices evolve. This will
also ensure that the charges are consistent with the Australian Government Cost
Recovery Guidelines.
Clause 10 Exemptions from charges
This clause allows for the regulations to provide for certain persons or activities to be
exempt from a charge or charges under the Act.
Specifying who is exempt from a charge in regulations, as opposed to the Act itself,
ensures that there is appropriate flexibility to change the nature of the charge over
time. This will provide the department with the ability to act in exceptional
circumstances or where government policy requires that a class of persons be exempt
from charges - for example, the diplomatic corps.
Part 3--Validation
Clause 11 Validation of fees charged under the Quarantine Act 1908
This clause provides that where a charge has been imposed under the Quarantine Act
and it was done so in a manner that may be found to be invalid, the charge is validly
imposed under this Act. This ensures that the government's intention to recover the
costs of providing services is done so validly under law.
This clause also provides that the amount of the charge validly imposed under this Act
will be equal to the amount purported to be imposed by the Quarantine Act in relation
to the same matter. This ensures that no charge validly imposed under this Act is of
greater or lower value than originally charged.
This clause further provides that the amount of the validly imposed charge may be
reduced by an amount already paid or remitted. Where the charge has been paid in
full, liability will be reduced to zero. This ensures that where an invalidly imposed
charge has been paid the validly imposed charge is also taken to be paid. Where a
person recovers from the Commonwealth an amount which has been invalidly
charged, through a court or other means, the validly imposed charge is increased by
that amount. This ensures that where a person recovers an invalidly imposed charge
10
from the Commonwealth, the recovered amount will be payable to the
Commonwealth under a validly imposed charge.
This clause ensures that those liable to pay a charge or charges under the Act will not
be liable to pay twice in relation to the same matter. Similarly, a charge under this Act
is taken to have been imposed only so far as the charge would be neither a duty of
customs nor a duty of excise within the meaning of section 55 of the Constitution.
Part 4--Miscellaneous
Clause 12 Regulations
This clause permits the Governor-General to make regulations to prescribe any
matters necessary or convenient to carry out or give effect to the Quarantine Charges
(Imposition-General) Act 2014.
11
Notes on clauses
Quarantine Charges (Imposition-Customs) Bill 2014
Part 1--Preliminary
Clause 1 Short title
This clause provides that the Bill, when enacted, may be cited as the Quarantine
Charges (Imposition-Customs) Act 2014.
Clause 2 Commencement
This clause provides for the commencement of the Act. Each provision of the Act
specified in column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 in the table.
Clause 3 Act binds the Crown
This clause provides that the Act will bind the Crown in each of its capacities. This
means that the Commonwealth and state and territory governments will be bound to
comply with the provisions of the Act.
Clause 4 Extension to external Territories
This clause provides that the Act will extend to the territory of Christmas Island and
the Cocos (Keeling) Islands. It also provides that the regulations to the Act may
extend the Act or any of its provisions to any other external territory that is prescribed
by the regulations.
This clause ensures that charges in relation to prescribed matters connected with the
administration of the Quarantine Act can be imposed anywhere those services are
provided including in the territory of Christmas Island and the Cocos (Keeling)
Islands and any other external territory that is prescribed by the regulations.
Parliament will have the opportunity to scrutinise the extension of the Act to an
external territory when the enabling regulations are tabled in each House of
Parliament.
Clause 5 Extraterritorial application
This clause extends the operation of the Act beyond Australia's territorial jurisdiction,
ensuring that charges in relation to prescribed matters connected with the
administration of the Quarantine Act can be imposed on persons and organisations
located overseas. This clause is necessary to impose charges on persons wishing to
import goods into Australia who are located overseas.
Clause 6 Act does not impose tax on property of a State
This clause ensures that charges imposed under the Act are not taken to be imposed
on property of any kind belonging to a State.
Should a question arise whether certain charges would amount to taxation imposed on
property belonging to a state, subclause 6(2) clarifies that `property of any kind
belonging to a State' has the same meaning as in section 114 of the Constitution.
12
Nothing under this clause would prevent a state voluntarily paying charges imposed
under this Act.
Part 2--Charges
Clause 7 Imposition of charges
This clause permits the Commonwealth to impose charges, as duties of customs, in
relation to prescribed matters connected with the administration of the
Quarantine Act. These matters will be prescribed in the delegated legislation and will
reflect the indirect biosecurity services provided by the department, such as, but not
limited to scientific analysis, intelligence and surveillance.
Charges imposed under the Act are imposed as taxes only for the purposes of cost
recovery. Two or more charges may be prescribed in relation to the same matter or a
single charge may cover two or more matters. This will provide the department with
sufficient flexibility to ensure that any charges best reflect the indirect biosecurity
services provided and allow the cost-recovery for such services to be appropriate in all
circumstances.
Charges imposed under this Act are only valid insofar as the charge is a duty of
customs within the meaning of section 55 of the Constitution. This ensures that
persons liable to pay a charge under the Act will not be liable to pay an additional
charge for the provision of the same service or product under either the Quarantine
Charges (Imposition-Excise) Act 2014 or the Quarantine Charges (Imposition-
General) Act 2014.
Clause 8 Matters relating to amount of charges
This clause allows for regulations to prescribe charges by specifying an amount as the
charge or by specifying a method for calculating the amount of a charge.
Specifying the amount of a charge or the method for calculating the amount of a
charge in regulations, as opposed to the Act itself, ensures that there is appropriate
flexibility to change the amount of a charge or the method for calculating the amount
of a charge over time. This will allow charges imposed under the Act to be increased
or decreased as operational practices evolve and technology develops. This will also
help to avoid over or under recovery.
Subclause 8(2) provides that before the Governor-General makes a regulation under
subclause 7(1) prescribing a charge in relation to a matter, the Minister must be
satisfied that the amounts of charges are set at a level that is designed to recover no
more than the likely cost to the Commonwealth in connection with the matter.
This ministerial oversight provides assurance to those liable to pay a charge or
charges under the Act, that the amount charged reflects the likely costs to the
Commonwealth in connection with the matter. Any charges set out in the regulations
will be consistent with the Australian Government Cost Recovery Guidelines.
13
Clause 9 Who is liable to pay charges
This clause allows the regulations to prescribe who is liable to pay a charge and that
one or more persons may be liable to pay a particular charge or charges prescribed
under the Act.
This will provide the department with sufficient flexibility to ensure that any charges
best identify the recipient of the indirect biosecurity services provided and allow the
cost-recovery for such services to be appropriate in all circumstances.
Specifying who is liable to pay a charge in regulations, as opposed to the Act itself,
ensures that there is appropriate flexibility to change the nature of the charge over
time. This will allow charges imposed under the Act to be targeted at the appropriate
recipient of the indirect biosecurity service as operational practices evolve. This will
also ensure that the charges are consistent with the Australian Government Cost
Recovery Guidelines.
Clause 10 Exemptions from charges
This clause allows for the regulations to provide for certain persons or activities to be
exempt from a charge or charges under the Act.
Specifying who is exempt from a charge in regulations, as opposed to the Act itself,
ensures that there is appropriate flexibility to change the nature of the charge over
time. This will provide the department with the ability to act in exceptional
circumstances or where government policy requires that a class of persons be exempt
from charges - for example, the diplomatic corps.
Part 3--Validation
Clause 11 Validation of fees charged under the Quarantine Act 1908
This clause provides that where a charge has been imposed under the Quarantine Act
and it was done so in a manner that may be found to be invalid, the charge is validly
imposed under this Act. This ensures that the government's intention to recover the
costs of providing services is done so validly under law.
This clause also provides that the amount of the charge validly imposed under this Act
will be equal to the amount purported to be imposed by the Quarantine Act in relation
to the same matter. This ensures that no charge validly imposed under this Act is of
greater or lower value than originally charged.
This clause further provides that the amount of the validly imposed charge may be
reduced by an amount already paid or remitted. Where the charge has been paid in
full, liability will be reduced to zero. This ensures that where an invalidly imposed
charge has been paid the validly imposed charge is also taken to be paid. Where a
person recovers from the Commonwealth an amount which has been invalidly
charged, through a court or other means, the validly imposed charge is increased by
that amount. This ensures that where a person recovers an invalidly imposed charge
from the Commonwealth, the recovered amount will be payable to the
Commonwealth under a validly imposed charge.
14
This clause ensures that those liable to pay a charge or charges under the Act will not
be liable to pay twice in relation to the same matter. Similarly, a charge under this Act
is taken to have been imposed only so far as the charge would be neither general
taxation nor a duty of excise within the meaning of section 55 of the Constitution.
Part 4--Miscellaneous
Clause 12 Regulations
This clause permits the Governor-General to make regulations to prescribe any
matters necessary or convenient to carry out or give effect to the Quarantine Charges
(Imposition-Customs) Act 2014.
15
Notes on clauses
Quarantine Charges (Imposition-Excise) Bill 2014
Part 1--Preliminary
Clause 1 Short title
This clause provides that the Bill, when enacted, may be cited as the Quarantine
Charges (Imposition-Excise) Act 2014.
Clause 2 Commencement
This clause provides for the commencement of the Act. Each provision of the Act
specified in column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 in the table.
Clause 3 Act binds the Crown
This clause provides that the Act will bind the Crown in each of its capacities. This
means that the Commonwealth and state and territory governments will be bound to
comply with the provisions of the Act.
Clause 4 Extension to external Territories
This clause provides that the Act will extend to the territory of Christmas Island and
the Cocos (Keeling) Islands. It also provides that the regulations to the Act may
extend the Act or any of its provisions to any other external territory that is prescribed
by the regulations.
This clause ensures that charges in relation to prescribed matters connected with the
administration of the Quarantine Act can be imposed anywhere those services are
provided including in the territory of Christmas Island and the Cocos (Keeling)
Islands and any other external territory that is prescribed by the regulations.
Parliament will have the opportunity to scrutinise the extension of the Act to an
external territory when the enabling regulations are tabled in each House of
Parliament.
Clause 5 Act does not impose tax on property of a State
This clause ensures that charges imposed under the Act are not taken to be imposed
on property of any kind belonging to a State.
Should a question arise whether certain charges would amount to taxation imposed on
property belonging to a state, subclause 5(2) clarifies that `property of any kind
belonging to a State' has the same meaning as in section 114 of the Constitution.
Nothing under this clause would prevent a state voluntarily paying charges imposed
under this Act.
16
Part 2--Charges
Clause 6 Imposition of charges
This clause permits the government to impose charges, as duties of excise, in relation
to prescribed matters connected with the administration of the Quarantine Act. These
matters will be prescribed in the delegated legislation and will reflect the indirect
biosecurity services provided by the department, such as, but not limited to scientific
analysis, intelligence and surveillance.
Charges imposed under the Act are imposed as taxes only for the purposes of cost
recovery. Two or more charges may be prescribed in relation to the same matter or a
single charge may cover two or more matters. This will provide the department with
sufficient flexibility to ensure that any charges best reflect the indirect biosecurity
services provided and allow the cost-recovery for such services to be appropriate in all
circumstances.
Charges imposed under this Act are only valid insofar as the charge is a duty of excise
within the meaning of section 55 of the Constitution. This ensures that persons liable
to pay a charge under the Act will not be liable to pay an additional charge for the
provision of the same service or product under either the Quarantine Charges
(Imposition-Customs) Act 2014 or the Quarantine Charges (Imposition-General) Act
2014.
Clause 7 Matters relating to amount of charges
This clause allows for regulations to prescribe charges by specifying an amount as the
charge or by specifying a method for calculating the amount of a charge.
Specifying the amount of a charge or the method for calculating the amount of a
charge in regulations, as opposed to the Act itself, ensures that there is appropriate
flexibility to change the amount of a charge or the method for calculating the amount
of a charge over time. This will allow charges imposed under the Act to be increased
or decreased as operational practices evolve and technology develops. This will also
help to avoid over or under recovery.
Subclause 7(2) provides that before the Governor-General makes a regulation under
subclause 6(1) prescribing a charge in relation to a matter, the Minister must be
satisfied that the amounts of charges are set at a level that is designed to recover no
more than the likely cost to the Commonwealth in connection with the matter.
This ministerial oversight provides assurance to those liable to pay a charge or
charges under the Act, that the amount charged reflects the likely costs to the
Commonwealth in connection with the matter. Any charges set out in the regulations
will be consistent with the Australian Government Cost Recovery Guidelines.
Clause 8 Who is liable to pay charges
This clause allows the regulations to prescribe who is liable to pay a charge and that
one or more persons may be liable to pay a particular charge or charges prescribed
under the Act.
17
This will provide the department with sufficient flexibility to ensure that any charges
best identify the recipient of the indirect biosecurity services provided and allow the
cost-recovery for such services to be appropriate in all circumstances.
Specifying who is liable to pay a charge in regulations, as opposed to the Act itself,
ensures that there is appropriate flexibility to change the nature of the charge over
time. This will allow charges imposed under the Act to be targeted at the appropriate
recipient of the indirect biosecurity service as operational practices evolve. This will
also ensure that the charges are consistent with the Australian Government Cost
Recovery Guidelines.
Clause 9 Exemptions from charges
This clause allows for the regulations to provide for certain persons or activities to be
exempt from a charge or charges under the Act.
Specifying who is exempt from a charge in regulations, as opposed to the Act itself,
ensures that there is appropriate flexibility to change the nature of the charge over
time. This will provide the department with the ability to act in exceptional
circumstances or where government policy requires that a class of persons be exempt
from charges - for example, the diplomatic corps.
Part 3--Validation
Clause 10 Validation of fees charged under the Quarantine Act 1908
This clause provides that where a charge has been imposed under the Quarantine Act
and it was done so in a manner that may be found to be invalid, the charge is validly
imposed under this Act. This ensures that the government's intention to recover the
costs of providing services is done so validly under law.
This clause also provides that the amount of the charge validly imposed under this Act
will be equal to the amount purported to be imposed by the Quarantine Act in relation
to the same matter. This ensures that no charge validly imposed under this Act is of
greater or lower value than originally charged.
This clause further provides that the amount of the validly imposed charge may be
reduced by an amount already paid or remitted. Where the charge has been paid in
full, liability will be reduced to zero. This ensures that where an invalidly imposed
charge has been paid the validly imposed charge is also taken to be paid. Where a
person recovers from the Commonwealth an amount which has been invalidly
charged, through a court or other means, the validly imposed charge is increased by
that amount. This ensures that where a person recovers an invalidly imposed charge
from the Commonwealth, the recovered amount will be payable to the
Commonwealth under a validly imposed charge.
This clause ensures that those liable to pay a charge or charges under the Act will not
be liable to pay twice in relation to the same matter. Similarly, a charge under this Act
is taken to have been imposed only so far as the charge would be neither general
taxation nor a duty of customs within the meaning of section 55 of the Constitution.
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Part 4--Miscellaneous
Clause 11 Regulations
This clause permits the Governor-General to make regulations to prescribe any
matters necessary or convenient to carry out or give effect to the Quarantine Charges
(Imposition-Excise) Act 2014.
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