An Act to provide for collection and other matters relating to horse disease response levy, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Horse Disease Response Levy Collection Act 2011.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="TableHeading"><span>Commencement information</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 1</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 2</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Column 3</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Provision(s)</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Commencement</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Date/Details</span></p></td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>1.</span><span> </span><span>Sections</span><span> </span><span>1 and 2 and anything in this Act not elsewhere covered by this table</span></p></td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The day this Act receives the Royal Assent.</span></p></td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>14</span><span> </span><span>October 2011</span></p></td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>2.</span><span> </span><span>Sections</span><span> </span><span>3 to 40</span></p></td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>The later of:</span></p><p class="Tablea"><span>(a) the start of the day after this Act receives the Royal Assent; and</span></p><p class="Tablea"><span>(b) the commencement of the </span><span style="font-style:italic">Horse Disease Response Levy Act 2011</span><span>.</span></p><p class="Tabletext"><span>However, the provision(s) do not commence at all if the event mentioned in paragraph</span><span> </span><span>(b) does not occur.</span></p></td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top"><p class="Tabletext"><span>15</span><span> </span><span>October 2011</span></p></td></tr></tbody></table>
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Definitions
In this Act:
authorised person means a person appointed under subsection 37(1) for the purposes of the provision in which the expression occurs.
EADR agreement means 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.
late payment penalty means penalty payable under section 7.
levy means levy imposed by the Horse Disease Response Levy Act 2011.
levy law means Part 2 of this Act, the regulations, the Horse Disease Response Levy Act 2011 and the regulations under that Act.
manufactured feed has the same meaning as in the Horse Disease Response Levy Act 2011.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
Secretary means the Secretary of the Department.
worm treatment has the same meaning as in the Horse Disease Response Levy Act 2011.
4 Act binds Crown
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for an offence.
Part 2—Collection of levy
5 When levy is due for payment
Amounts of levy are due for payment as prescribed by the regulations.
6 Recovery of levy etc.
The Commonwealth may recover amounts of levy that are due for payment and amounts of late payment penalty as debts due to the Commonwealth.
7 Penalty for late payment of levy
If any levy remains unpaid after it became due for payment, the person liable to pay the levy must pay the Commonwealth the amount of penalty worked out as follows:
(a) during the month in which the levy became due for payment the penalty accrues at the rate of 2% a month on the levy due;
(b) during each later month the amount of penalty is the sum of:
(i) each amount of penalty that accrued during a previous month; and
(ii) the amount accruing during that month at the rate of 2% a month on the sum of the amount of levy then payable and penalty payable at the end of the previous month.
8 Remission of late payment penalty
The Secretary may remit all or part of an amount of late payment penalty.
9 Review of refusal to remit late payment penalty
(1) A person affected by a decision to refuse to remit all or part of an amount under section 8 may request the Secretary to reconsider the decision.
(2) The request must:
(a) be in writing; and
(b) set out the reasons for making the request; and
(c) be made:
(i) within 28 days after the day on which the person receives notice of the decision; or
(ii) within such further period as the Secretary allows.
(3) Within 45 days after receiving the request, the Secretary must reconsider the decision and may affirm, revoke or vary the decision, as the Secretary thinks fit.
(4) If the Secretary affirms, revokes or varies a decision, the Secretary must inform the person who made the request of the result of the reconsideration of the decision and give the reasons for the affirmation, revocation or variation.
(5) An application may be made to the Administrative Review Tribunal for review of the Secretary’s decision under subsection (3) affirming, varying or revoking a decision to refuse to remit all or part of an amount under section 8.
10 Overpayments of levy and late payment penalty
(1) If an amount of levy or late payment penalty has been overpaid, the Commonwealth must refund the overpayment.
(2) However, if, in purported compliance with the Australian Animal Health Council (Live‑stock Industries) Funding Act 1996, an amount equal to all or part of the overpayment has been paid to a body:
(a) if the Commonwealth has not refunded the overpayment—the body (and not the Commonwealth) must pay that amount to the person who made the overpayment; or
(b) if the Commonwealth has refunded the overpayment—the Commonwealth may recover the amount from the body, by set‑off or otherwise.
Part 3—Enforcement
Division 1—Requirement to give information or documents
11 Powers to seek information or documents
(1) The Secretary may give a person a written notice requiring the person to give the Secretary, within a reasonable period of at least 14 days specified in the notice and in a way specified in the notice, specified information or documents that the Secretary reasonably believes are relevant to the operation of this Act.
(2) The notice may also require the person to verify the information by statutory declaration.
12 Offence of failing to give information, document or return
(1) A person must not refuse or fail to give information, a document or a return that the person is required to give by or under this Act or the regulations.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
(3) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) A person is not excused from giving information, a document or a return on the ground that to do so might tend to incriminate the person or expose the person to a penalty.
(5) However:
(a) any information or document or return given by an individual; or
(b) any information, document or thing obtained as a direct or indirect consequence of an individual giving the information, document or return;
is not admissible in evidence against the individual in criminal proceedings except proceedings for an offence against subsection (1) of this section or an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act.
(6) A court that convicts a person of an offence against subsection (1) may order the person to give the information, document or return concerned to an authorised person within the time specified in the order.
Division 2—Monitoring
Subdivision A—Monitoring powers
13 Monitoring powers
Provisions subject to monitoring
(1) The levy law is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the levy law has been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with the levy law or Division 1 of this Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the levy law and to the information mentioned in subsection (2), there are no related provisions.
Authorised applicant
(4) If a person is an authorised person for the purposes of any provision of this Act, then, for the purposes of Part 2 of the Regulatory Powers Act, the person is an authorised applicant in relation to the levy law and to the information mentioned in subsection (2).
Authorised person
(5) If a person is an authorised person for the purposes of any provision of this Act, then, for the purposes of Part 2 of the Regulatory Powers Act, the person is an authorised person in relation to the levy law and to the information mentioned in subsection (2).
Issuing officer
(6) For the purposes of Part 2 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to the levy law and to the information mentioned in subsection (2).
Relevant chief executive
(7) For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the levy law and to the information mentioned in subsection (2).
(8) The Secretary may, in writing, delegate the powers under Part 2 of the Regulatory Powers Act in relation to the levy law, or in relation to the information mentioned in subsection (2), to an APS employee in the Department.
(9) In the exercise of a power delegated under subsection (8), a delegate is subject to the directions of the Secretary.
(10) If the Secretary gives a direction under subsection (9) in writing, the direction is not a legislative instrument.
Relevant court
(11) For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the levy law and to the information mentioned in subsection (2):
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Additional monitoring powers
(12) For the purposes of determining:
(a) whether a provision of the levy law has been, or is being, complied with; or
(b) the correctness of information mentioned in subsection (2);
the additional power mentioned in subsection (13) is taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act.
(13) The additional monitoring power is the power to seize any thing at any premises entered under section 18 of the Regulatory Powers Act, as that section applies in relation to the levy law or the information mentioned in subsection (2).
Person assisting
(14) For the purposes of Part 2 of the Regulatory Powers Act, an authorised person may be assisted by other persons in exercising powers or performing functions or duties under that Part in relation to the levy law and to the information mentioned in subsection (2).
Subdivision B—General provisions relating to seizure
14 Copies of seized things to be provided
(1) This section applies if an authorised person seizes one or more of the following from the premises under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the levy law and to the information mentioned in subsection 13(2) of this Act:
(a) a document, film, computer file or other thing that can be readily copied;
(b) a storage device, the information in which can be readily copied.
(2) The occupier of the premises, or another person who apparently represents the occupier and who is present when the seizure occurs, may request the authorised person to give a copy of the thing or the information to the occupier or other person.
(3) The authorised person must comply with the request as soon as practicable after the seizure.
(4) However, the authorised person is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.
15 Receipts for seized things
(1) The authorised person must provide a receipt for a thing that is seized under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the levy law and to the information mentioned in subsection 13(2) of this Act.
(2) One receipt may cover 2 or more things seized.
16 Return of seized things
(1) The Secretary must take reasonable steps to return a thing seized under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the levy law and to the information mentioned in subsection 13(2) of this Act, when the earliest of the following happens:
(a) the reason for the thing’s seizure no longer exists;
(b) it is decided that the thing is not to be used in evidence;
(c) the period of 60 days after the thing’s seizure ends.
Note: See subsections (2) and (3) for exceptions to this rule.
Exceptions
(2) Subsection (1):
(a) is subject to any contrary order of a court; and
(b) does not apply if the thing:
(i) is forfeited or forfeitable to the Commonwealth; or
(ii) is the subject of a dispute as to ownership.
(3) The Secretary is not required to take reasonable steps to return a thing because of paragraph (1)(c) if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and those proceedings (and any appeal from those proceedings) have not been completed; or
(b) the thing may continue to be retained because of an order under section 17; or
(c) the Commonwealth or the Secretary is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
Return of thing
(4) A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
17 Magistrate may permit a thing to be retained
(1) The Secretary may apply to a magistrate for an order permitting the retention of a thing seized under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the levy law and to the information mentioned in subsection 13(2) of this Act, for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of a magistrate under this section.
(2) Before making the application, the Secretary must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person whom the Secretary believes to have such an interest of the proposed application.
(3) Any person notified under paragraph (2)(b) is entitled to be heard in relation to the application.
Order to retain thing
(4) The magistrate may order that the thing may continue to be retained for a period specified in the order if the magistrate is satisfied that it is necessary for the thing to continue to be retained:
(a) for the purposes of an investigation as to the existence or amount of a liability under the levy law; or
(b) to enable evidence of such a liability to be secured for the purposes of recovering levy or late payment penalty.
(5) The period specified must not exceed 3 years.
18 Disposal of things
(1) The Secretary may dispose of a thing seized under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the levy law and to the information mentioned in subsection 13(2) of this Act, if:
(a) the Secretary has taken reasonable steps to return the thing to a person; and
(b) either:
(i) the Secretary has been unable to locate the person; or
(ii) the person has refused to take possession of the thing.
(2) The Secretary may dispose of the thing in such manner as the Secretary thinks appropriate.
19 Compensation for acquisition of property
(1) If the operation of section 18 would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia, or the Federal Circuit and Family Court of Australia (Division 2), for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Part 4—Regular review of levy
35 Minister to ensure levy is reviewed every 5 years
(1) The Minister must ensure that at least once every 5 years there is a review of whether a levy on manufactured feed and worm treatments is the most appropriate way of raising money to meet the costs of any emergency response to a disease affecting horses.
(2) However, the Minister need not ensure there is a review within a 5‑year period if at the end of the period regulations are in force under the Horse Disease Response Levy Act 2011 providing for the working out of an amount (except a nil amount) of levy on a disposal of manufactured feed or worm treatment.
(3) If there is not a review in that period, the Minister must ensure that there is a review described in subsection (1) as soon as practicable after there are not any such regulations in force.
Part 5—Miscellaneous
36 Disclosure of information
(1) An authorised person may disclose information described in subsection (2) to any of the following:
(a) a body that is representative of the horse industry and is a party to the EADR agreement;
(b) the Australian Animal Health Council Limited (ACN 071 890 956);
(c) any other person to whom the Secretary allows information to be disclosed.
(2) The information is:
(a) information relating to amounts of levy received or receivable by the Commonwealth; or
(b) the name, address and other contact details of a person who is or was liable to pay levy.
Note 1: Information relating to amounts of levy received or receivable may be information relating to a particular sector of the horse industry or a levy relating to activities in a particular State, Territory or region.
Note 2: Information described in paragraph (2)(b) is personal information for the purposes of the Privacy Act 1988, so Australian Privacy Principle 6 applies to use and further disclosure of that information if it is disclosed under this section.
(3) Subsection (1) does not authorise the disclosure of information relating to the amount of levy received or receivable by the Commonwealth from a person whose name, address or other contact details are disclosed under that subsection.
37 Authorised persons
(1) The Secretary may appoint in writing a person appointed or engaged under the Public Service Act 1999 to be an authorised person for the purposes of one or more specified provisions of this Act.
(2) The Secretary must not appoint a person as an authorised person unless the Secretary is satisfied that the person has suitable qualifications and experience to properly exercise the powers of an authorised person.
(3) An authorised person must, in exercising powers or performing functions as an authorised person, comply with any directions of the Secretary.
(4) If the Secretary gives a direction under subsection (3) in writing, the direction is not a legislative instrument.
39 Delegation
(1) The Secretary may delegate in writing all or any of his or her powers under this Act or the regulations to an APS employee in the Department.
(2) In the exercise of a delegated power, a delegate is subject to the directions of the Secretary.
(3) If the Secretary gives a direction under subsection (2) in writing, the direction is not a legislative instrument.
40 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may:
(a) make provision relating to the payment of levy and late payment penalty; and
(b) prescribe requirements for manufacturers or importers of manufactured feed or worm treatments to make and keep records relating to manufactured feed or worm treatments; and
(c) prescribe requirements for manufacturers or importers of manufactured feed or worm treatments to give returns, information or documents for the purposes of this Act; and
(d) provide for penalties, not exceeding 10 penalty units, for offences against the regulations.
(3) The regulations may provide that information given in accordance with a requirement covered by paragraph (2)(c) must be verified by statutory declaration.
(4) Subsections (2) and (3) do not limit subsection (1).