2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Horse Disease Response Levy Collection Bill 2008 No. , 2008 (Agriculture, Fisheries and Forestry) A Bill for an Act to provide for the collection of horse disease response levy, and for related purposes [Page Break] Part 1--Preliminary 1 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 2 3 Definitions .......................................................................................... 2 4 Act to bind the Crown......................................................................... 2 5 Application of the Criminal Code ...................................................... 3 Part 2--Liability for horse disease response levy and penalties 4 6 Liability of horse registration bodies .................................................. 4 7 Collection of horse disease response levy by horse registration bodies............................................................................... 4 8 When levy due for payment................................................................ 4 9 Application of the Financial Management and Accountability Act 1997 ...................................................................... 5 10 Penalty for late payment ..................................................................... 5 11 Remission of penalty .......................................................................... 5 12 Recovery of levy................................................................................. 6 13 Refund of levy .................................................................................... 6 Part 3--Information gathering powers 7 14 Powers to seek information or documents.......................................... 7 15 Offences in relation to returns etc....................................................... 7 16 Conduct by directors, employees and agents...................................... 8 Part 4--Review of decisions 10 17 Review by the M inister..................................................................... 10 Part 5--Miscellaneous 11 18 Release of information...................................................................... 11 19 Appointment of authorised persons .................................................. 11 20 Delegation by Secretary .................................................................... 12 21 Regulations ....................................................................................... 12 i Horse Disease Response Levy Collection Bill 2008 No. , 2008 [Page Break] 2 horse disease response levy, and for related 3 purposes 4 The Parliament of Australia enacts: 5 Part 1--Preliminary 6 7 1 Short title 8 This Act may be cited as the Horse Disease Response Levy 9 Collection Act 2008. Horse Disease Response Levy Collection Bill 2008 No. , 2008 1 [Page Break] Section 2 1 2 Commence ment 2 This Act commences on the day after it receives the Royal Assent. 3 3 Definitions 4 In this Act: 5 Australian Animal Health Council means the Australian Animal 6 Health Council Limited (ACN 071 890 956). 7 authorised person means a person appointed under subsection 8 18(1). 9 horse has the same meaning as in the Horse Disease Response 10 Levy Act 2008. 11 horse disease response levy means levy of that name imposed by 12 the Horse Disease Response Levy Act 2008. 13 horse industry body has the same meaning as in the Horse Disease 14 Response Levy Act 2008. 15 horse registration body has the same meaning as in the Horse 16 Disease Response Levy Act 2008. 17 owner has the same meaning as in the Horse Disease Response 18 Levy Act 2008. 19 Secretary means the Secretary of the Department. 20 4 Act to bind the Crown 21 (1) This Act binds the Crown in right of the Commonwealth, of each 22 of the States, of the Australian Capital Territory, of the Northern 23 Territory and of Norfolk Island. 24 (2) However, nothing in this Act renders the Crown liable to be 25 prosecuted for an offence. 2 Horse Disease Response Levy Collection Bill 2008 No. , 2008 [Page Break] Section 5 1 5 Application of the Criminal Code 2 Chapter 2 (other than Part 2.5) of the Criminal Code applies to all 3 offences against this Act. 4 Note: Chapter 2 of the Criminal Code sets out the general principles of 5 criminal responsibility. 6 Horse Disease Response Levy Collection Bill 2008 No. , 2008 3 [Page Break] Section 6 1 2 Part 2--Liability for horse disease response levy 3 and penalties 4 5 6 Liability of horse registration bodies 6 If a horse registration body registers a horse in relation to which 7 horse disease response levy is imposed, the body is liable to pay to 8 the Commonwealth, on behalf of the owner of the horse, an 9 amount equal to the sum of: 10 (a) the amount of any horse disease response levy due for 11 payment in respect of the registration of the horse with the 12 body; and 13 (b) any amount payable under section 10 as a penalty for late 14 payment of horse disease response levy. 15 7 Collection of horse disease response levy by horse registration 16 bodies 17 (1) Despite any law of a State or Territory or any contract entered into 18 before this Act commences, a horse registration body must not 19 register a horse unless the owner of the horse first provides the 20 body with the funds necessary for the body to pay, on behalf of the 21 owner, the horse disease response levy that would be due in respect 22 of the registration of the horse with the body. 23 (2) If a horse registration body registers a horse, the body must give 24 the owner of the horse a receipt for the horse disease response levy 25 paid. 26 8 When levy due for payment 27 Amounts of horse disease response levy are due for payment as 28 required by the regulations. 4 Horse Disease Response Levy Collection Bill 2008 No. , 2008 [Page Break] Section 9 1 9 Application of the Financial Management and Accountability Act 2 1997 3 (1) The Financial Management and Accountability Act 1997 does not 4 apply in relation to horse disease response levy collected by a 5 horse registration body. 6 (2) However, the operation of that Act in relation to money paid by a 7 horse registration body to the Commonwealth is not affected. 8 10 Penalty for late payment 9 If any horse disease response levy remains unpaid after the time 10 when it became due for payment, there is payable by the horse 11 registration body to the Commonwealth, by way of penalty 12 accruing from the time the horse disease response levy became due 13 for payment until it is paid in full, an amount worked out as 14 follows: 15 (a) during the month in which the horse disease response levy 16 became due for payment the amount of penalty accrues at the 17 rate of 2% per month on the horse disease response levy due; 18 (b) during the next and each subsequent month the amount of 19 penalty consists of the sum of: 20 (i) each amount that accrued during a previous month; and 21 (ii) the amount accruing during that month at the rate of 2% 22 per month on the sum of the amount of horse disease 23 response levy then payable and penalty payable at the 24 end of the previous month. 25 11 Remission of penalty 26 (1) Where an amount of penalty becomes payable under section 10 27 because an amount of horse disease response levy remains unpaid 28 after the time when it becomes due for payment, the Minister or an 29 authorised person may, subject to subsection (2), remit the whole 30 or a part of that amount of penalty. 31 (2) An amount remitted by an authorised person under subsection (1) 32 is not to exceed $5,000 or such lower amount as is specified in the Horse Disease Response Levy Collection Bill 2008 No. , 2008 5 [Page Break] Section 12 1 instrument appointing the authorised person under subsection 2 18(1). 3 12 Recovery of levy 4 The following amounts may be recovered by the Commonwealth 5 as debts due to the Commonwealth: 6 (a) amounts of horse disease response levy that are due for 7 payment; 8 (b) amounts payable under section 10. 9 13 Refund of levy 10 (1) Subject to subsection (2), if an amount referred to in section 12 has 11 been overpaid, the amount overpaid must be refunded by the 12 Commonwealth. 13 (2) If, in purported compliance with the Australian Animal Health 14 Council (Live-stock Industries) Funding Act 1996, an amount equal 15 to the amount overpaid, or part of that amount, has been paid to a 16 body, fund or account, then: 17 (a) if the Commonwealth has not, under subsection (1), refunded 18 the amount overpaid--that amount must be refunded by the 19 body, or out of the fund or account, as the case may be; or 20 (b) if the Commonwealth has so refunded the amount payable-- 21 the Commonwealth is entitled to recover from the body, fund 22 or account, as the case may be, by set-off or otherwise, the 23 amount so refunded. 24 6 Horse Disease Response Levy Collection Bill 2008 No. , 2008 [Page Break] Section 14 1 2 Part 3--Information gathering powers 3 4 14 Powe rs to seek information or docume nts 5 (1) An authorised person may give a person a written notice requiring 6 the person to give the authorised person, within the time specified 7 in the notice, specified information or documents relevant to the 8 operation of this Act. 9 (2) The notice may also require the person to verify the information by 10 statutory declaration. 11 15 Offences in relation to returns etc. 12 (1) A person must not refuse or fail to give a return, information or 13 document that the person is required to give by or under this Act or 14 the regulations. 15 Penalty: 60 penalty units. 16 (2) Subsection (1) does not apply if the person has a reasonable 17 excuse. 18 Note: The defendant bears an evidential burden in relation to the matter in 19 subsection (2). See subsection 13.3(3) of the Criminal Code. 20 (3) An offence under subsection (1) is an offence of strict liability. 21 Note: For strict liability, see section 6.1 of the Criminal Code. 22 (4) A person is not excused from giving a return, information or 23 document on the ground that to do so would tend to incriminate the 24 person or expose the person to a penalty. 25 (5) However, in the case of an individual: 26 (a) any return, information or document given; or 27 (b) any information, document or thing obtained as a direct or 28 indirect consequence of giving the return, information or 29 document; 30 is not admissible in evidence against the person in: Horse Disease Response Levy Collection Bill 2008 No. , 2008 7 [Page Break] Section 16 1 (c) criminal proceedings other than proceedings for an offence 2 against subsection (1) of this section or an offence against 3 section 137.1 or 137.2 of the Criminal Code that relates to 4 this Act; or 5 (d) proceedings for recovery of an amount payable by way of 6 penalty under section 10. 7 (6) If a person is convicted of an offence under subsection (1): 8 (a) the court may direct the person to give the return, information 9 or document that he or she is required to give by or under this 10 Act or the regulations; and 11 (b) on being so directed, the person must give the return, 12 information or document to an authorised person within the 13 time specified in the direction. 14 16 Conduct by directors, employees and agents 15 (1) If, in proceedings for an offence against this Act, it is necessary to 16 establish the state of mind of a body corporate in relation to 17 particular conduct, it is sufficient to show that: 18 (a) the conduct was engaged in by a director, employee or agent 19 of the body corporate within the scope of his or her actual or 20 apparent authority; and 21 (b) the director, employee or agent had the state of mind. 22 (2) Any conduct engaged in on behalf of a body corporate by a 23 director, employee or agent of the body corporate within the scope 24 of his or her actual or apparent authority is to be taken, for the 25 purposes of a prosecution for an offence against this Act, to have 26 been engaged in also by the body corporate unless the body 27 corporate establishes that the body corporate took reasonable 28 precautions and exercised due diligence to avoid the conduct. 29 (3) If, in proceedings for an offence against this Act, it is necessary to 30 establish the state of mind of a person other than a body corporate 31 in relation to particular conduct, it is sufficient to show that: 32 (a) the conduct was engaged in by an employee or agent of the 33 person within the scope of his or her actual or apparent 34 authority; and 35 (b) the employee or agent had the state of mind. 8 Horse Disease Response Levy Collection Bill 2008 No. , 2008 [Page Break] Section 16 1 (4) Any conduct engaged in on behalf of a person other than a body 2 corporate (in this subsection called the employer) by an employee 3 or agent of the employer within the scope of his or her actual or 4 apparent authority is to be taken, for the purposes of a prosecution 5 for an offence against this Act, to have been engaged in also by the 6 employer unless the employer establishes that he or she took 7 reasonable precautions and exercised due diligence to avoid the 8 conduct. 9 (5) If: 10 (a) a person other than a body corporate is convicted of an 11 offence; and 12 (b) the person would not have been convicted of the offence if 13 subsections (3) and (4) had not been enacted; 14 the person is not liable to be punished by imprisonment for that 15 offence. 16 (6) A reference in subsection (1) or (3) to the state of mind of a person 17 includes a reference to: 18 (a) the knowledge, intention, opinion, belief or purpose of the 19 person; and 20 (b) the person's reasons for the intention, opinion, belief or 21 purpose. 22 (7) A reference in this section to a director of a body corporate 23 includes a reference to a constituent member of a body corporate 24 incorporated for a public purpose by a law of the Commonwealth, 25 of a State or of a Territory. 26 (8) A reference in this section to engaging in conduct includes a 27 reference to failing or refusing to engage in conduct. 28 Horse Disease Response Levy Collection Bill 2008 No. , 2008 9 [Page Break] Section 17 1 2 Part 4--Review of decisions 3 4 17 Review by the Minister 5 (1) This section applies in respect of a decision to refuse to remit, 6 under subsection 11(1), the whole or a part of an amount. 7 (2) A person affected by the decision may apply, in writing, to the 8 Minister, requesting the Minister to reconsider the decision. 9 (3) The request must: 10 (a) set out the reasons for making the request; and 11 (b) be made: 12 (i) within 28 days after the day on which the person 13 receives notice of the decision; or 14 (ii) within such further period as the Minister allows, either 15 before or after the end of that 28 day period. 16 (4) Within 45 days after receiving the request, the Minister must 17 reconsider the decision and may affirm, revoke or vary the 18 decision, as the Minister thinks fit. 19 (5) If the Minister affirms, revokes or varies a decision, the Minister 20 must inform the person who made the request of the result of the 21 reconsideration of the decision and give the reasons for his or her 22 decision. 23 (6) An application may be made to the Administrative Appeals 24 Tribunal for review of: 25 (a) a decision of the Minister that has been affirmed or varied 26 under subsection (4); or 27 (b) a decision of the Minister under subsection (4) to revoke a 28 decision. 29 10 Horse Disease Response Levy Collection Bill 2008 No. , 2008 [Page Break] Section 18 1 2 Part 5--Miscellaneous 3 4 18 Release of information 5 (1) An authorised person may release information of a kind mentioned 6 in subsection (2) to any of the following: 7 (a) a horse industry body; 8 (b) the Australian Animal Health Council; 9 (c) any other person to whom the Secretary allows information 10 to be released. 11 (2) Subject to subsection (3), the kind of information that the 12 authorised person may release must relate to amounts of horse 13 disease response levy received or receivable by the Commonwealth 14 in any period, including such information as it relates to: 15 (a) a particular sector of the horse industry; or 16 (b) a particular State, Territory or region. 17 (3) Any information released must not identify the name, address or 18 contact details of a person who has paid horse disease response 19 levy to a horse registration body. 20 19 Appointment of authorised persons 21 (1) The Secretary may, in writing, appoint a person appointed or 22 engaged under the Public Service Act 1999 to be an authorised 23 person for the purposes of this Act. 24 (2) The Secretary must not appoint a person as an authorised person 25 unless the Secretary is satisfied that the person has suitable 26 qualifications and experience to properly exercise the powers of an 27 authorised person. 28 (3) An authorised person must, in exercising powers or performing 29 functions as an authorised person, comply with any directions of 30 the Secretary. Horse Disease Response Levy Collection Bill 2008 No. , 2008 11 [Page Break] Section 20 1 (4) If the Secretary gives a direction under subsection (3) in writing, 2 the direction is not a legislative instrument. 3 20 Delegation by Secretary 4 (1) The Secretary may, in writing, delegate all or any of his or her 5 powers under this Act or the regulations to an APS employee in the 6 Department. 7 (2) A delegate is, in the exercise of a delegated power, subject to the 8 directions of the Secretary. 9 (3) If the Secretary gives a direction under subsection (2) in writing, 10 the direction is not a legislative instrument. 11 21 Regulations 12 (1) The Governor-General may make regulations prescribing matters: 13 (a) required or permitted by this Act to be prescribed; or 14 (b) necessary or convenient to be prescribed for carrying out or 15 giving effect to this Act. 16 (2) The matters that may be prescribed under subsection (1) include, 17 but are not limited to: 18 (a) making provision in relation to the payment of horse disease 19 response levy and any penalty for a failure to pay horse 20 disease response levy by the time it became due for payment; 21 and 22 (b) requiring a horse registration body to keep and retain records 23 in relation to horses registered by the body; and 24 (c) requiring a horse registration body to give returns, 25 information or documents for the purposes of this Act; and 26 (d) providing for penalties, not exceeding 10 penalty units, for 27 offences against the regulations. 28 (3) The regulations may provide that information given in accordance 29 with a requirement covered by paragraph (2)(c) must be verified by 30 statutory declaration. 12 Horse Disease Response Levy Collection Bill 2008 No. , 2008