HORSE DISEASE RESPONSE LEVY COLLECTION BILL 2011

i Horse Disease Response Levy Collection Bill 2011 No. , 2011

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Definitions

.........................................................................................

4 Act

binds

Crown

................................................................................

Part 2--Collection of levy

When levy is due for payment ........................................................... 5

Recovery of levy etc. ......................................................................... 5

Penalty for late payment of levy ........................................................ 5

Remission of late payment penalty .................................................... 5

Review of refusal to remit late payment penalty ............................... 5

Overpayments of levy and late payment penalty ............................... 6

Part 3--Investigation

Division 1--Requirement to give information or documents

Powers to seek information or documents ......................................... 7

Offence of failing to give information, document or return ............... 7

Division 2--Monitoring by authorised persons

Subdivision A--Monitoring powers

Authorised person may enter premises by consent or under a

warrant ............................................................................................... 9

Monitoring powers of authorised persons .......................................... 9

15 Operating

electronic equipment ....................................................... 10

Securing evidence of the contravention of a related provision ........ 11

Persons assisting authorised persons ............................................... 12

Authorised person may ask questions and seek production of

documents ........................................................................................ 13

Subdivision B--Obligations and incidental powers of authorised

persons

19 Consent

............................................................................................

Announcement before entry under warrant ..................................... 14

Authorised person to be in possession of warrant ............................ 15

Details of warrant etc. to be given to occupier................................. 15

Expert assistance to operate electronic equipment ........................... 15

Compensation for damage to electronic equipment ......................... 17

Subdivision C--Occupier's rights and responsibilities

Occupier entitled to observe execution of warrant .......................... 18

Horse Disease Response Levy Collection Bill 2011 No. , 2011 ii

Occupier to provide authorised person with facilities and

assistance ......................................................................................... 18

Subdivision D--General provisions relating to seizure

Copies of seized things to be provided ............................................ 19

28 Receipts

for

seized things ................................................................ 19

Return of seized things .................................................................... 20

Magistrate may permit a thing to be retained .................................. 21

31 Disposal

things ............................................................................ 21

Compensation for acquisition of property ....................................... 22

Subdivision E--Monitoring warrants

33 Monitoring

warrants

........................................................................

Subdivision F--Powers of magistrates

34 Powers

magistrates

......................................................................

Part 4--Regular review of levy

Minister to ensure levy is reviewed every 5 years ........................... 25

Part 5--Miscellaneous

36 Disclosure

information ................................................................ 26

37 Authorised

persons

..........................................................................

Identity cards for authorised persons ............................................... 27

39 Delegation

........................................................................................

40 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Horse Disease Response Levy Collection Bill 2011 No. , 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.

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) the commencement of the Horse Disease

Response Levy Act 2011.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

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.

Preliminary Part 1

Section 4

Horse Disease Response Levy Collection Bill 2011 No. , 2011 3

damage, in relation to data, includes damage by erasure of data or

addition of other data.

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.

monitoring powers has the meaning given by sections 14, 15 and

16.

monitoring warrant means a warrant issued under section 33.

person assisting an authorised person has the meaning given by

section 17.

premises includes the following:

(a) a structure, building, vehicle, vessel or aircraft;

(b) a place (whether or not enclosed or built on);

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.

Collection of levy Part 2

Section 5

Horse Disease Response Levy Collection Bill 2011 No. , 2011 5

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:

Part 2 Collection of levy

Section 10

6 Horse Disease Response Levy Collection Bill 2011 No. , 2011

(a) be in writing; and

(b) set out the reasons for making the request; and

(c)

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 Appeals

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.

Investigation Part 3

Requirement to give information or documents Division 1

Section 11

Horse Disease Response Levy Collection Bill 2011 No. , 2011 7

Part 3--Investigation

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

Part 3 Investigation

Division 1 Requirement to give information or documents

Section 12

8 Horse Disease Response Levy Collection Bill 2011 No. , 2011

(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.

Investigation Part 3

Monitoring by authorised persons Division 2

Section 13

Horse Disease Response Levy Collection Bill 2011 No. , 2011 9

Division 2--Monitoring by authorised persons

Subdivision A--Monitoring powers

13 Authorised person may enter premises by consent or under a

warrant

(1) An authorised person may enter any premises and exercise the

monitoring powers for either or both of the following purposes:

(a) determining whether the levy law has been, or is being,

complied with;

(b) determining whether information given under Division 1 or

the regulations is correct.

Note: The

monitoring powers are set out in sections 14, 15 and 16.

(2) However, an authorised person is not authorised to enter the

premises unless:

(a) the occupier of the premises has consented to the entry and

the authorised person has shown his or her identity card if

required by the occupier; or

(b) the entry is made under a monitoring warrant.

Note:

If entry to the premises is with the occupier's consent, the authorised

person must leave the premises if the consent ceases to have effect:

see section 19.

14 Monitoring powers of authorised persons

The following are the monitoring powers that an authorised person

may exercise in relation to premises under section 13:

(a) the power to search the premises and any thing on the

premises;

(b) the power to inspect or examine any thing on the premises;

recording of the premises or any thing on the premises;

(d) the power to inspect any document on the premises;

(e) the power to take extracts from, or make copies of, any such

document;

(f) the power to seize any thing on the premises;

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 15

10 Horse Disease Response Levy Collection Bill 2011 No. , 2011

(g) the power to take onto the premises such equipment and

materials as the authorised person requires for the purpose of

exercising powers in relation to the premises;

(h) the powers set out in subsections 15(1) and (3) and 16(2).

15 Operating electronic equipment

(1)

The

monitoring powers include the power to operate electronic

equipment on the premises if the authorised person has reasonable

grounds to suspect that any of the following contains relevant data:

(a)

the

equipment;

(b) a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it.

(2)

Relevant data means information that is relevant to determining

whether:

(a) the levy law has been, or is being, complied with; or

(b) information given under Division 1 or the regulations is

correct.

(3)

The

monitoring powers include the following powers in relation to

relevant data found in the exercise of the power under

subsection (1):

(a) the power to operate electronic equipment on the premises to

put the relevant data in documentary form and remove the

documents so produced from the premises;

(b) the power to operate electronic equipment on the premises to

transfer the relevant data to a disk, tape or other storage

device that:

(i) is brought to the premises for the exercise of the power;

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.

Investigation Part 3

Monitoring by authorised persons Division 2

Section 16

Horse Disease Response Levy Collection Bill 2011 No. , 2011 11

(4) An authorised person may operate electronic equipment as

mentioned in subsection (1) or (3) only if the authorised person

believes on reasonable grounds that the operation of the equipment

can be carried out without damage to the equipment.

16 Securing evidence of the contravention of a related provision

(1) This section applies if an authorised person enters premises under a

monitoring warrant for either or both of the following purposes:

(a) determining whether the levy law has been, or is being,

complied with;

(b) determining whether information given under Division 1 or

the regulations is correct.

(2)

The

monitoring powers include the power to secure a thing for a

period not exceeding 24 hours if:

(a) the thing is found during the exercise of monitoring powers

on the premises; and

(b) an authorised person believes on reasonable grounds that:

(i) the thing affords evidence of the contravention of

section 12 or a requirement in regulations made for the

purposes of paragraph 40(2)(b) or (c); and

(ii) it is necessary to secure the thing in order to prevent it

from being concealed, lost or destroyed before a warrant

to seize the thing is obtained; and

(iii) it is necessary to secure the thing without a warrant

because the circumstances are serious and urgent.

(3) If an authorised person believes on reasonable grounds that the

thing needs to be secured for more than 24 hours, the authorised

person may apply to a magistrate for an extension of that period.

(4) The authorised person must give notice to the occupier of the

premises, or another person who apparently represents the

occupier, of his or her intention to apply for an extension. The

occupier or other person is entitled to be heard in relation to that

application.

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 17

12 Horse Disease Response Levy Collection Bill 2011 No. , 2011

(5) The provisions of this Division relating to the issue of monitoring

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(6) However, a magistrate may issue an extension only if he or she is

satisfied that it is not practicable to obtain and execute a warrant to

seize the thing within the period if it is not extended.

(7) The 24-hour period may be extended more than once.

17 Persons assisting authorised persons

Authorised persons may be assisted by other persons

(1) An authorised person may be assisted by other persons in

exercising powers or performing functions or duties under this

Division, if that assistance is necessary and reasonable. A person

giving such assistance is a person assisting the authorised person.

Powers, functions and duties of a person assisting the authorised

person

(2) A person assisting the authorised person:

(a) may enter the premises; and

(b) may exercise powers and perform functions and duties under

this Division for the purposes of assisting the authorised

person to determine whether:

(i) the levy law has been, or is being, complied with; or

(ii) information given under Division 1 or the regulations is

correct; and

assisting by the authorised person.

(3) A power exercised by a person assisting the authorised person as

mentioned in subsection (2) is taken for all purposes to have been

exercised by the authorised person.

(4) A function or duty performed by a person assisting the authorised

person as mentioned in subsection (2) is taken for all purposes to

have been performed by the authorised person.

Investigation Part 3

Monitoring by authorised persons Division 2

Section 18

Horse Disease Response Levy Collection Bill 2011 No. , 2011 13

(5) If a direction is given under paragraph (2)(c) in writing, the

direction is not a legislative instrument.

18 Authorised person may ask questions and seek production of

documents

Application

(1) This section applies if an authorised person enters premises for the

purposes of determining whether:

(a) the levy law has been, or is being, complied with; or

(b) information given under Division 1 or the regulations is

correct.

Entry with consent

(2) If the entry is authorised because the occupier of the premises

consented to the entry, the authorised person may ask the occupier

to answer any questions, and produce any document, relating to:

(a) the operation of the levy law; or

(b)

the

information.

Entry under a monitoring warrant

(3) If the entry is authorised by a monitoring warrant, the authorised

person may require any person on the premises to answer any

questions, and produce any document, relating to:

(a) the operation of the levy law; or

(b)

the

information.

Offence

(4) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Penalty for contravention of this subsection: 30 penalty units.

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 19

14 Horse Disease Response Levy Collection Bill 2011 No. , 2011

Subdivision B--Obligations and incidental powers of

authorised persons

19 Consent

(1) Before obtaining the consent of an occupier of premises for the

purposes of paragraph 13(2)(a), an authorised person must inform

the occupier that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has

effect until the consent is withdrawn.

(5) If an authorised person entered premises because of the consent of

the occupier of the premises, the authorised person, and any person

assisting the authorised person, must leave the premises if the

consent ceases to have effect.

20 Announcement before entry under warrant

(1) Before entering premises under a monitoring warrant, an

authorised person must:

(a) announce that he or she is authorised to enter the premises;

and

(b) show his or her identity card to the occupier of the premises,

or to another person who apparently represents the occupier,

if the occupier or other person is present at the premises; and

to the premises.

(2) However, an authorised person is not required to comply with

subsection (1) if the authorised person believes on reasonable

grounds that immediate entry to the premises is required:

(a) to ensure the safety of a person; or

Investigation Part 3

Monitoring by authorised persons Division 2

Section 21

Horse Disease Response Levy Collection Bill 2011 No. , 2011 15

(b) to ensure that the effective execution of the warrant is not

frustrated.

(3)

If:

(a) an authorised person does not comply with subsection (1)

because of subsection (2); and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises;

the authorised person must, as soon as practicable after entering the

premises, show his or her identity card to the occupier or other

person.

21 Authorised person to be in possession of warrant

If a monitoring warrant is being executed in relation to premises,

an authorised person executing the warrant must be in possession

of the warrant or a copy of the warrant.

22 Details of warrant etc. to be given to occupier

(1) An authorised person must comply with subsection (2) if:

(a) a monitoring warrant is being executed in relation to

premises; and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises.

(2) The authorised person must, as soon as practicable:

(a) make a copy of the warrant available to the occupier or other

person (which need not include the signature of the

magistrate who issued it); and

(b) inform the occupier or other person of the rights and

responsibilities of the occupier or other person under

Subdivision C.

23 Expert assistance to operate electronic equipment

(1) This section applies to premises to which a monitoring warrant

relates.

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 23

16 Horse Disease Response Levy Collection Bill 2011 No. , 2011

Securing equipment

(2) An authorised person may do whatever is necessary to secure any

electronic equipment that is on the premises if the authorised

person believes on reasonable grounds that:

(a) there is relevant data on the premises; and

(b) the relevant data may be accessible by operating the

equipment; and

(d) the relevant data may be destroyed, altered or otherwise

interfered with, if the authorised person does not take action

under this subsection.

The equipment may be secured by locking it up, placing a guard or

any other means.

(3)

Relevant data means information relevant to determining whether:

(a) the levy law has been, or is being, complied with; or

(b) information given under Division 1 or the regulations is

correct.

(4) The authorised person must give notice to the occupier of the

premises, or another person who apparently represents the

occupier, of:

(a) the authorised person's intention to secure the equipment;

and

(b) the fact that the equipment may be secured for up to 24

hours.

Period equipment may be secured

(5) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by the expert.

Note:

For compensation for damage to electronic equipment, see section 24.

Investigation Part 3

Monitoring by authorised persons Division 2

Section 24

Horse Disease Response Levy Collection Bill 2011 No. , 2011 17

Extensions

(6) The authorised person may apply to a magistrate for an extension

of the 24-hour period if the authorised person believes on

reasonable grounds that the equipment needs to be secured for

more than that period.

(7) Before making the application, the authorised person must give

notice to the occupier of the premises, or another person who

apparently represents the occupier, of his or her intention to apply

for an extension. The occupier or other person is entitled to be

heard in relation to that application.

(8) The provisions of this Division relating to the issue of monitoring

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(9) However, a magistrate may issue an extension only if he or she is

satisfied that it is not practicable for the expert to operate the

equipment to make any relevant data accessible within the period.

(10) The 24-hour period may be extended more than once.

24 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of electronic equipment being operated as

mentioned in this Division:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 25

18 Horse Disease Response Levy Collection Bill 2011 No. , 2011

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in a court of

competent jurisdiction for such reasonable amount of

compensation as the court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

Subdivision C--Occupier's rights and responsibilities

25 Occupier entitled to observe execution of warrant

(1) The occupier of premises to which a monitoring warrant relates, or

another person who apparently represents the occupier, is entitled

to observe the execution of the monitoring warrant if the occupier

or other person is present at the premises while the warrant is being

executed.

(2) The right to observe the execution of the warrant ceases if the

occupier or other person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.

26 Occupier to provide authorised person with facilities and

assistance

(1) The occupier of premises to which a monitoring warrant relates, or

another person who apparently represents the occupier, must

provide:

(a) an authorised person executing the warrant; and

(b) any person assisting the authorised person;

with all reasonable facilities and assistance for the effective

exercise of their powers.

Investigation Part 3

Monitoring by authorised persons Division 2

Section 27

Horse Disease Response Levy Collection Bill 2011 No. , 2011 19

(2) A person commits an offence if:

(a) the person is subject to subsection (1); and

(b) the person fails to comply with that subsection.

Penalty for contravention of this subsection: 30 penalty units.

Subdivision D--General provisions relating to seizure

27 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 this Division:

(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.

28 Receipts for seized things

(1) The authorised person must provide a receipt for a thing that is

seized under this Division.

(2) If 2 or more things are seized, they may be covered in the one

receipt.

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 29

20 Horse Disease Response Levy Collection Bill 2011 No. , 2011

29 Return of seized things

(1) The Secretary must take reasonable steps to return a thing seized

under this Division 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;

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

either the proceedings or any related appeal to a court has not

been completed; or

(b) the thing may continue to be retained because of an order

under section 30; or

(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).

Investigation Part 3

Monitoring by authorised persons Division 2

Section 30

Horse Disease Response Levy Collection Bill 2011 No. , 2011 21

30 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 this Division 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.

Order to retain thing

(3) 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.

(4) The period specified must not exceed 3 years.

31 Disposal of things

(1) The Secretary may dispose of a thing seized under this Division 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,

despite making reasonable efforts; or

(ii) the person has refused to take possession of the thing.

Part 3 Investigation

Division 2 Monitoring by authorised persons

Section 32

22 Horse Disease Response Levy Collection Bill 2011 No. , 2011

(2) The Secretary may dispose of the thing in such manner as the

Secretary thinks appropriate.

32 Compensation for acquisition of property

(1) If the operation of section 31 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 a

court of competent jurisdiction 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.

Subdivision E--Monitoring warrants

33 Monitoring warrants

Application for warrant

(1) An authorised person may apply to a magistrate for a warrant

under this section in relation to premises.

Issue of warrant

(2) The magistrate may issue the warrant if the magistrate is satisfied,

by information on oath or affirmation, that it is reasonably

necessary that one or more authorised persons should have access

to the premises for the purpose of determining whether:

(a) the levy law has been, or is being, complied with; or

Investigation Part 3

Monitoring by authorised persons Division 2

Section 34

Horse Disease Response Levy Collection Bill 2011 No. , 2011 23

(b) information given under Division 1 or the regulations is

correct.

(3) However, the magistrate must not issue the warrant unless the

applicant or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

Content of warrant

(4)

The

warrant

must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(d) authorise one or more authorised persons (whether or not

named in the warrant) from time to time while the warrant

remains in force:

(i) to enter the premises; and

(ii) to exercise the powers set out in this Division in relation

to the premises; and

(e) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

(f) specify the day (not more than 6 months after the issue of the

warrant) on which the warrant ceases to be in force.

Subdivision F--Powers of magistrates

34 Powers of magistrates

Powers conferred personally

(1) A power conferred on a magistrate by this Division is conferred on

the magistrate:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Regular review of levy Part 4

Section 35

Horse Disease Response Levy Collection Bill 2011 No. , 2011 25

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

Section 36

26 Horse Disease Response Levy Collection Bill 2011 No. , 2011

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);

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 paragraph 3 of Information

Privacy Principle 11 in section 14 of that Act 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.

Miscellaneous Part 5

Section 38

Horse Disease Response Levy Collection Bill 2011 No. , 2011 27

(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.

38 Identity cards for authorised persons

(1) The Secretary must issue an identity card to an authorised person.

(2) The identity card must:

(a) be in the form prescribed by the regulations; and

(b) contain a recent photograph of the person.

(3) A person commits an offence if:

(a) the person has been issued with an identity card; and

(b) the person ceases to be an authorised person; and

soon as practicable after ceasing.

Penalty: 1 penalty unit.

(4) An offence against subsection (3) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(5) Subsection (3) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the Criminal Code.

(6) An authorised person must carry his or her identity card at all times

when exercising powers as an authorised person.

Part 5 Miscellaneous

Section 39

28 Horse Disease Response Levy Collection Bill 2011 No. , 2011

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

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).

Commonwealth of Australia Bills

HORSE DISEASE RESPONSE LEVY COLLECTION BILL 2011