Cattle and Beef Levy Collection Act 1990 (Cth)

Cattle and Beef Levy Collection Act 1990

No. 143 of 1990

TABLE OF PROVISIONS

Section

1. Short title

2. Commencement

3. Interpretation

4. Act to bind Crown

5. When levy or charge due for payment

6. Liabilities of intermediaries

7. Liability of intermediaries—ancillary provisions

8. Penalty for non-payment

9. Remission of penalty

10. Recovery of levy, charge and other amounts

11. Refund of levy, charge etc.

12. Powers of authorised person in relation to premises

13. Warrant to enter premises

14. Retention and return of seized property

15. Identity cards

16. Power to require returns etc.

17. Offences in relation to returns etc.

18. Conduct of directors, servants and agents

19. Appointment of authorised persons

20. Reconsideration and review of remission decisions

21. Delegation by Secretary

22. Regulations

Cattle and Beef Levy Collection Act 1990

No. 143 of 1990

An Act to make provision for the collection of levies and

charges imposed under the Beef Production Levy Act 1990,

the Cattle Export Charge Act 1990 and the Cattle

Transaction Levy Act 1990,and for related purposes

[Assented to 28 December 1990]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title

1. This Act may be cited as the Cattle and Beef Levy Collection Act 1990.

Commencement

2. This Act commences on the day on which the Cattle Transaction Levy Act 1990 commences.

Interpretation

3.(1) In this Act, unless the contrary intention appears:

“associated distribution Act” means the Australian Meat and Live-stock Corporation Act 1977, the Australian Meat and Live-stock Research and

Development Corporation Act 1985 or the Live-stock Slaughter Levy Collection Act 1964;

“associated imposition Act” means the Beef Production Levy Act 1990, the Cattle Export Charge Act 1990 or the Cattle Transaction Levy Act 1990;

“authorised person” means a person who is, because of an appointment under section 19, an authorised person for the purposes of the provision in which the expression appears;

“buying agent” means a person who, in the course of carrying on a business, buys cattle or beef on behalf of another person;

“beef production levy” means levy imposed under the Beef Production Levy Act 1990;

“examinable documents” means any books or documents relating to:

(a) the production or processing of cattle; or

(b) the handling, storing, transporting or marketing of cattle or beef;

including, without limiting the generality of the foregoing, books or documents relating to financial dealings between any of the following persons:

(c) producers;

(d) selling agents;

(e) buying agents;

1. (f)

   exporting agents;

2. (g)

   feedlot operators;

(h) processors;

(j) persons who handle, store, transport or market cattle or beef;

(k) persons who deal with cattle by-products;

“export charge” means charge imposed under the Cattle Export Charge Act 1990;

“exporting agent” means a person who, in the course of carrying on a business, exports cattle from Australia on behalf of other persons;

“feedlot operator” means a person with control of premises where livestock are confined in watered and serviced yards, with no access to pasture or crops, for a period of more than 60 days, and fed a protein based feed the components of which are intended to facilitate efficient live-stock growth;

“intermediary”, in relation to a person primarily liable to pay an amount of levy or charge in respect of cattle or beef, means a person required, under subsection 6 (1), (2), (3), (4) or (5), to pay an amount on behalf of that person;

“levy” means beef production levy or transaction levy;

“magistrate” includes a Justice of the Peace;

“month” means a month of the year;

“premises” includes:

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

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

(c) a part of premises (including premises of the kind referred to in paragraph (a) or (b));

“Secretary” means the Secretary to the Department;

“selling agent” means a person who, in the course of carrying on a business, sells cattle or beef on behalf of other persons who are the owners of the cattle or beef;

“State” includes the Australian Capital Territory and the Northern Territory;

“this Act” includes the regulations;

“transaction levy” means levy imposed under the Cattle Transaction Levy Act 1990.

(2) A reference in this Act to a contravention of a provision of this Act includes a reference to an offence against section 6, 7 or 7a, or paragraph 86 (1) (a) of the Crimes Act 1914 that relates to that provision.

(3) Unless the contrary intention appears, a word or expression that is not defined for the purpose of this Act but that is defined for the purpose of an associated imposition Act has the same meaning in this Act as in the associated imposition Act.

Act to bind Crown

4. This Act binds the Crown in right of each of the States.

When levy or charge due for payment

5. Amounts of levy or charge are due for payment as required by the regulations.

Liabilities of intermediaries

6.(1) For better securing the payment of transaction levy, a selling agent who sells cattle on behalf of another person is liable to pay to the Commonwealth, on behalf of the owner of the cattle immediately before the sale, an amount equal to the sum of:

(a) the amount of any transaction levy due for payment on the cattle that remains unpaid by that owner; and

(b) any amount payable by that owner under subsection 8 (1) in relation to that levy.

(2) For better securing the payment of transaction levy, a processor or feedlot operator who buys cattle without the involvement of a selling agent is liable to pay to the Commonwealth, on behalf of the owner of the cattle immediately before the purchase, an amount equal to the sum of:

(a) the amount of any transaction levy due for payment on the cattle that remains unpaid by that owner; and

(b) any amount payable by that owner under subsection 8 (1) in relation to that levy.

(3) For better securing the payment of transaction levy on cattle delivered to a processor otherwise than by reason of a sale of the cattle to the processor, the processor is liable to pay to the Commonwealth, on behalf of the owner of the cattle immediately before the delivery, an amount equal to the sum of:

(a) the amount of any transaction levy due for payment on the cattle that remains unpaid by that owner; and

(b) any amount payable by that owner under subsection 8 (1) in relation to that levy.

(4) For better securing the payment of beef production levy on beef produced by a processor from cattle delivered to the processor otherwise than by reason of a sale of the cattle to the processor, the processor is liable to pay to the Commonwealth, on behalf of the owner of the cattle immediately after their hot carcase weight is, or is taken to be, determined, an amount equal to the sum of:

(a) the amount of any production levy due for payment on the cattle that remains unpaid by that owner; and

(b) any amount payable by that owner under subsection 8 (1) in relation to that levy.

(5) For better securing the payment of export charge on cattle exported from Australia, an exporting agent who exports the cattle on which the charge is imposed, on behalf of an exporter, is liable to pay to the Commonwealth, on behalf of the exporter, an amount equal to the sum of:

(a) the amount of any charge due for payment on the cattle that remains unpaid by the exporter; and

(b) any amount payable by the exporter under subsection 8 (1) in relation to that charge.

(6) Where an amount on account of levy or charge is paid by an intermediary under subsection (1), (2), (3), (4) or (5):

(a) the person primarily liable for the levy or charge is, to the extent of that amount, discharged from so much of his or her responsibility to the Commonwealth in relation to the cattle as has not previously been discharged under subsection 7 (2); and

(b) the intermediary may recover from the person primarily liable, by set-off or otherwise, an amount equal to the amount by which the first-mentioned amount exceeds the amount (if any) deducted by the intermediary under subsection 7 (1).

Liability of intermediaries—ancillary provisions

7. (1) Despite any law of a State or any agreement (whether entered into before or after the commencement of this Act) to the contrary, an intermediary referred to in subsection 6 (1), (2), (3), (4) or (5) may, for

the purpose of ensuring that the intermediary is provided with the funds necessary for the due payment by the intermediary of an amount equal to any unpaid levy or charge in relation to cattle on behalf of the person primarily liable for the levy or charge, deduct from any money received by the intermediary on behalf of the person so liable, or payable by the intermediary, in relation to the cattle, an amount equal to, or that may reasonably be expected to be equal to, the unpaid levy or charge.

(2) Where the intermediary deducts an amount under subsection (1), the person primarily liable is, upon the levy or charge becoming due for payment, discharged from liability to pay the levy or charge to the extent of the amount deducted, but the liability of the intermediary under subsection 6 (1), (2), (3), (4) or (5), as the case may be, is not affected.

(3) A processor may, despite any law of the Commonwealth or of a State or any contract entered into before or after the commencement of this Act, refuse to slaughter, or to permit the slaughter of, cattle unless the owner of the cattle at the time of their delivery to the abattoir concerned first provides the processor with the funds necessary for the due payment:

(a) on behalf of that owner—of an amount equal to any amount of the transaction levy payable in relation to those cattle; and

(b) on behalf of the person (not being the processor) who will be primarily liable for beef production levy payable in relation to the cattle—of an amount that may reasonably be expected to be equal to that beef production levy; and

(c) on behalf of that owner—of an amount equal to the amount of any levy for which that owner is primarily liable in respect of cattle previously slaughtered by the processor.

Penalty for non-payment

8. (1) If any levy or charge in relation to cattle or beef remains unpaid after the time when it became due for payment, there is payable to the Commonwealth by the person primarily liable for the levy or charge, by way of penalty accruing from the time the levy or charge became due for payment until it is paid in full, an amount worked out as follows:

(a) during the month in which the levy or charge became due for payment, the amount of penalty accrues at the rate of 2% per month on the levy or charge due; and

(b) during the next and each subsequent month, the amount of penalty consists of the sum of each amount that accrued during a previous month and the amount accruing during that month at the rate of 2% per month on the sum of the amount of levy or charge then payable and penalty payable at the end of the previous month.

(2) Where:

(a) an intermediary deducts an amount under subsection 7 (1) in relation to the unpaid levy or charge on any cattle or beef; and

(b) the intermediary does not pay the amount deducted to the Commonwealth, at or before the time when the levy or charge became due for payment;

there is payable to the Commonwealth by the intermediary, by way of penalty accruing from the time the levy or charge became due for payment until the amount deducted is paid to the Commonwealth, an amount worked out as follows:

(c) during the month in which the levy or charge became due for payment, the amount of penalty accrues at the rate of 2% per month on the amount deducted; and

(d) during the next and each subsequent month, the amount of penalty consists of the sum of each amount that accrued during a previous month and the amount accruing during that month at the rate of 2% per month on the sum of the unpaid amount deducted and penalty payable at the end of the previous month.

Remission of penalty

9.(1) Where an amount of penalty becomes payable under section 8 because an amount of levy or charge in respect of particular cattle or beef remains unpaid after the time when it becomes due for payment, the Minister or an authorised person may, subject to subsection (2), remit the whole or a part of that amount of penalty.

(2) An amount remitted by an authorised person under subsection (1) is not to exceed $2,000 or such lower amount as is specified in the authorisation.

Recovery of levy, charge and other amounts

10. The following amounts may be recovered by the Commonwealth as debts due to the Commonwealth:

(a) amounts of levy or charge that are due for payment;

(b) amounts payable under section 6;

(c) amounts payable under section 8.

Refund of levy, charge etc.

11.(1) Subject to subsection (2), where an amount referred to in section 10 has been overpaid, the amount overpaid must be refunded by the Commonwealth.

(2) Where, in purported compliance with an associated distribution Act, an amount equal to the amount overpaid has been paid to the Corporation, the Research and Development Corporation or the National Cattle Disease Eradication Trust Account, then:

(a) if the Commonwealth has not, under subsection (1), refunded

the amount overpaid—that amount must be refunded by the body, or out of the account, as the case may be; or

(b) if the Commonwealth has so refunded the amount payable— the Commonwealth is entitled to recover from the body or account, as the case may be, by set-off or otherwise, the amount so refunded.

Powers of authorised person in relation to premises

12.(1) An authorised person may, with the consent of the occupier of premises or in accordance with a warrant issued under section 13, enter the premises for the purpose of ascertaining whether a person has contravened or is contravening a provision of this Act or of the regulations.

(2) Where an authorised person enters any premises under subsection (1), the authorised person may:

(a) search the premises for, examine, and take stock of, any cattle or beef; and

(b) search the premises for, inspect, take extracts from, and make copies of, any examinable documents; and

(c) seize anything found in the course of the search that the authorised person believes, on reasonable grounds, will afford evidence of the contravention of a provision of this Act or of the regulations.

(3) A person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power conferred under subsection (1) or (2).

Penalty: Imprisonment for 6 months.

Warrant to enter premises

13.(1) If a magistrate, on application by an authorised person, is satisfied, by information on oath:

(a) that there are reasonable grounds for believing:

(i) that cattle are held or processed on particular premises; or

(ii) that beef is stored on particular premises; or

(iii) that there are examinable documents on particular premises; and

(b) that the issue of a warrant is reasonably required for the purpose of ascertaining whether a person has contravened or is contravening a provision of this Act or of the regulations;

the magistrate may issue a warrant authorising the authorised person to enter the premises:

(c) with such assistance, and by such force, as is necessary and reasonable; and

(d) during such hours as the warrant specifies or, if the warrant so specifies, at any time.

(2) A warrant must specify:

(a) the powers exercisable under subsection 12 (2) by the authorised person to whom the warrant is issued; and

(b) the day (not more than 14 days after the issue of the warrant) on which the warrant ceases to have effect.

Retention and return of seized property

14.(1) An authorised person may retain anything seized by the authorised person under section 12:

(a) for 60 days after seizure; or

(b) if proceedings in which the thing may afford evidence are commenced within that period, until the proceedings (including any appeal) are completed or terminated.

(2) The Minister may authorise anything seized under section 12 to be released to the owner, or to the person from whose possession the thing was seized, either unconditionally or on such conditions as are specified in the authority.

(3) Subsection (2) does not apply to anything while it is being held by a court as evidence in proceedings.

(4) Where anything seized is a book, record or document, the authorised person must, while the authorised person has possession of the book, record or document, allow it to be inspected at any reasonable time by a person who would be entitled to inspect it if it were not in the authorised person’s possession.

Identity cards

15.(1) The Secretary must cause an identity card to be issued to an authorised person.

(2) An identity card must:

(a) contain a recent photograph of the authorised person to whom it is issued; and

(b) be in a form approved, in writing, by the Secretary.

(3) Where a person to whom an identity card has been issued ceases to be an authorised person, the person must immediately return the identity card to a person occupying such office in the Department as is designated, in writing, by the Secretary.

(4) A person who, without reasonable excuse, contravenes subsection (3) is guilty of an offence.

Penalty: $100.

(5) Where an authorised person proposes to enter premises otherwise than in accordance with a warrant issued under section 13, the

authorised person must produce his or her identity card to the occupier of the premises for the occupier’s inspection and, if the authorised person fails to do so, the authorised person is not entitled to enter the premises under section 12.

Power to require returns etc.

16.(1) An authorised person may, by notice in writing given to a person, require the person:

(a) to give the authorised person, within such reasonable time as is specified in the notice, such return or information in relation to matters relevant to the operation of this Act as is specified in the notice; and

(b) to verify any such return or information by statutory declaration.

(2) If the ownership of cattle changes under a contract for the sale of an interest in real property inclusive of the cattle on that property but the contract does not specify the number of cattle sold, then, for the purpose of enabling the calculation of the amount of transaction levy payable by reason of the change of ownership, the person to whom ownership in the cattle has passed must:

(a) except in such circumstances as are specified in the regulations, prepare and give to a person specified in the regulations a statement of the number of cattle sold under the contract; and

(b) verify the information contained in that statement by statutory declaration.

Offences in relation to returns etc.

17.(1) A person must not, without reasonable excuse, refuse or fail to give a return or information that the person is required to give by or under this Act.

Penalty: $6,000.

(2) A person is not excused from submitting a return or information on the ground that the return or information might tend to incriminate the person, but any return or information given, and any information or thing (including any document) obtained as a direct or indirect consequence of the giving of the return or information, is not admissible in evidence against the person in:

(a) criminal proceedings other than proceedings for an offence against subsection (1) or (3); or

(b) proceedings for recovery of an amount payable by way of penalty under section 8.

(3) A person must not knowingly present a document, make a statement or give a return or information, that is false or misleading in a material particular, to a person performing duties under this Act.

Penalty: Imprisonment for 12 months.

Conduct of directors, servants and agents

18. (1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate by:

(a) a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or

(b) any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;

is taken, for the purposes of this Act, to have been engaged in also by the body corporate.

(3) Where it is necessary to establish, for the purposes of this Act, the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and

(b) that the servant or agent had the state of mind.

(4) Any conduct engaged in on behalf of a person other than a body corporate by:

(a) a servant or agent of the person within the scope of his or her actual or apparent authority; or

(b) any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;

is taken, for the purposes of this Act, to have been engaged in also by the first-mentioned person.

(5) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

(6) Where:

(a) a person other than a body corporate is convicted of an offence; and

(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

the person is not liable to be punished by imprisonment for the offence.

(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of an external Territory.

(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

Appointment of authorised persons

19. The Secretary may, in writing, appoint an officer of the Australian Public Service to be an authorised person for the purposes of a specified provision of this Act.

Reconsideration and review of remission decisions

20.(1) A person dissatisfied with a decision (in this section called a “remission decision”) to refuse to remit, under subsection 9 (1), the whole or a part of an amount of penalty may, by notice in writing given to the Minister, request the Minister to reconsider the decision.

(2) A request under subsection (1):

(a) must be made within 28 days after the day on which the remission decision to which the request relates first comes to the notice of the person making the request or within such further period as the Minister (either before or after the end of the period), by notice in writing served on the person, allows; and

(b) must set out the reasons for making the request.

(3) The Minister must, within 45 days after receiving a request under subsection (1), reconsider the remission decision and may make a decision:

(a) in substitution for the remission decision, whether in the same terms as the remission decision or not; or

(b) revoking the remission decision.

(4) Where, as a result of a reconsideration under subsection (3), the Minister makes a decision in substitution for or revoking a remission decision, the Minister must, by notice in writing served on the person who made the request under subsection (1) for the reconsideration, inform the person of the result of the reconsideration and give the reasons for his or her decision.

(5) An application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection (3).

(6) Where a person makes a remission decision and gives to a person affected by the decision notice in writing of the making of the decision, that notice must include a statement to the effect that a person affected by the decision:

(a) may, if the person is dissatisfied with the decision, seek a reconsideration of the decision in accordance with this section; and

(b) may, subject to the Administrative Appeals Tribunal Act 1975, if the person is dissatisfied with a decision made upon that reconsideration, make application to the Administrative Appeals Tribunal for review of that decision.

(7) Where the Minister makes a decision under subsection (3) and gives to a person affected by the decision notice in writing of the making of the decision, that notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person affected by the decision.

(8) A failure to comply with the requirements of subsection (6) or (7) in relation to a remission decision does not affect the validity of the decision.

Delegation by Secretary

21.(1) The Secretary may, in writing, delegate to the person occupying an office in the Department all or any of his or her powers under this Act other than his or her powers under section 19.

(2) A delegate is, in the exercise of a delegated power, subject to the directions of the Secretary.

Regulations

22.(1) The Governor-General may make regulations not inconsistent with this Act, 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 matters that may be prescribed under subsection (1) include, but are not limited to:

(a) making provision for the payment of levy or charge, of amounts on account of levy or charge and of other amounts payable to the Commonwealth under this Act; and

(b) requiring producers, processors, feedlot operators, exporters, selling agents and exporting agents, and any other persons prescribed, to make and keep accounts and other records in respect of cattle or beef dealt with by them; and

(c) requiring producers, processors, feedlot operators, exporters, selling agents and exporting agents, and any other persons prescribed, to give returns or information for the purposes of this Act; and

(d) requiring persons causing cattle to be slaughtered at an abattoir of which another person is the proprietor to give the proprietor returns or information relating to cattle so slaughtered; and

(e) providing for the keeping, by processors and feedlot operators, of records relating to cattle dealt with by them; and

(f) prescribing penalties not exceeding a fine of $3,000 for offences against the regulations.

[Minister’s second reading speech made in—

House of Representatives on 10 October 1990

Senate on 8 November 1990