Horticultural
Export Charge Collection Act 1987
No. 171 of 1987
An Act relating
to the collection of the charge imposed by the Horticultural Export Charge Act 1987
[Assented to 26 December 1987]
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 Horticultural Export Charge
Collection Act 1987.
Commencement
2. This Act shall come
into operation on the commencement of the Horticultural
Levy Act 1987.
Object
3. The object of this Act
is to make provision for the efficient and effective collection of the charge
imposed by the Horticultural Export
Charge Act 1987.
Interpretation
4. In this Act, unless the
contrary intention appears:
“authorised
person” means a person who is, by virtue of an appointment under section 18, an
authorised person for the purposes of the provision in which the expression
appears;
“chargeable
horticultural products” means horticultural products in a class of
horticultural products prescribed for the purposes of this definition;
“cut
flowers and foliage” includes processed cut flowers and foliage;
“examinable
documents” means any books or documents relating to:
(a)
the producing of chargeable horticultural products, whether by:
(i)
growing or harvesting; or
(ii)
processing the products or other products; or
(b)
the handling, storing, transporting, processing or marketing of chargeable
horticultural products;
including,
without limiting the generality of the foregoing, books or documents relating
to financial dealings between any of the following persons:
(c)
producers of chargeable horticultural products;
(d)
exporting agents;
(e)
persons who purchase chargeable horticultural products;
(f)
persons who handle, store, transport, process or market chargeable
horticultural products;
“exporting
agent” means a person who, in the course of carrying on a business, exports
products from Australia on behalf of other persons (whether or not the other
persons are the owners of the products);
“fruits”
includes processed fruits;
“horticultural
products” means:
(a)
fruits;
(b)
vegetables;
(c)
nuts;
(d)
nursery products;
(e)
cut flowers and foliage; and
(f)
products in a class of products prescribed for the purposes of this paragraph;
“magistrate”
includes a justice of the peace;
“nursery
products” includes trees, shrubs, plants, seeds, bulbs, corms, tubers,
propagating material and plant tissue cultures, grown for ornamental purposes
or for producing fruits, vegetables, nuts, or cut flowers or foliage;
“nuts”
includes processed nuts;
“order”
means an order made under the regulations;
“owner”,
in relation to chargeable horticultural products that are exported from
Australia, means the person who is the owner of the products at the time when
they are exported;
“prescribed”
includes prescribed by an order;
“process”,
in relation to a product, means the performance of any operation in relation to
the product, and includes the chilling, freezing, drying, bottling, packing,
canning or preserving of the product, but does not include the performance of
an operation included in a class of operations prescribed for the purposes of
this definition, either generally or in relation to the product or a class of
products in which the product is included;
“producer”,
in relation to a chargeable horticultural product, includes:
(a)
the person who grew the product;
(b)
the person who harvested the product if the person owned the product
immediately after harvesting; and
(c)
the person who produced the product by processing the product or another
product;
“product”
includes a thing occurring naturally;
“regulations”
includes orders;
“Secretary”
means the Secretary to the Department;
“this
Act” includes the regulations;
“vegetables”
includes:
(a)
mushrooms and other edible fungi; and
(b)
processed vegetables (including mushrooms and other edible fungi).
Act
binds Crown
5. (1) This Act binds the
Crown in right of each of the States, of the Northern Territory and of Norfolk
Island.
(2) Nothing in this Act
renders the Crown in right of a State, the Northern Territory or Norfolk Island
liable to be prosecuted for an offence.
When
charge due for payment
6. Amounts of charge are
due for payment as required by the regulations.
Liability
of exporting agents
7. (1) For better securing the
payment of charge, an exporting agent who exports from Australia chargeable
horticultural products on behalf of another person is liable to pay to the
Commonwealth, on behalf of the owner of the products, an amount equal to the sum
of:
(a)
the amount of any charge due for payment on the products that remains unpaid by
the owner; and
(b)
any amount payable by the owner under subsection 8 (1) in relation to that
charge.
(2) Notwithstanding any law
of a State or Territory or any agreement (whether entered into before or after
the commencement of this Act) to the contrary, the exporting agent may, for the
purpose of ensuring that the exporting agent is provided with the funds
necessary for the due payment by the exporting agent, on behalf of the owner,
of charge on the products, deduct from any money received by the exporting
agent on behalf of the owner or another person in relation to the products an
amount equal to, or that may reasonably be expected to be equal to, the unpaid
charge on the products.
(3) Where the exporting
agent deducts an amount under subsection (2), the owner is, on the charge
becoming due for payment, discharged from liability to pay the charge to the
extent of the amount deducted, but the liability of the exporting agent under subsection
(1) is not affected.
(4) Where an amount is
received by the Commonwealth from the exporting agent under subsection (1):
(a)
the owner is, to the extent of that amount, discharged from so much of his or
her liability to the Commonwealth in relation to the products as has not
previously been discharged under subsection (3); and
(b)
the exporting agent may recover from the owner, 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 exporting agent under subsection (2).
(5) The regulations may
provide that this section does not apply in relation to specified exporting
agents or specified classes of exporting agents.
Penalty
for non-payment
8. (1) If any charge in
relation to chargeable horticultural products remains unpaid after the time
when it became due for payment, there is payable by the owner of the products
to the Commonwealth, by way of penalty, an amount calculated at the rate of 20%
per annum on the amount unpaid, computed from that time.
(2) Where:
(a)
an exporting agent deducts an amount under subsection 7 (2) in relation to the
unpaid charge on any chargeable horticultural products; and
(b)
the exporting agent does not pay the amount deducted to the Commonwealth at or
before the time when the charge became due for payment;
there
is payable by the exporting agent to the Commonwealth, by way of penalty, an
amount calculated at the rate of 20% per annum on the unpaid amount deducted,
computed from that time.
Remission
of amounts
9. (1) Subject to subsection
(2), the Minister or an authorised person may remit the whole or a part of an
amount payable under section 8.
(2) An amount remitted by an
authorised person under subsection (1) may not exceed $500.
Recovery
of charge and other amounts
10. The following amounts
may be recovered by the Commonwealth as debts due to the Commonwealth:
(a)
amounts of charge that are due for payment;
(b)
amounts payable under subsection 7 (1);
(c)
amounts payable under section 8.
Refund
of charge
11. (1) Subject to subsections
(2) and (3), where any amount referred to in section 10 has been overpaid, the
amount overpaid shall be refunded by the Commonwealth.
(2) Where:
(a)
an amount would, but for this subsection, be refundable by the Commonwealth
under subsection (1); and
(b)
an amount equal to that amount has been paid to the Australian Horticultural
Corporation under subsection 48 (2) of the Australian
Horticultural Corporation Act 1987;
the
amount of the refund shall be paid by that Corporation.
(3) Where:
(a)
an amount would, but for this subsection, be refundable by the Commonwealth
under subsection (1); and
(b)
an amount equal to that amount has been paid to the Horticultural Research and
Development Corporation under subsection 46 (2) of the Horticultural Research and Development Corporation Act 1987;
the
amount of the refund shall be paid by that Corporation.
Powers
of authorised person in relation to premises
12. (1) An authorised person
may, with the consent of the occupier of the premises or in accordance with a
warrant issued under section 13, enter premises for the purpose of exercising
the powers of an authorised person under subsection (2).
(2) Where an authorised
person enters any premises under subsection (1), the authorised person may:
(a)
search for, examine and take stock of any chargeable horticultural products;
and
(b)
search for, inspect, take extracts from and make copies of any examinable
documents.
Warrant
to enter premises
13. (1) If a magistrate, on
application by an authorised person, is satisfied, by information on oath or
affirmation:
(a)
that there is reasonable ground for believing:
(i)
that chargeable horticultural products:
(a)
are produced on particular premises, whether by growing or harvesting the
products, or by processing the products or other products; or
(b)
are handled, stored or processed on particular premises;
(ii)
that goods produced from chargeable horticultural products are stored on
particular premises; or
(iii)
that there are examinable documents on particular premises; and
(b)
that the issue of the warrant is reasonably required for the purposes of this
Act;
the
magistrate may issue a warrant.
(2) The warrant authorises
the authorised person to enter the premises:
(a)
with such assistance, and by such force, as is necessary and reasonable; and
(b)
during such hours as the warrant specifies or, if the warrant so specifies, at
any time.
(3) The warrant shall
specify the period during which it remains in effect.
Identity
cards
14. (1) The Secretary may cause
an identity card to be issued to an authorised person.
(2) An identity card shall:
(a)
contain a photograph of the authorised person to whom it is issued; and
(b)
be in a form approved, in writing, by the Secretary.
(3) Where an authorised
person proposes to enter premises otherwise than in accordance with a warrant
issued under section 13, the authorised person shall 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 subsection 12 (1).
(4) Where a person to whom
an identity card has been issued ceases to be an authorised person, the person
shall forthwith return the identity card to a person occupying such office in
the Department as is designated, in writing, by the Secretary.
Penalty: $100.
Power
to require returns etc.
15. An authorised person
may, by notice in writing given to a person, require the person to submit to
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, including a return or
information verified by statutory declaration.
Offences
in relation to returns etc.
16. (1) A person shall not,
without reasonable excuse, refuse or fail to submit a return or information
that the person is required by or under this Act to submit.
(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
submitted, and any information or thing (including any document) obtained as a
direct or indirect consequence of the submitting of the return or information,
is not admissible in evidence against the person in:
(a)
criminal proceedings other than proceedings for an offence against sub-section
(1) or (3); or
(b)
proceedings for recovery of an amount payable by way of penalty under section
8.
(3) A person shall not
knowingly present a document, make a statement or submit a return or
information, that is false or misleading in a material particular, to a person
performing duties under this Act.
Penalty:
(a)
if the person is a natural person—$1,000 or imprisonment for 6 months, or both;
or
(b)
if the person is a body corporate—$5,000.
Conduct
of directors, servants and agents
17. (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;
shall
be deemed, 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;
shall
be deemed, 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.
Appointment
of authorised persons
18. The Secretary may, in
writing, appoint a person to be an authorised person, or persons in a class of
persons to be authorised persons, for the purposes of a specified provision of
this Act.
Review
of decisions
19. (1) Application may be made to the Administrative Appeals Tribunal
for review of a decision to refuse to remit under subsection 9 (1) the whole or
part of an amount.
(2) Where the Minister or
an authorised person makes a decision under sub-section 9 (1) and gives to the
person whose interests are affected by the decision notice in writing of the
decision, that notice shall include a statement to the effect that, subject to
the Administrative Appeals Tribunal Act
1975,application may be made to
the Administrative Appeals Tribunal, by or on behalf of any person whose
interests are affected by the decision, for review of the decision.
(3) A failure to comply
with the requirements of subsection (2) in relation to a decision does not
affect the validity of the decision.
Delegation
by Secretary
20. (1) The Secretary may, either generally or as otherwise provided by
the instrument of delegation, by writing, delegate to the person occupying an
office in the Department all or any of his or her powers under this Act, other
than this power of delegation.
(2) A power delegated under
subsection (1) shall, when exercised by the delegate, be deemed to have been
exercised by the Secretary.
(3) The delegate is, in the
exercise of a power delegated under subsection (1), subject to the directions
of the Secretary.
(4) The delegation of a
power under subsection (1) does not prevent the exercise of the power by the
Secretary.
Regulations
21. (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;
and,
in particular:
(c)
providing for the manner of payment of charge and other amounts payable to the
Commonwealth under this Act;
(d)
requiring producers or purchasers of chargeable horticultural products,
exporting agents, and such other persons as are prescribed for the purposes of
this paragraph, to make and keep accounts, accounting records and other records
in relation to chargeable horticultural products;
(e)
requiring producers or purchasers of chargeable horticultural products,
exporting agents, and such other persons as are prescribed for the purposes of
this paragraph, to provide returns or information for the purposes of this Act;
and
(f)
prescribing penalties not exceeding, in the case of a natural person, a fine of
$500 and, in the case of a body corporate, a fine of $2,500 for offences
against the regulations.
(2) Without limiting the
manner in which classes of chargeable horticultural products may be described
in the regulations, the regulations may describe such classes by reference to:
(a)
the use for which the products are exported or sold for export; or
(b)
the state, form or condition of the products, whether by reference to a process
or otherwise.
Orders
22. (1) Subject to subsection
(2), the regulations may make provision for or in relation to empowering the
Minister to make orders, not inconsistent with this Act, with respect to any
matter for or in relation to which provision may be made by the regulations.
(2) An order shall not be
made prescribing any penalty.
(3) Sections 48, 49, 49a and 50 of the Acts Interpretation Act 1901 apply in relation to orders as if
references to regulations were references to orders and references to an Act
were references to regulations.
(4) An order shall not be
taken to be a statutory rule within the meaning of the Statutory Rules Publication Act 1903, but sub-sections 5 (3) to (3c)
(inclusive) of that Act apply in relation to an order in like manner as they
apply in relation to a statutory rule.
(5) For the purposes of the
application of subsection 5 (3b)
of the Statutory Rules Publication Act
1903 in accordance with subsection (4), the reference in the
first-mentioned subsection to the Minister specified in that subsection shall
be read as a reference to a Minister administering this Act.
(6) An order shall be
deemed to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975.
[Minister’s
second reading speech made in—
House
of Representatives on 18 September 1987
Senate
on 17 November 1987