EXPLANATORY STATEMENT
Issued by the authority of the Parliamentary Secretary for Agriculture, Fisheries and Forestry
Quarantine Act 1908
Quarantine Service Fees Amendment Determination 2010 (No. 1)
Legislative Authority
Section 86E of the Quarantine Act 1908 (the Act) provides that the Minister may make determinations that require specified fees to be paid for, or in relation to, the doing of anything in connection with, inter alia, specified examinations, services or other quarantine measures carried out or provided under the Act, or for the management and maintenance of animals at a quarantine station in Australia.
Section 86E also provides that a determination may, in respect of the reservation of space for an animal at a quarantine station, or at a place approved under Section 46A, require the payment of a booking fee and/or a deposit.
The Quarantine Service Fees Determination 2005 (the Determination) sets out the fees that must be paid for specified services carried out, or provided by, the Australian Quarantine and Inspection Service (AQIS) under the Act. These services include caring for animals held in quarantine stations.
Background
The Quarantine Service Fees Amendment Determination 2009 (No. 2) (the 2009 Amendment Determination) was made on 27 July 2009 and commenced on 7 August 2009. The 2009 Amendment Determination introduced booking fees and deposits for the reservation of quarantine station space for certain animals. In particular, a new Section 7C was inserted to deal with the forfeiture of deposits made in relation to quarantine station reservations.
Section 7C provides the circumstances where the whole, or part of, a deposit paid in accordance with Section 7B is forfeited. Generally, a deposit is forfeited where an importer reserves space and fails to use it. The two triggers for forfeiture are contained in Subsection 7C(2) and relate to animals and to eggs from which chicks are to be hatched. The operation of Section 86E of the Act necessitated the separation of the forfeiture triggers.
The first trigger, which relates to reserved space for eggs for hatching, allows forfeiture of the deposit where the importer does not deliver any eggs for hatching to the quarantine station at the commencement of the period for which the space was reserved. The second trigger, relating to animals, allows forfeiture where an importer does not deliver an animal for the period for which the space was reserved, or an animal is not held in quarantine for at least 7 days of the reserved period.
The 2009 Amendment Determination was tabled in the Senate on 11 August 2009. On 20 August 2009 the Senate Standing Committee on Regulations & Ordinances (SSCRO) referred a query to the Minister for Agriculture, Fisheries and Forestry regarding the operation of Subsection 7C(5) of the Determination. Subsection 7C(5) provided that the Secretary of the Department of Agriculture, Fisheries & Forestry (DAFF) had the discretion to determine that part of a deposit under section 7C should be returned. Specifically, the SSCRO queried the lack of express guidance provided to the Secretary for the purpose of making a determination under Subsection 7C(5).
In response to the SSCRO query the Minister undertook to further amend the Determination to prescribe factors that would guide the Secretary of DAFF when exercising the discretion given by Section 7C(5). DAFF then developed an internal policy to guide the exercise of discretion under Subsection 7C(5), until such time that relevant legislative amendments could be made.
Purpose and impact
The amendments have two purposes.
Firstly, the amendments make it clear that the Secretary may return not only part of a deposit made for a booking fee that is required under Section 7A of the Determination, but the whole any such deposit.
Secondly, the amendments set out the matters to which the Secretary must have regard when making a determination to return part, or the whole of, a deposit.
The amendments give effect to the undertaking that was given to the SSCRO by the Minister in 2009, and effectively enact the policy developed by DAFF following the SSCRO’s query.
Consultation
The Office of Best Practice Regulation determined that the amendments would have a low impact on business, and would impose no or low compliance costs. Consequently no consultation was required for the amendments.
Operation
Details of the Amendment Determination are set out below.
Section 1 provides that the name of the Amendment Determination is the Quarantine Service Fees Amendment Determination 2010 (No.1).
Section 2 provides that the Amendment Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 provides that Schedule 1 amends the Quarantine Service Fees Determination 2005.
Schedule 1 Amendments
Item 1 omits ‘, despite a circumstance set out in subsection (2),’ from Subsection 7C(5) and inserts ‘the whole or a’ in its place.
Previously, Subsection 7C(5) provided that the Secretary had a discretion to determine that only part of a deposit should be returned, despite the existence of either of the two triggers set out in Subsection 7C(2). The amendment results in Subsection 7C(5) applying where the Secretary determines that the whole or a part of a deposit should be returned.
The amendment also removes unnecessary language from subsection 7C(5) by omitting ‘despite a circumstance set out in subsection (2)’. These words were considered unnecessary on the basis that a determination under Subsection 7C(5) is only ever exercisable despite the existence of a circumstance described in Subsection 7C(2), as it is the existence of any such circumstance which triggers the forfeiture provision in the first place.
Item 2 inserts Subsections 7C(5A) and (5B) after Subsection 7C(5).
Subsection 7C(5A) provides that the Secretary must have regard to the matters set out in Subsection 7C(5B) when making a decision under Subsection 7C(5) as to:
(i) whether the whole or only part of a deposit should be returned; and
(ii) if only part of a deposit should be returned, precisely what part of that deposit is returned.
Subsection 7C(5B) sets out several matters to which the Secretary must have regard in making a decision under Subsection 7C(5). The subsection clearly sets out the decision-making process that the Secretary must undertake and reflects the policy that DAFF has implemented since September 2009.
The first matter that the Secretary must consider is captured in Subparagraph 7C(5B)(a). This subparagraph provides that the Secretary must consider whether the importation of the animal or egg into Australia was frustrated by the outbreak of a pest or disease in the country from which the animal or egg was, or was to be, imported. This may occur where, for instance, an importer decides not to proceed with importation into Australia because the importer considers there to be health risks involved (notwithstanding that the importation may be permitted by Australian authorities). However, the importation would not be considered frustrated where an importer simply changes their mind and decides not to import into Australia.
The second matter that the Secretary must consider is captured in Subparagraph 7C(5B)(b). This subparagraph provides that the Secretary must consider whether the space reserved for the animal or egg at the quarantine station became unavailable because:
(i) another animal or egg was required to be held in the space; or
(ii) the facilities at the station became inoperable (for example, because of damage to the facilities).
The third matter that the Secretary must consider is captured in Subparagraph 7C(5B)(c). This subparagraph provides that the Secretary must consider whether the animal or egg is no longer required under the Act to be taken to, or detained at, the quarantine station. This would include the situation where a direction to hold an animal or egg at a quarantine station has been issued under the Act and then subsequently revoked.
The fourth matter that the Secretary must consider is captured in Subparagraph 7C(5B)(d). This subparagraph provides that the Secretary must consider whether the importer of the animal or egg has arranged for the reservation of a space at a quarantine station to be transferred to another importer of an animal or egg.
The fifth matter that the Secretary must consider is captured in Subparagraph 7C(5B)(e). This subparagraph provides that the Secretary must consider the extent to which a relevant circumstance set out in subsection (2) was within the control of the person who paid the deposit. In other words, the Secretary must consider the level of an importer’s responsibility in:
(i) delaying the arrival of an egg (from which a chick is to be hatched) at a quarantine station, or
(ii) causing an animal not to stay in quarantine at a quarantine station for at least 7 days of the period for which a space was reserved.
The sixth matter that the Secretary must consider is captured in Subparagraph 7C(5B)(f). This subparagraph is in line with the Commonwealth’s cost recovery principles and provides that the Secretary must consider the extent to which a decision under subsection 7C(5) would affect the Commonwealth’s recovery of its costs in relation to the reservation of the space.
The seventh matter that the Secretary must consider is captured in Subparagraph 7C(5B)(g). This paragraph provides that the Secretary must consider any other matter that the Secretary considers relevant when making a decision. This enables the Secretary to consider pertinent issues which might arise on discrete occasions, but which do not fall within the scope of Subparagraphs 7C(5B)(a) to (f).
Item 3 inserts the sentence ‘If the Secretary determines that the whole of the deposit should be returned, no part of the deposit is forfeited’ after ‘…should be returned.’ in Subsection 7C(6).
In the event that the Secretary determines that only part of a deposit should be returned, Subsection 7C(6) provides that the part of the deposit which is forfeited is worked out by subtracting the part of the deposit that the Secretary decides should be returned from the total amount of the deposit. The subsection further provides that if the Secretary determines that the whole of the deposit should be returned, no part of the deposit is forfeited. The amendment expands the scope of the previous Subsection 7C(6) to deal with the situation where the Secretary decides to return the whole deposit, and is consequential to the substitution of a new Subsection 7C(5).