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1998 – 1999 -
2000
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
DAIRY
INDUSTRY ADJUSTMENT BILL 2000
REVISED
EXPLANATORY MEMORANDUM
(Circulated by
Authority of the Minister for Agriculture, Fisheries and Forestry,
the Hon
Warren Truss MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE
BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
ISBN: 0642 429995
DAIRY INDUSTRY ADJUSTMENT BILL
2000
GENERAL OUTLINE
1. The Dairy
Industry Adjustment Bill 2000 provides the framework for implementation of
the Dairy Industry Adjustment Program. The main object of the Dairy Industry
Adjustment Program is to assist the dairy industry to adjust to deregulation by
providing for dairy structural adjustment payments (made under this Schedule)
and dairy exit payments (made under Part 9C of the Farm Household
Support Act 1992).
FINANCIAL IMPACT
STATEMENT
2. The proposed Dairy Adjustment Levy (General) Bill
2000, Dairy Adjustment Levy (Excise) Bill 2000, and Dairy
Adjustment Levy (Customs) Bill 2000 provide for the imposition of the Dairy
Adjustment Levy. This levy will generate sufficient Commonwealth revenue to pay
for the Dairy Industry Adjustment Program, raising $1.74 billion over a target
period of eight years. All money raised will be used to fund the Dairy Industry
Adjustment Package, including the cost of collecting the
levy.
3. Commonwealth revenue may decrease by up to $1 million per year
for each of the eight years of the program as a result of providing some of the
assistance through non-taxable exit grants rather than structural adjustment
assistance. This aside, the package has no budgetary impact as it is fully
funded by levy revenue.
Background
4. The dairy industry is Australia’s
fourth largest agricultural exporter, selling up to one half of its milk output
in world markets, at a value of $2.2 billion. The industry has an annual Gross
Value of Production (GVP), ex factory, of around $7 billion and provides
employment for over 50,000 people, principally in rural and regional
Australia.
5. The industry regulatory environment can be divided into two
broad categories based on whether milk is used as liquid milk for human
consumption (market milk) or in the manufacture of dairy products (manufacturing
milk). Manufacturing milk arrangements are currently underpinned by
Commonwealth legislation. It provides for the operation of the Domestic Market
Support (DMS) scheme, which assists producers of manufacturing milk through
monthly payments (currently 0.95 cents per litre in 1999-2000) and is funded by
a transfer from Australian consumers of dairy products. The DMS scheme is
legislated under the Dairy Produce Act 1986 to end on 1 July
2000.
6. Market milk arrangements are underpinned by state legislation
and provide a guaranteed producer price for milk used as market milk that is
about double the producer price for manufacturing milk. The mechanisms for
guaranteeing this premium vary between each State and Territory. Separate quota
arrangements operate in New South Wales, Queensland and Western Australia while
Victoria, South Australia and Tasmania operate different schemes which provide
for equitable sourcing and payment for market milk.
7. Victoria is the
largest milk producing state in Australia, accounting for over 60 per cent of
Australian milk output. Given this dominance, deregulation in Victoria will have
significant flow-on effects in other states. The expectation is that all
markets will eventually move into parity with Victoria, with some premiums
remaining to reflect transport costs and other local supply advantages.
Nature and Extent of the Problem
8. Dairy industry
deregulation is expected to precipitate a significant change in the operating
environment for most Australian dairy farmers. Given the levels of assistance
which are currently generated through Commonwealth and State regulatory
arrangements, full deregulation is expected to initially result in substantial
losses in farm income and a significant level of industry dislocation. There is
a risk that if industry deregulation was to take place in a disorderly manner,
the resulting economic shock will cause significant economic losses due to the
unnecessary exit of dairy farmers out of the industry. The exit and subsequent
re-entry of dairy farmers is not costless due to the associated transactions
costs and impediments to the mobility of capital and labour throughout the
economy. In cases where existing farmers are efficient over the medium to long
term, these costs would translate to an overall loss to society.
9. More
widely, deregulation is likely to have a negative effect on some regional
businesses and ancillary industries. Dairy farming involves the daily use of
many and varied business inputs. This activity has significant multiplier
effects throughout local regional economies. The loss of farm income may
translate into a reduction in economic activity in that region. The impact on
rural economies would be exacerbated if manufacturing and processing plants
located in regional centres cease their operations because they are no longer
viable. Further, the cost efficiencies associated with such large-scale
operations may be lost if adequate milk supplies are not available due to farmer
dislocation.
10. In essence, there is the possibility that significant
proportions of long-term benefits of deregulation may be lost if short-term
adjustment costs are unduly high.
Objectives
11. The broad
regulatory objective is to facilitate coordinated and orderly structural
adjustment in the dairy industry so as to maximise the long-term benefits of
deregulation while minimising the short-term costs of moving to a less regulated
environment. This includes minimising the exit of farmers from the industry who
would otherwise be efficient producers in the long term.
12. Any
regulatory solution should be consistent with Australia’s international
trade obligations. A regulatory solution should also be consistent with the
principles of the National Competition
Policy.
Options
13. There are many types of measures that
could be considered to assist industries through the process of structural
adjustment. Some key parameters considered in addressing the issues facing the
dairy industry are that any option should:
- be targeted and
transparent;
- be consistent with Australia’s international trade
obligations;
- be well developed and generally acceptable to most
stakeholders;
- consider the timeframe and magnitude of the option;
and
- consider how the option would be funded.
14. After an intensive
consultation process, dairy industry leaders through the Australian Dairy
Industry Council (ADIC) considered the following options:
- retaining the
current Commonwealth and State regulatory framework;
- creating a national
market milk pool;
- creating an eastern states market milk
pool;
- creating a system of notional swaps between State dairy industry
authorities;
- implementing a phased removal in state market milk
arrangements (phased implementation of reforms);
- implementing a modified
DMS scheme with the scheme funded by a market milk levy only; and
- full
deregulation.
15. Coming out of this process, only full deregulation was
considered by the ADIC as feasible in the light of competitive commercial
pressures in the global and domestic dairy industry and the need to take account
of Australia’s international trade obligations.
16. Within the
option of full deregulation, two possible courses of action were
identified:
a) allowing deregulation to occur in an unmanaged, piecemeal
fashion; or
b) provision of an adjustment package which will assist the dairy
industry through the process of deregulation.
17. Allowing deregulation
to occur in an unmanaged piecemeal fashion was not considered viable, as it
would bring about severe dislocation of the dairy industry and adverse impacts
at the regional level.
18. As a consequence, the ADIC put forward for
Government consideration an industry agreed proposal aimed at assisting farmers
deal with the impacts of deregulation in a positive and orderly way. In
response to this proposal, on 28 September 1999 the Federal Government announced
its willingness to provide a major structural adjustment package for dairy
farmers in the event that all States and Territories decided to remove their
market milk farmgate pricing arrangements. The total package, estimated to cost
up to $1.74 billion, provides eligible dairy farmers with quarterly adjustment
payments over 8 years, or the option of up to a $45,000 tax free exit payment in
the first two years of the program, where a farmer wishes to leaving
farming.
19. It is envisaged that payments to producers under the package
would be used in whatever investment considered most appropriate to enhance
viability and competitiveness of the enterprise. This may take the form of
investments to achieve scale economies, relocation or debt restructuring. As a
result of the package, it is anticipated that a greater number of farmers will
be able to negotiate the transition to a deregulated environment and to
re-establish themselves as viable enterprises. Alternatively, where farmers
believe exit to be the best option, the payments will provide the farmer with
the means to assist to clear debts and exit the industry to undertake more
viable economic activities. A pre-requisite for receiving any payments is that
farmers must prepare a farm business assessment.
20. Payments to farmers
are to be administered by an independent statutory body known as the Dairy
Adjustment Authority (DAA). The DAA will receive administrative support from
the Australian Dairy Corporation (ADC), but retain full independence in its
decision making and accountability.
21. A key feature of the adjustment
package is that it is to be funded from a Commonwealth levy on sales of liquid
milk products over a target period of up to 8 years. The levy is to be imposed
at retail with collection by milk processors.
Impact
Analysis
22. Over the longer term, the benefits from deregulation are
likely to be significant as those operators remaining in the industry gain
through increased economies of scale and increased demand for dairy products
(generated through lower prices). The consequent improved production
efficiencies (at both the producer and processor levels) are also expected to
improve the competitiveness of the industry in both domestic and international
markets. However, as mentioned previously, full deregulation is expected to
initially result in significant reductions in farm incomes with some
consequential level of industry dislocation.
23. The key stakeholders
likely to be affected by deregulation
are:
(a) Farmers
24. There are over 13,000 dairy farmers in
Australia. The vast majority of farmers are expected to experience a fall in
income upon deregulation as they will no longer receive either the premium on
market milk generated through state arrangements, or a market support payment on
manufacturing milk under the DMS scheme.
25. In terms of manufacturing
milk, producers will lose the market support payment (0.95 cents per litre in
1999-2000). Given the period in which the Australian dairy industry has
operated under the certainty of regulation, the extent to which the producer
price for market milk will fall upon deregulation is a matter of conjecture.
Projections of the price falls vary from 10 cents per litre (around 19 per cent
of the current producer price for market milk) up to 25 cents per litre (48 per
cent). Taking the mid range between these projections (at 15 cents per litre),
ABARE estimates that the impact of deregulation would be an average annual per
farm fall in income of $28,350.
26. The package is designed to assist
farmers adjust to this fall in income and, in so doing, secure the long-term
benefits of deregulation. This will be achieved by providing payments that will
allow farmers to either undertake structural improvements or, alternatively,
leave the industry.
27. To encourage effective use of the assistance,
each farmer will be required to undertake a farm business assessment prior to
receiving any payments. It is intended that, through an assessment of the farm
enterprise, the information available to farmers for making appropriate
investment decisions is maximised. Furthermore, an exit component is being
incorporated into the package to better target those farmers who arrive at the
conclusion they will be non-viable in a deregulated market and should leave the
industry. The broad thrust of the exit component is to provide these farmers
with sufficient funds to facilitate their exit from the industry.
(b) Manufacturers, Processors and Exporters
28. There are
between 15 and 20 firms involved in the manufacturing of dairy products and
processing of fresh milk in Australia. A number of these firms are farmer owned
co-operatives although there are also a number of publicly owned companies.
Australia also has many small manufacturing operations, mainly producing
specialty cheeses.
29. Deregulation offers significant benefits for
manufacturers and processors. Milk represents an input cost for processors and
manufacturers. Consequently, this sector of the dairy industry is expected to
benefit directly from lower input prices. Processors will no longer be subject
to a complex set of regulations governing the purchase of fresh milk for human
consumption from State dairy industry authorities. Manufacturers will also not
be required to pay the manufacturing milk levy imposed under the
Commonwealth’s DMS scheme nor will they be involved in the dispersal of
market support payments to manufacturing milk producers.
30. It is also
anticipated that deregulation will encourage acquisitions, mergers and strategic
alliances within the manufacturing and processing sectors. This would be due to
firms seeking to secure sufficient equity capital to improve the efficiency of
their operations through the establishment and operation of large scale,
cost-efficient dairy factories with good distribution networks and successful
marketing strategies.
31. At the same time, deregulation may create
problems if the short-term dislocation of the dairy industry causes disruptions
in milk supply. This may precipitate further restructuring and rationalisation
within the processing and manufacturing sector as firms relocate from marginal
milk producing areas to more suitable regions or merge with other firms in the
search for increased scale and production efficiencies.
32. While there
are specialist exporters, Australia’s larger manufacturers are the main
exporters of dairy produce. Dairy exports have grown considerably over the past
decade with up to half of Australia’s milk output sold in international
markets, at a value of over $2 billion. Having expended significant resources to
establish these markets, it is crucial that Australian exporters maintain and
expand these markets by ensuring a reliable supply of Australian dairy produce
at internationally competitive prices.
(c) Wholesalers and
Retailers
33. It is anticipated that wholesalers and retailers will
benefit from the flow on effects of lower input prices for liquid milk products
and, with the abolition of the manufacturing milk levy, lower prices for dairy
products. These benefits will be partially offset by the imposition of the levy
required to fund the adjustment package.
(d) Consumers
34. Commonwealth and State regulatory arrangements currently generate
monetary transfers of over $500 million annually from Australian consumers.
Accordingly, it is believed deregulation will eventually provide substantive
benefits to consumers.
35. However, the extent to which lower prices are
realised will depend on the power of processors and retailers to increase
margins, and the level of competition for milk sales.
(e) Commonwealth
and State Governments
36. The Commonwealth and State governments have
regulatory arrangements that influence the farm gate pricing of milk. These
arrangements vary between States, are complex to administer and require
significant resources. Deregulation will enable administrative resources to be
reduced, particularly in the long term.
37. Under the proposed package, it is estimated that the national average
payment will be $118,192 per farm (table 1). Levels of payments to individuals
will vary between States (table 1). For example, the average in Victoria is
expected to be $95,000 while in Western Australia it is expected to average
$240,000.
38. Again, it must be understood that each State will experience diversity
within these averages reflecting the varying level of impact deregulation will
have on individual entities. These estimates represent the sum of payments to
farmers over the eight years and do not take account of payments through the
dairy exit component of the package.
39. It is envisaged that, through
these payments, any sharp downturn in milk output will be avoided in the short
term and production will progressively shift to a more efficient, lower cost
regime across Australia. Avoiding a short-term downturn in production will
allow manufacturers and processors to maintain their competitiveness through
continuing to operate large scale, cost efficient plant. It also ensures
sufficient dairy produce to service growing export markets. Deregulation should
assist growth of exports in the longer term as it will lead to better use of
resources through a more efficient scale of operation with a lower cost of
production.
Table 1: Indicative estimates of adjustment payments
|
Current Farm Income
|
Annual fall in income (a)
|
Adjustment payment (b)
|
|
|
|
|
|
$ per farm
|
$ per farm
|
$ per farm
|
New South Wales
|
83,510
|
-46,210
|
169,408
|
North Coast
|
49,450
|
-32,760
|
-
|
Central/South Coast
|
107,840
|
-55,290
|
-
|
Riverina
|
100,070
|
-54,740
|
-
|
Victoria
|
44,690
|
-21,590
|
95,061
|
Western Districts
|
39,840
|
-16,270
|
-
|
Goulburn Murray
|
45,000
|
-23,370
|
-
|
Gippsland
|
43,270
|
-17,890
|
-
|
Other Victoria
|
61,010
|
-24,020
|
-
|
Queensland
|
56,470
|
-32,940
|
123,914
|
South Australia
|
55,520
|
-31,550
|
160,159
|
Western Australia
|
89,510
|
-53,500
|
237,254
|
Perth Metropolitan
|
103,480
|
-66,890
|
-
|
South-West
|
77,160
|
-41,650
|
-
|
Tasmania
|
58,300
|
-22,230
|
100,315
|
AUSTRALIA
|
53,740
|
-28,350
|
118,192
|
(a) Source: ABARE.
(b) Source: ADC using ABARE 1997/98 farm numbers.
40. The adjustment package is to be financed through a levy of 11 cents per litre on sales of liquid milk products. In terms of the levy imposition, consideration has been given to an appropriate point of imposition to ensure that the burden is not passed back to the producer, whilst ensuring efficient levy collection. The levy is to be on cow’s milk and will broadly cover wholemilk, modified milk, Ultra Heat Treated (UHT) and flavoured milk. The levy will be applied on a cents per litre basis at the retail level, however, collection would be at the processor level for convenience, efficiency and security. As there are far fewer processors than retailers, collecting the levy from processor minimises the number of collection points. As a result, the administrative burden and costs of levy imposition are reduced and there is greater scope for ensuring compliance. The imposition of one flat levy on liquid milk sales is expected to be significantly less complex than the five levies which exist under the current DMS scheme.
41. A levy, set at of 11 cents per litre, is calculated to cover the total
cost of payments to producers plus interest and administration costs (estimated
to be $1.74 billion) over a target period of 8 years. At the same time, a levy
of 11 cents per litre should be sufficiently low enough in order to minimise any
potential impact on the market place, in terms of market milk sales and retail
prices.
(i) Impacts on Consumers
42. Given the comparative
unresponsiveness of market milk demand to changing prices, it is likely that the
levy used to fund the adjustment package will be passed onto consumers. The
size of the consumer transfer, based on a 11 cents per litre levy, will be $1.74
billion, or, on average, around $218 million annually. However, consumers are
still expected to be better off under the package than under the current
situation where Commonwealth and State regulatory arrangements provide for
monetary transfers of over $500 million annually from consumers.
(ii)
Impacts on Government
43. The proposed adjustment package is intended
to largely obviate the need for direct budgetary support for the dairy industry.
It is also consistent with the Government’s microeconomic reform agenda in
that it allows the dairy industry to take greater control of its own affairs,
and significantly reduces the role of government in the industry. The proposed
package also provides a path for ensuring that the dairy policies of all
governments remain consistent with the principles of National Competition
Policy. The full deregulation of the dairy industry is also consistent with
Australia’s trade position in the World Trade Organisation.
44. However, the Government will still have a role in managing the
statutory levy arrangements required for the proposed adjustment
package.
45. As mentioned previously, deregulation will involve State government
decisions to remove regulation that currently impacts on the Australian dairy
industry.
46. It involves the repeal of all or substantial parts of
the:
Dairy Industry Act 1979 (New South Wales)
Dairy
Industry Act 1992 (Victoria)
Dairy Industry Act 1993
(Queensland)
Dairy Industry Act 1992 (South
Australia)
Dairy Industry Act 1983 (Western Australia)
Dairy
Industry Act 1994 (Tasmania)
47. Deregulation will also
significantly curtail or eliminate the need for state dairy industry
authorities, thereby providing direct savings for the dairy industry, who fund
these organisations through a margin on the price for market milk. As an
indication of the potential savings, in 1997-98, the New South Wales Dairy
Corporation and Victorian Dairy Industry Authority had total annual operating
expenses of $12.1 million and $6.45 million respectively, however the actual
savings to be realised from deregulation within these overall expenses cannot be
estimated.
48. At a Commonwealth level, Part VII, Division 5 of the
Dairy Produce Act 1986 and relevant parts of Schedule 6 of the Primary
Industry (Excise) Levies Act 1998 and Schedule 4 of the Primary Industry
(Customs) Levies Act 1998 would cease to operate with the end of the DMS
scheme. There will also no longer be a need to collect the market milk levy,
manufacturing milk, import offset, acquisition offset levy and the levy on the
re-importation of exported dairy produce. This has required a complex web of
legislation, statutory rules and Gazette notices to cover the collection of the
levies and operation of the DMS scheme. There has been a significant commitment
of resources in dealing with legislative and policy issues relating to levy
imposition, compliance and the payment of market support
payments.
49. Furthermore, the Australian Dairy Corporation undertakes
the day to day administration of the DMS scheme, on behalf of the Commonwealth.
The costs of activities of the Corporation are met from the levy receipts. In
1997-98, the Corporation’s operating expenses in administering the DMS
scheme were around $1.2 million.
Conclusions
50. Allowing
deregulation to occur without adjustment assistance would result in greater
dislocation of the dairy industry and more severe impacts at a regional level.
Economic losses would otherwise arise due to the unnecessary exit of some dairy
farmers out of the industry. The exit and subsequent re-entry of dairy farmers
is not costless due to the associated transaction costs and impediments to the
mobility of capital and labour throughout the economy. In cases where existing
farmers would probably be viable in the medium term, these costs translate to
overall loss to the community.
51. The implementation of an adjustment
package based on the ADIC proposal is, in the Government’s view, necessary
to ensure the benefits of deregulation are
realised.
Consultation
52. The Australian Dairy Industry
Council (ADIC), the proponent of the adjustment package, is responsible for
general policy development and co-ordination of dairy industry matters at a
national level. ADIC represents all sectors of the dairy industry with
representatives drawn from the Australian Dairy Farmers’ Federation (milk
producers) and the Australian Dairy Products Federation (manufacturers and
processors). It represents over 80 per cent of Australia’s dairy farmers
and the vast majority of manufacturers, and is recognised as the peak industry
body. In addition, the Victorian Government held a plebiscite of the State's
dairy farmers which resulted in resounding support for deregulation, and early
returns on a poll being undertaken of New South Wales farmers indicates support
for deregulation.
53. The coordinated deregulation of the dairy industry
and the associated adjustment package was discussed by Commonwealth and State
Agricultural Ministers in March and August 1999 meetings and more recently at a
special meeting on 22 December 1999.
Implementation and
Review
54. For the package to be fully implemented, State governments
are required to repeal those parts of their legislation that embodies the
current market milk arrangements. The agreement of State Minsters for
Agriculture to the package is being sought, including their commitment to amend
or repeal relevant state legislation.
55. The Government wishes to see
amending Commonwealth legislation receive the earliest passage through
Parliament to enable the scheme to be in place to pay eligible producers as soon
as possible after 1 July 2000.
56. The collection and dispersal of the
levy on fresh milk sales will be managed by the Levy Revenue Services (LRS)
within AFFA. They have the procedures in place for determining levy liability,
ensuring compliance, collecting and dispersing levies. They also have mechanism
for reviewing all aspects of levy collection.
57. The ADC’s role
in providing administrative support will be reviewed by the DAA in 2001/2002.
The overall arrangements will be reviewed by the DAA in 2002/2003.
NOTES ON CLAUSES
Clause 1 Short
title
58. The Act will be called the Dairy Industry Adjustment Act
2000.
Clause 2 Commencement
59. The Act will commence
on Royal Assent. Payments under the Dairy Structural Adjustment Program (DSAP)
scheme will commence on a day to be fixed by Proclamation.
Clause 3
Schedule(s)
60. Clause 3 provides that the amendments or the repeal
of Acts specified in the Schedule to the Bill and any other Item in the Schedule
will have effect according to the terms of that Item. Schedule 1 provides for
the amendment of the Dairy Produce Act 1986, including the establishment
of the Dairy Industry Adjustment Program. Schedule 2 provides for consequential
amendment of a number of other Acts to enable effective implementation of the
Dairy Industry Adjustment Program.
SCHEDULE 1 – AMENDMENT OF THE DAIRY PRODUCE
ACT 1986
Part 1 – Amendments
61. Item 1 is a technical provision to amend the long title of the Dairy Produce Act 1986 to allow for provision of the Dairy Industry Adjustment Program in the Dairy Produce Act 1986.
62. Item 2 provides for Schedule 2 to be excluded from the definition of
an authorised person as it has its own definition (see clause 86), which
differs from that applied to the rest of the Dairy Produce Act
1986.
63. Item 3 provides for a definition of the Dairy Structural
Adjustment Fund to be added to the definitions applicable to this
Act.
64. Item 4 makes clear that the Dairy Structural Adjustment
Fund is not part of the money of the Corporation.
65. Item 5 renames
the current Schedule in the Dairy Produce Act 1986 as Schedule 1 to
reflect the new schedule (Schedule 2) to be added to the Act.
66. Item 6
provides that the money of the Corporation will not be used to pay the expenses
of the Dairy Industry Adjustment Program.
67. Item 7 is related to the
amendment proposed under Item 2. Specifically, it provides that an
authorised person under the Dairy Produce Act 1986 (but not
Schedule 2) does not have the power to call for returns in relation to the Dairy
Industry Adjustment Program (which has its own definition of an authorised
person).
68. Item 8 provides for Schedule 2 to be excluded from this
section as the Dairy Industry Adjustment Program has its own offence provisions
in relation to claims for payments (refer Part 5 of Schedule 2).
69. Item
9 provides for Schedule 2 to be excluded from this section as the Dairy Industry
Adjustment Program has its own offence provisions in relation to returns (refer
Division 8 of Part 4).
70. Item 10 provides for Schedule 2 to be excluded
from this section as the Dairy Industry Adjustment Program has its own
provisions for refund of levy payments (see clauses 122 and 123 of Schedule
2).
71. Item 11 provides for Schedule 2 to be excluded from this section
as the Dairy Industry Adjustment Program has its own provisions in respect to
overpayments (refer Part 2, Divisions 4 and 5 of Schedule 2).
72. Item 12
provides for Schedule 2 to be excluded from this section as the Dairy Industry
Adjustment Program has its own provisions in respect to access to premises for
the purposes of the Dairy Adjustment Levy (see Part 4 Division 9 of Schedule
2).
73. Item 13 provides for Schedule 2 to be excluded from this section
as the Dairy Industry Adjustment Program has its own provisions in respect to
secrecy and protection of confidentiality of information (refer Part 2 Division
3 and clause 126 of Schedule 2).
74. Item 14 provides for Schedule 2 to
be excluded from this section as the Dairy Industry Adjustment Program has its
own provisions for the appointment of authorised persons (see clause 125
of Schedule 2).
75. Item 15 inserts a proposed new section 125A to the
Dairy Produce Act 1986 to give effect to proposed Schedule 2 to the
Dairy Produce Act 1986 which provides for the Dairy Industry Adjustment
Program.
76. Item 16 provides for the existing Schedule to be renamed
Schedule 1, as the Dairy Industry Adjustment Program is to be added to the
Dairy Produce Act 1986 as Schedule 2.
77. Item 17 adds Schedule 2 to
the Dairy Produce Act 1986. Schedule 2 contains the Dairy Industry
Adjustment Program.
Clause 1 Simplified outline
78. Clause 1 provides an executive summary of Schedule 2 and Part 9C of the Farm Household Support Act 1992 which provide the framework for the implementation of the Dairy Industry Adjustment Program.
Clause 2 Definitions
79. Clause 2 defines the terms used in
the Bill. Important terms in the overall scheme of the legislation are the
terms ‘deliver’, ‘manufacturing milk’ and ‘market
milk’. The interaction of these definitions means that only milk
delivered in the 1998-99 financial year on which the market milk levy was
imposed or which a domestic market support payment was paid will be used as the
basis on which to calculate payments under DSAP.
Clause 3 DSAP payment
start day
80. DSAP payments will only commence on Proclamation. This
will occur once the Government is satisfied that the states and territories have
effectively deregulated their farmgate pricing arrangements through repeal of
relevant legislation or other appropriate measures. If the DSAP payment
start day does not commence within 6 months of the Bill receiving Royal
Assent, Part 2 of this schedule (which deals with DSAP payments) will be
repealed. The net effect being the DSAP scheme will not commence, and
there would be no payments.
81. Dairy farmers will have a period of 3 months to apply for DSAP. This
3-month period will be formally specified by way of a notice in the Gazette. To
facilitate the claim period and hence the DSAP scheme commencing as soon
as possible, this notice will not be disallowable.
Clause 5
Entity
82. This clause defines who will be eligible to apply for the
DSAP scheme.
83. The definition of dairy farm enterprise is necessary to enable calculation of the overall enterprise amount (refer Clause 2) or maximum DSAP payment available to a particular business. This maximum overall enterprise amount is based on milk delivered in the 1998-99 financial year on which the market milk levy was imposed or on which a domestic market support payment was paid. Where a particular dairy farm enterprise supports a sharefarming or leasing arrangement (as defined under the DSAP scheme), these arrangements are to be included with the owner operator as a single business for the purpose of calculating the overall enterprise amount.
Clause 7 Eligible interest in a dairy farm
enterprise
84. Subject to the DSAP scheme, owner operators,
sharefarmers, lessors and lessees will be eligible to claim the overall
enterprise amount attributable to a particular dairy farm
enterprise.
85. This is a technical provision to clarify that although Part 1 refers
to the present tense, it does not mean that the provisions contained in Part 1
cannot be applied in the past.
Part 2- DSAP
payments
Division 1 - DSAP scheme
Clause 9 Simplified outline
86. Clause 9 provides a
simplified outline of Division 1.
Clause 10 DSAP
Scheme
87. The Minister must formulate the DSAP scheme within
14 days of the Bill receiving Royal Assent. Clause 10 outlines key elements to
be included in the DSAP scheme.
Clause 11 General policy objectives for the DSAP scheme
88. In
formulating the DSAP scheme, the Minister must seek to ensure the policy
objectives or guidelines set out in clauses 11 to 23 are
achieved.
Clause 12 Types of payment rights
89. Clause 12
outlines the 3 types of payment rights that will be available under the
DSAP scheme – standard payment rights, exceptional
events supplementary payment rights and anomalous circumstances payment
rights.
Clause 13 Standard payment right
90. A standard payment right will only be available to an entity which
held an eligible interest in a dairy farm enterprise at
6.30pm on 28 September 1999 and delivered market and or manufacturing milk
during 1998/99. The Commonwealth Government announced on 28 September 1999 that
it would provide an adjustment package should all states decide to remove their
farm gate arrangements. It is considered that it would be unreasonable for
farmers to be aware of the Government’s decision and have accounted for it
in any contractual arrangements prior to 6.30pm on 28 September
1999.
91. Subclause 13(3) outlines the calculation of the face value of a
standard payment right depending on the number and type of eligible
interests. For example, subclause 13(3)(a) deals with the payment
right of an owner operator where there are no eligible sharefarming or
leasing arrangements (as defined under the DSAP scheme). Generally,
subclause 13(3) deals with common types of arrangements that involve 2 or more
parties. The DSAP scheme will outline the calculation of the face value
of the standard payment right for more complicated
arrangements.
92. In order to achieve current market milk prices for milk
deliveries, a particular essential capital contribution is required.
This may be provided through ownership of quota. Where no quota arrangement
exists but access to market milk pricing is available, the essential capital
contribution is provided through ownership of land and/or a significant
proportion of the livestock. Subclause 13(5) provides that only those entities
who can demonstrate they provide the essential capital contribution will
have access to the premium component (as defined in clause 2).
Subclause 13(5A) allows for an entity or entities who may form part of a
partnership to be taken to own the entire proportion of the livestock for the
purposes of determining a significant proportion of the livestock. This will
ensure partnerships are not disadvantaged by having to own significantly more of
the livestock than the intended 25% or more.
93. An exceptional events supplementary payment right will only be
available to an entity which has been granted a standard payment right. In
addition, the entity must be able to demonstrate that, as a result of an
exceptional and natural event (including flood, fire, drought or disease) milk
deliveries during the 1998-99 financial year were reduced by 30% or more of the
average delivered in the 1997/98, 1996/97 and 1995/96 financial
years.
94. Subclause 14(3) provides that the exceptional events
supplementary payment right cannot exceed the amount that would have been
the total face value of the standard payment right if the exceptional
event had not occurred. Subclause 14(4) provides the DAA with the discretion to
determine the value of the payment right and when it is conferred on the
entity. More than one payment right can be issued to an entity, if, in
the first instance, the DAA is not able to provide the full amount the entity
may be eligible for.
95. This provision provides that an entity which does not pass the
standard DSAP test (as defined) but held an eligible interest in a
dairy farm enterprise during the whole, or part, of 1998/1999 and is
taken to have been affected by anomalous circumstances (as defined under the
DSAP scheme), is eligible for the grant of an anomalous circumstances payment
right.
96. The grant of an anomalous circumstances payment
right will be at the discretion of the DAA.
97. The purpose of the $350 000 limit is to ensure that payments in
excess of this amount flow only to those farmers who rely primarily on dairying
as their main source of income. When an entity applies for a payment
right, a qualified financial adviser (as defined under the DSAP
scheme) will be required to certify that the entity passes the 70% dairy
income test (as defined under subclause 16(3)). It should be noted that a
statement made in a certificate is subject to the provisions of clause 49
(cancellation of units because of the making of a false statement) and clause
132 (false or misleading statements in claims).
Clause 17 Farm
business assessment
98. To be eligible for a payment right, an
entity must have undertaken a farm business assessment (as defined under the
DSAP scheme). It is intended the farm business assessment will assist
farmers to understand the likely impact of the changing market situation on
their business after deregulation. The assessment will guide producers on the
options available to them in meeting these new circumstances and how best to use
the structural adjustment payments. It should be noted that a statement made in
a certificate under subclause 17(2)(b) is subject to the provisions of clause 49
(cancellation of units because of the making of a false statement) and clause
132 (false or misleading statements in claims).
Clause 18 Units in
payment rights
99. Clause 18 provides for the calculation of the
number of units in a payment right. For example, a payment right
of $100,000 would equate to 3125 units.
Clause 19 Cancellation of
units
100. This clause clarifies that the DAA has the power, under
clauses 49, 50, 51 and 52, to cancel payment rights where they have been
granted on the basis of false statements, error, failure to dispose of units as
directed or when an exit payment is granted. However, the DSAP scheme
may provide that the DAA is not to cancel a unit where there has been an error
by the DAA (clause 50) if the DAA is satisfied that the entity (or each of the
entities) who received a DSAP payment in respect of the unit acted in good
faith.
Clause 20 Duration of scheme
101. To be granted a
payment right, an entity, or a person acting on behalf of the entity, must make
a claim during the DSAP claim period. This is to allow the DAA, in assessing
the applications (after the close of the DSAP claim period) to determine the
exact number of entities claiming an overall enterprise amount in relation to a
specific dairy farm enterprise. However, clause 20(2)(b) provides that where
units are cancelled due to a false statement or error by the DAA, the DAA may
allow claims relating to that enterprise after the end of the DSAP claim
period.
102. Subclause 20(3) provides that DSAP payments cannot be made
before the DSAP payment start day which is defined under clause 2.
Payments are not to be made in respect of a quarter that is later than the
quarter ending on 30 June 2008.
103. Clause 21 provides that the DAA is to keep a register, in electronic
form or otherwise, in which the DAA records particulars of units, including
ownership. The DSAP scheme will specifically define the class of
entities who can own a unit. It is intended ownership will be limited to
primary producers or the beneficiaries of deceased estates of dairy
producers.
104. Subclause 21(4)(a) provides that the transfer of
ownership of a unit is not to be registered unless the transferee is an eligible
entity. However, subclause 21(4)(b) provides that where a transfer is not to an
eligible entity, the transfer can be registered provided that the transferee
gives the DAA a written undertaking to assign the unit to an eligible entity
within 60 days after the transfer is registered. For example, in the case of
bankruptcy, the liquidator has 60 days to sell the units to an eligible
entity.
105. Subclauses 21(8) and 21(9) prevent the undermining of
subclause 21(4) by the use of trusts and equitable assignments.
Clause 22
Invitations to make claims for payment rights etc
106. To enable
farmers to become aware of the requirements for applications under the DSAP
scheme during the DSAP claim period, the DAA will be required to
conduct a public information program about the scheme, including advertisements
in local and national newspapers. In addition, the DAA is to obtain and record
information to assist entities in making claims for payment rights and to
assist the DAA in assessing those claims. This will include the DAA making
reasonable efforts to identify and contact those entities it believes could be
eligible to claim a payment right. However, any entity which does not
receive a formal invitation from the DAA is also allowed to make a claim for a
payment right.
Clause 23 Making of DSAP
payments
107. At the end of the DSAP claim period, the DAA
will have 30 days to assess claims. At the end of the assessment period, the
DAA will notify an entity of their payment right and their rights of
appeal (refer clause 25 and 26). If the entity does not appeal the decision,
the initial payment, subject to the DSAP payment start day, will be made
on the first day after the end of the 28-day period. If the first day is
earlier than the DSAP payment start day, the initial payment day
is the DSAP payment start day. Subclause 23(3)(b) provides that
subsequent payment days will be ascertained in accordance with the scheme,
subject to the DSAP payment start day.
108. Subclause 23(3)
provides for the initial payment day for each payment right.
Where there are no requests for appeal and the DSAP payment start day has
been declared, the first payment will be made on the first day after the end of
the appeal period. Where there are appeals, the first payment will be
determined in accordance with the DSAP scheme, subject to the DSAP
payment start day.
109. Subclause 23(4) provides for the making of
DSAP payments in the initial payment quarter and earlier quarters, while
subclause 23(5) provides for the making of DSAP payments in subsequent quarters.
For example, if the initial payment day is 1 November 2000, the
registered owner of a unit in a payment right would receive $1 for the
September quarter (the earlier quarter) and $1 for the December quarter (the
initial payment quarter) ie a total of $2. For all subsequent quarters, up
until 30 June 2008, the registered owner would receive $1.
110. Subclause
23(6) provides that the DAA has, subject to the DSAP scheme, up to 10
working days from the initial payment day (in the case of the first
payment) and the first day of the quarter (in subsequent payments) to make the
payment. To allow flexibility, the due date will be defined in the DSAP
scheme but it is not intended to be an unreasonably long period given the
limit in clause 23(6)(b).
Clause 24 Scheme may confer administrative
powers on the DAA
111. Clause 24 provides that the DSAP scheme can
confer discretionary powers on the DAA.
112. The DSAP scheme must provide for the reconsideration and review of
decisions. An entity has 28 days after the decision comes to their attention to
request the DAA to reconsider the decision. In practice, it would be taken to
be when they receive notification of the decision by registered mail. If an
entity requests such a reconsideration or review, the DAA is required to
reconsider the decision and confirm, revoke or vary the decision as the DAA
considers appropriate. If the DAA does not confirm, revoke or vary a decision
within 60 days of receiving the request, the DAA is taken, at the end of that
period, to have confirmed the decision.
113. Subclause 25(1)(c) provides
that an entity can only apply to the Administrative Appeals Tribunal (AAT) once
the DAA has confirmed or varied its original decision. Once the DAA has
confirmed its decision, subclause 25(7) provides that an entity has 28 days to
apply to the AAT. If an entity requests the reconsideration of a decision under
subclause 25(1)(a), the original decision will continue to operate. However, an
entity may apply to the AAT for the decision to be stayed or suspended pending
the outcome of the review.
Clause 26 Statement to accompany notification of
decisions
114. Clause 26 provides that the DAA, when making an
administrative decision under the DSAP scheme, must, when advising the
entity of the decision, include details regarding the entity’s right to
seek a reconsideration of the decision, and if dissatisfied with the
reconsideration, to apply to the AAT.
115. Subclause 26(2) provides that
when the DAA gives to the entity written notice of the confirmation or variation
of a decision under subclause 25(1)(b), the notice must include details
regarding the entity’s right to apply to the AAT for review of the
decision.
Clause 27 Fees
116. Clause 27 provides that the
DSAP scheme may provide for fees. For example, updating the register to
reflect changes in ownership may be subject to a fee.
Clause 28
Statutory declarations
117. Under the DSAP scheme, statements
made in claims may need to be verified by statutory declaration. For example,
in order for the DAA to determine entities’ shares of the overall
enterprise amount, it may be necessary for the entities to certify to the
DAA their share of income from milk deliveries to allow the DAA to determine
each entity’s share of the face value of the payment right. Such
certification would be provided to the DAA at the time of an entity’s
application for a payment right.
Clause 29 Methods by which
DSAP payments may be made
118. This clause outlines the methods by
which DSAP payments may be made, including by electronic funds
transfer.
Clause 30 Adjustment of eligibility for payment rights –
transfer of milk delivery rights
119. Clause 30 provides for the
adjustment of eligibility for payment rights to recognise change in ownership of
quota since 1 July 1998. The amount of milk produced by the transferor will not
change, however, that which attracted a premium payment, that is market milk
payment in the year 1998/99, will be recognised for entitlement purposes as
attracting the manufacturing milk price, or non premium payment,
only.
120. The amount of milk produced by the transferee will not change,
however, the premium payment that was received by the transferor prior to
transfer will be recognised for entitlement purposes as being received by the
transferee. In practice, the transferee will receive 37.27 cents per litre for
the amount of the quota transferred and the transferor will receive 8.96 cents
per litre for the amount transferred.
Clause 30A Adjustment of
eligibility for payment rights – abnormal market milk pool
distributions
121. Clause 30A provides for the adjustment of
eligibility for payment rights to recognise abnormal distribution of market milk
pool distributions in 1998/99 to producers delivering milk through pooling
systems. Pooling is intended to ensure all producers receive an equal
proportionate share of market milk payments. Where this did not happen in
1998/99, the DSAP Scheme may make provision to adjust payment rights as if an
equal proportionate share of market milk payments were made during that
year.
122. Clause 31 allows the DSAP scheme to modify eligibility
requirements for a payment right to cover the death of an individual who
held an eligible interest in a dairy farm enterprise at 6.30pm on
28 September 1999.
Clause 32 Ancillary or incidental
provisions
123. If the Minister considers appropriate, the DSAP
scheme may contain other ancillary or incidental
provisions.
Clause 33 Scheme making power not
limited
124. In formulating the DSAP scheme, while the
Minister must have regard to the policy objectives outlined in clauses 11 to 32
inclusive, the Minister is not limited by these objectives.
Clause 34
Variation of scheme
125. This clause provides for variation of the
DSAP scheme. Any variation must be consistent with the relevant policy
objectives and requirements set out in Part 2.
Clause 35 Scheme to be
a disallowable instrument
126. The DSAP scheme, to be
formulated by the Minister, will be a disallowable instrument.
Clause
36 Application to things happening before commencement
127. This is a
technical provision to clarify that although Division 1 refers to the present
tense, it does not mean the provisions contained in Division 1 cannot be applied
in the past.
Division 2 – Information-gathering powers
Clause 37 DAA may obtain information and
documents
128. Clause 37 enables the DAA to obtain information and
documents from a person which the DAA has reason to believe is relevant to the
operation of the DSAP scheme. Similarly, the DAA may also require a
person to give evidence. Failure by a person to comply with a request for
information, documents or evidence is guilty of an offence under subclause
37(5). In addition, a person complying with a request from the DAA for
information, documents and evidence is subject to the offences set out in Part 5
of this Schedule.
Clause 38 Copying documents-reasonable
compensation
129. A person complying with the DAA’s request to
make copies of (and supply) any such documents to the DAA which the DAA has
reason to believe is relevant to the operation of the DSAP scheme, is
entitled to be paid reasonable compensation.
Clause 39
Self-incrimination
130. An individual, who is subject to a notice
given by the DAA under clause 37, can not refuse to comply with the notice on
the grounds that the giving of information or evidence or producing a document
(or a copy of a document) under this Division on the grounds that the
information or evidence or the production of the document (or copy) might tend
to incriminate the individual or expose the individual to a
penalty.
131. However, giving the information or evidence or producing
the document (or copy) and any information, document or thing obtained as a
direct or indirect consequence of giving the information or evidence or
producing the document (or copy), is not admissible in evidence against the
individual in criminal proceedings other than proceedings for an offence against
subclause 37(5), clause 131, clause 132, clause 133 or clause
134.
Clause 40 Copies of documents
132. If, in accordance
with the DAA’s information gathering powers, a person is required to
produce a document (or copy), the DAA may inspect and make and retain copies of
the document.
Clause 41 DAA may retain
documents
133. Clause 41 provides that while the DAA may take and
retain documents for as long as is necessary, the person who owns the document
is entitled to be supplied with a certified true copy as soon as practicable.
This certified true copy must be received in all courts and tribunals as
evidence as if it were the original. Until a certified copy is supplied, the
DAA must provide the owner with reasonable access to the document.
Division 3 - Protection of confidentiality of information
Clause 42 Protection of confidentiality of
information
134. Clause 42 protects confidentiality of information.
Specifically, it restricts what the entrusted person may do with
protected information, or protected documents, that the person has obtained in
the course of official employment (as defined). Subclause 42(3) outlines
what information an entrusted person may record or disclose. If the
entrusted person breeches these restrictions, they are liable to imprisonment
for 2 years.
Division 4 - Recovery of scheme debts
Clause 43 Scheme debt
135. Clause 43 defines a scheme debt
to allow recovery by the DAA of DSAP overpayments.
Clause 44 Scheme
debts are debts due to the Corporation
136. A DSAP overpayment is a
debt due to the Corporation.
Clause 45 Recovery by legal
proceedings
137. The DAA, as the agent of the Corporation, may seek
to recover a DSAP overpayment by action in a court of competent
jurisdiction.
Clause 46 Recovery by set-off
138. A DSAP
overpayment may be recovered from an entity by deducting the overpayment from
one or more future DSAP payments payable to the entity.
139. Clause 47 allows the Corporation to collect money from a person who
owes money to an entity that has a DSAP overpayment. For example, it allows the
DAA to recover a DSAP overpayment from an entity’s bank account. The
third party must comply with the DAA’s direction or be subject to a
penalty.
140. The entity is liable to a penalty of 16% per year on the unpaid
amount of a scheme debt. The penalty is to encourage repayment of the debt.
However, if a scheme debt is the result of an error made by the DAA or the
Corporation and the payment concerned was received in good faith, the penalty
does not apply. Subclause 48(4) is a standard provision which allows the
penalty payable to be reduced in the case where a judgement debt bears
interest.
Division 5 - Cancellation of units
Clause 49 Cancellation of units because of the making of a false
statement
141. If the making of a false statement results in a payment right being granted or the face value of the payment right exceeding what it should have been if the statement was not false, the DSAP scheme must give the DAA the power to cancel the payment right entirely or cancel the excess units. Units cancelled under this clause may result in an overpayment which can be recovered by the DAA under Division 4. The net effect of this clause and Division 4 is that the Commonwealth can recover payments made on the basis of fraudulent claims.
Clause 50 Cancellation of units because of an error made by the DAA
142. If a DAA error in relation to the grant of a payment right
(and not the result of a false statement) results in a payment right
being granted or the face value of the payment right exceeding what it
should have been if the statement was not false, the DSAP scheme must
give the DAA the power to cancel the payment right entirely or cancel the
excess units. A unit cancelled under this clause may result in an overpayment
which can be recovered by the DAA under Division 4. The net effect of this
clause and Division 4 is that the Commonwealth can recover payments made on the
basis of an error made by the DAA. However, the DSAP scheme may allow
the DAA discretion as to the cancelling of units where an entity who received a
DSAP payment in respect of a unit acted in good faith.
Clause 51
Cancellation of unit because of a breach of an undertaking to assign the
unit
143. If an entity breaches their undertaking to assign a unit to
an eligible entity in accordance with clause 21(4)(b) (ie within 60 days after
the transfer is registered), the DAA must write to the entity directing them to
comply with the undertaking within 60 days. If the entity does not comply with
the written direction, the DSAP scheme must authorise the DAA to cancel
the unit at the end of that 60-day period.
Clause 52 Cancellation of units when a dairy exit payment becomes payable
144. To apply for the DEP scheme, an entity must first be granted
a DSAP payment right and still be the registered owner of one or more
unencumbered units in the payment right. The units in the DSAP payment
right are only cancelled if an entity qualifies for the DEP
scheme.
Clause 53 Limit on cancellation or variation
145. A DSAP payment right or a unit can only be cancelled in accordance with clauses 49, 50, 51 and 52.
Division 6 - Dairy Adjustment Authority
Clause 54 Dairy Adjustment Authority
146. Clause 54
provides for the establishment of the DAA.
Clause 55
Functions
147. Clause 55 provides for the functions of the DAA.
Clause 56 Powers
148. The DAA has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. In particular, the DAA has the power to enter into contracts and agreements on behalf of the Commonwealth.
Clause 57 Phasing-down of the DAA
149. Clause 57 allows the
Minister to phase-down the DAA by reducing the number of DAA members. For
example, the Minister may phase down the DAA to ensure that its size is
commensurate with its workload.
Clause 58 Membership of the
DAA
150. Clause 58 provides for membership of the DAA at various
intervals. For fraud control purposes, the DAA will not be abolished and if
there is no ordinary member, the Secretary will be the ex-officio member of the
DAA. This is to ensure that if fraud is discovered at any time in the future,
the DAA will be able to cancel the units and recover any
overpayments.
Clause 59 Qualifications of DAA members
151. Clause 59 provides for the qualifications of DAA members.
Clause 60 Appointment of DAA members
152. Ordinary DAA
members are to be appointed by the Minister on a part-time basis by written
instrument. To allow flexibility, the period of appointment is to be specified
in the instrument.
Clause 61 Procedures
153. Subclause
61(1) outlines the various procedures, such as the convening of meetings, to be
prescribed in regulations. Subclause 61(2) specifically provides for the
procedure for the passing of a resolution at a DAA meeting.
Clause 62
Disclosure of interests before the second DAA phase-down
time
154. Clause 62 provides for the disclosure of interests by an
ordinary DAA member who has a material personal interest in a matter being
considered by the DAA. Clause 63 provides for the disclosure of interests after
the second DAA phase-down time.
155. Clause 63 provides for the disclosure of interests by an ordinary
member or the Secretary as the ex-officio member of the DAA after the second DAA
phase-down time. If the Minister considers the DAA has a material interest in a
matter which could conflict with the proper performance of its functions in
relation to that matter, the Minister must direct the DAA to delegate its powers
and functions in relation to that matter to an SES or acting SES employee.
Clause 64 Remuneration and allowances
156. The remuneration of
an ordinary DAA member is to be determined by the Remuneration Tribunal or as is
prescribed. An ordinary DAA member is to be paid such allowances as are
prescribed.
157. An ordinary DAA member can be absent from a meeting or meetings of
the DAA with the approval of the Minister or the DAA Chairman.
Clause
66 Resignation
158. An ordinary DAA member may resign by writing
(signed by the member) and sent to the Minister.
159. Clause 67 provides that the Minister may terminate an ordinary DAA
member’s appointment, or the appointment of all of the ordinary DAA
members, if the Minister considers the member’s or the DAA’s
performance has been unsatisfactory. For example, subclause 67(3) provides for
termination of appointment because of misbehaviour or physical or mental
incapacity. The Minister may also terminate the appointment of the government
member.
Clause 68 Other terms and conditions
160. The
Minister can determine that an ordinary DAA member holds office on such terms
and conditions in respect of matters not covered by this Act.
Clause
69 Corporation must provide assistance to DAA
161. This clause
provides that if the DAA requests the Corporation to provide it with resources
and facilities, the Corporation must provide the requested assistance. However,
this does not prevent the DAA from obtaining resources elsewhere. It should be
noted that staff of the Corporation working for the DAA are not subject to the
direction of the Corporation, or the Managing Director. This is to clearly
delineate the separate roles and responsibilities of the two
bodies.
Clause 70 Consultants etc
162. The DAA, by acting
on behalf of the Commonwealth, may engage consultants.
Clause 71
Delegation by DAA- before second DAA phase-down time
163. To enable
the efficient and effective operation of the DAA, the DAA may delegate its
functions or powers to a DAA member or a person who holds or performs the duties
of a position of General Manager for the Corporation, in so far as the
Corporation officer is responsible for support of DAA
activities.
Clause 72 Delegation by DAA-after second DAA phase-down
time
164. Clause 72 provides for the delegation of powers and
functions by an ordinary DAA member or the Secretary as the ex-officio member of
the DAA. These powers and functions can only be delegated to an SES employee or
acting SES employee.
Clause 73 Annual report
165. Clause 73
provides for the annual reporting requirements of the DAA.
Division 7 - Miscellaneous
Clause 74 DSAP Payments taken to be subsidies for the purposes of
section 15-10 of the Income Tax Assessment Act 1997
166. This
clause provides that DSAP payments will be subject to income
tax.
Clause 75 Review in 2002-2003
167. The review in
2002-2003 will allow the Minister to assess the adequacy of levy collections to
fund DSAP payments and dairy exit payments, following the end of
the Dairy Exit Program.
Clause 76 Establishment of the Dairy Structural Adjustment
Fund
168. Clause 76 provides for the establishment of the Dairy
Structural Adjustment Fund (DSAF) to house the funds collected under the dairy
adjustment levy. This fund will be vested in and managed by the Corporation in
accordance with the requirements of the Commonwealth and Authorities and
Companies Act 1997.
Clause 77 Money to be paid into the Dairy
Structural Adjustment Fund
169. Clause 77 clearly specifies the money
to be credited to the DSAF, including the dairy adjustment levy, fees and civil
penalties relating to the DSAP scheme and the recovery of
overpayments.
Clause 78 Application of the Dairy Structural Adjustment
Fund
170. Clause 78 lists the specific purposes for which the
Corporation is to spend the money in the DSAF. It should be noted that
subclause 78(m) includes interest repayments on money borrowed by the
Corporation for the purpose of making payments in accordance with this
clause.
171. Clause 79 provides that the Corporation and the Minister must take
all reasonable steps to ensure that there is sufficient money in the Fund to
make DSAP and DEP payments and meet any other calls on the Fund as those calls
fall due.
Clause 80 Borrowing for the purposes of the Dairy Structural
Adjustment Fund
172. Clause 80 allows the Corporation to borrow money
for the purpose of making payments in accordance with clause 78. To allow the
Corporation to make DSAP and dairy exit payments from the DSAP payment
start day, such borrowings can occur before the DSAP payment start
day.
Clause 81 Investment of money standing to credit of the Dairy Structural
Adjustment Fund
173. Clause 81 provides that the Corporation can
invest money standing to the credit of the DSAF only in accordance with section
19 of the Commonwealth Authorities and Companies Act 1997.
Clause 82 Payment of dairy adjustment levy to the
Corporation
174. Clause 82 provides that although the dairy
adjustment levy and associated penalties must be paid into Consolidated Revenue,
the Commonwealth must pay this money to the Corporation.
Clause 83 Payment of DSAP scheme fees to the
Corporation
175. Clause 83 provides that although fees collected
under the DSAP scheme must be paid into Consolidated Revenue, the
Commonwealth must pay this money to the Corporation.
Clause 84 Payment
of penalties under the DSAP scheme to the Corporation
176. Clause 84
provides that although penalties collected under the DSAP scheme for
unpaid scheme debts must be paid into Consolidated Revenue, the Commonwealth
must pay this money to the Corporation.
Division 1 - Introduction
Clause 85 Simplified outline
177. Clause 85 contains
a simplified explanation of the Dairy Adjustment Levy and its collection
arrangements.
178. This clause lists definitions of terms used in this part. Of
particular note:
179. levy means the levy that is payable under
Division 2 and imposed as the Dairy Adjustment Levy by any of the following
Acts:
(a) the Dairy Adjustment Levy (Excise) Act
2000;
(b) the Dairy Adjustment Levy (Customs) Act
2000;
(c) the Dairy Adjustment Levy (General) Act
2000.
180. process in the context of clause 95 is used to
identify the last process before the product is leviable. Process does
not include common management practices such as chilling, transport or
distribution of the product, where the state of the product is not changed.
181. Relevant application to own use is used to take account of
activities which are the equivalent of a retail sale of milk product, but are
not a retail sale. The notes on clause 87 provides some examples of relevant
application to own use.
Division 2 - Liability for levy
Clause 87 When levy is payable
182. Subclause 87(1)
provides for where levy is payable. These subclauses ensure that the levy
raises sufficient revenue to fund the Dairy Industry Adjustment Program, and
simplify the collection process.
183. Subclause 87(1)(a) applies the
levy liability at the point of sale of the leviable milk product to a retailer.
184. Subclause 87(1)(b) applies the levy to the retail sale of a
leviable milk product where there has not been a sale to a retailer before the
sale to the consumer. In most cases this involves a sale of milk direct from
the milk factory or a dairy farm to the consumer, or a prison dairy farm that
produces milk that may be sold through the prison cafeteria.
185. Subclauses 87(1)( c) and (d) ensure that levy is imposed where the
equivalent of a retail sale of milk product has occurred.
186. Subclause 87(1)(c) applies the levy liability at the point of sale
of the leviable milk product to a person who purchases it for the purposes of
relevantly applying it to their own use. The product may have been purchased
for example, for:
(a) giving it away to a person who does not give any
consideration for it, such as a promotional give-away by a supermarket, or
consumption by patients in a public hospital; or
(b) transferral of the milk
product as part of an overall contract, where consideration by the consumer is
given, but not specifically for the purpose of buying milk, such as milk sachets
in motels, airlines etc; or
(c) where the leviable milk product is an
ingredient in a product that is given to the consumer and may or may not involve
consideration by the consumer. Examples are:
(i) where a café has purchased leviable milk product from a milk
vendor to make custard for use as part of a meal purchased by the
consumer.
(ii) where a person has purchased leviable milk product from a milk
vendor to make custard that is given away.
(iii) where an airline has
purchased leviable milk product to make custard for use as part of a meal
provided as part of the airline service.
187. Note that clause 89 provides that once the levy has been imposed, it
cannot be imposed a second time. For example, should a community group have
purchased some milk from a supermarket the levy will already have been imposed
on the supermarket by subclause 87(1)(a). Should the community group use the
milk as an ingredient in a product that is either given away or sold to raise
money, they would not have to pay levy (under subclause 87(1)(c)) as the levy
has already been paid by the supermarket.
188. Subclause 87(1)(d)
applies the levy liability where the person uses the leviable milk product for
the purposes of relevantly applying it to their own use similar to subclause
87(1)(c). The difference between this subclause and subclause 87(1)(c ) is that
the levy payer does not purchase the product in Australia before the relevant
application to own use. That is, they are either vertically integrated within
Australia, or have brought product into Australia for the relevant application
to own use.
189. Subclause 87(2) prevents the application of the levy
to a relevant application to a persons own use of a leviable milk product if it
is consumed at the site on which it was produced. For example this clause
provides an exemption from the levy for domestic farm or housecow milk consumed
on farm, or the circumstance where a prison dairy provides milk for the
consumption of the inmates free of charge.
190. Subclause 87(3)
provides that the levy will not be payable unless it is imposed as the Dairy
Adjustment Levy by another Act. The Dairy Adjustment Levy (Excise) Bill
2000, the Dairy Adjustment Levy (Customs) Bill 2000 and the Dairy
Adjustment Levy (General) Bill 2000 impose the levy.
Clause
88 Commencement of levy
191. This clause provides for the levy to
commence on products leviable under clause 87 on 8 July 2000.
Clause
89 No double levy
192. This clause prevents the double application of
the levy by providing that if the leviable milk product has previously been
subject to the imposition of levy then further levy under this legislation can
not be applied.
Clause 90 Exemptions from
levy
193. This clause allows regulations to be made which provide
exemptions from levy.
Clause 91 Who pays the levy
194. This
clause stipulates who is liable to pay the levy and is aligned with the
provisions of subclause 87(1) which provides for when levy is
payable.
Clause 92 Termination of levy when core funding obligations
are met
195. This clause provides for the Dairy Adjustment
Levy to be terminated by the Minister publishing a notice in the Gazette
once the Minister is satisfied that certain costs associated with the Dairy
Industry Adjustment Program have been met. This includes the cost to the
Commonwealth of collecting the Levy.
Clause 93 Termination of levy if
DSAP payment start day does not occur within 6 months after the Dairy
Industry Adjustment Act 2000 receives Royal Assent
196. This
clause provides for the Dairy Adjustment Levy to be terminated after a
period of six months after Royal Assent if the Dairy Structural Adjustment
Program start day is not fixed by a Proclamation published in the
Gazette.
Division 3 - When levy due for payment
Clause 94 When levy due for payment
197. The intention of
this clause is to protect levy revenue by limiting the elapsed time between sale
or supply of the product and the payment of the levy.
198. If the levy
was payable on the sale of a leviable milk product under clause 87(1)(a) or (c),
the levy is due and payable on whichever of the following comes
first:
(a) the first day on which any part of the payment for the sale is
due; or
(b) 90 days.
199. Where levy is payable under Clause 87(1)(b) the levy is due for payment
on the 28th day after the end of the month after the product was
sold. If the levy is payable under Clause 87(1)(d) then the levy is due for
payment on the 28th day after the end of the month in which the
relevant application occurred.
200. If the levy payer is declared a
designated small levy payer (refer clause 121), levy will be payable on the
28th day after the end of the financial year.
Division 4 - Collection agents, collection sub-agents and collecting organisations
201. The purpose of this Division is to provide for a process of levy
collection that maximises target revenue collection at least cost to the
Commonwealth and Industry.
Clause 95 Collection
agents
202. This clause requires that levy is payable under Clause
87(1)(a), (b) or (c), unless there is a collection agreement between the
Commonwealth and the purchaser. It is intended by this clause for the person
who conducted the last process to be agents of the Commonwealth and
collect the levy from retailers other purchasers or sub-agents and then remit
the levy at a regular interval to the Commonwealth.
203. Subclause
95(2) provides measures to secure collection of the levy. The collection agent
is defined as the person who conducted the last process before the sale
to a person for resale or applying the product to their own use. In the
majority of cases the person conducting the last process, and is thus
recognised as the collection agent, will be the milk processor.
204. Subclause 95(3) provides that where a purchaser has paid the levy
to a collection agent, then their liability to pay the levy to the Commonwealth
is discharged. The intent of this subclause is to prevent the purchaser being
exposed to possible double payment of levy upon leviable milk product. This
would occur if the collection agent has defaulted in remitting the levy to the
Commonwealth.
205. Subclause 95(4) provides a time frame for the
collection agent to remit the levy to the Commonwealth. This would usually be
28 days after the end of the month in which the levy was collected, except in
the case of designated small remitters (refer clause 120), who would be required
to remit the levy on the 28th day after the end of the financial
year.
206. Subclause 95(5) provides offences for contravention of this
clause.
Note as at 1 February 2000, one penalty unit is prescribed by
subsection 4AA(1) of the Crimes Act 1914 as $110.
207. Subclause 95(6) provides that a collection agent in supplying the
product must inform the purchaser that levy is payable on the sale of the
product, and the amount of levy payable.
208. Subclause 95(7) provides
an offence for failing to adhere to the requirements of subclause 95(6) of 50
penalty units.
Clause 96 Collection sub-agents-simple supply
chain
209. This clause establishes a single interposed person between
the collection agent (usually the processor) and the purchaser as a collection
sub-agent for the levy on behalf of the Commonwealth. It is intended by this
clause for the interposed persons to be sub-agents of the Commonwealth and
collect the levy from retailers or other purchasers and then remit the levy at a
regular interval to the collection agent.
210. For example if the
collection agent, being a processor, sells the product to a wholesaler who then
on-sells the product to a purchaser the wholesaler is deemed to be the
interposed person and therefore a sub-agent
211. This clause allows
amounts of levy to be amalgamated along the supply chain to ease levy
collection. In addition, it enables any necessary levy recovery action to take
place at any point in the supply chain and allows the levy to be paid in tandem
with payment for the product between each party, thereby reducing business
costs.
212. Sub-agents are excused from collecting and remitting the
levy if a relevant third party has an agreement with the Commonwealth to collect
levy (under the provisions of Clause 101).
213. Subclause 96(2)(b)
provides that the purchaser is required to pay to the collection agent the levy
before the time when the levy becomes due to be paid under the provisions of
clause 94(1).
214. Subclause 96(3) provides that where a purchaser has
paid the levy to a collection sub-agent, then their liability to pay the levy to
the Commonwealth is discharged. The intent of this subclause is to prevent the
purchaser being exposed to possible double payment of levy upon leviable milk
product. This would occur if the collection sub-agent has defaulted in
remitting the levy to the collection agent.
215. Subclause 96(4) provides
a mechanism to establish regulations to provide a time frame for the collection
sub-agent to remit the levy to the collection agent. The determination of the
actual time frame will be set in regulations.
216. Subclause 96(5)
compliments the requirements and intent of subclause 95(4) upon the collection
agent and requires that the collection agent remit the levy received from a
sub-agent to the Commonwealth on the 28th day after the end of the
month in which the sub-agent remitted the levy. However, in the case of a
designated small remitter, the collection agent will be required to remit the
levy on the 28th day after the end of the financial year.
217. Subclause 96(6) provides offences for contravention of subclause
96(4) or (5) and applies them to sub-agents and collection agents who are
required to remit to a collection agent, or the Commonwealth, levy collected
under the provisions of this clause.
218. Subclause 96(7) and (8)
complements the requirements of subclause 95(6) and (7). This ensures that all
parties from the collection agent through the sub-agent to the retailer are
fully aware of the levy and their liability applicable to a particular amount of
leviable product.
219. Subclause 96(9) provides an offence of failing
to adhere to the requirements of subclause 96(7) or (8) with a penalty upon
conviction of 50 penalty units.
Clause 97 Collection
sub-agents-complex supply chain
220. This clause establishes two or
more persons interposed between the processor and the levy payer as collection
sub-agents for the levy on behalf of the Commonwealth. It is intended by this
clause for the interposed persons to be sub-agents of the Commonwealth and
collect the levy from retailers and other purchasers and then remit the levy at
a regular interval to the next sub-agent up the supply line to the collection
agent.
221. This clause allows amounts of levy to be amalgamated along
the supply chain to ease levy collection. In addition, it enables any necessary
levy recovery action to take place at any point in the supply chain and allows
the levy to be paid in tandem with payment for the product between each party,
thereby reducing business costs.
222. Subclause 97(2) identifies the
order of sub-agents in relation to the supply chain.
223. Sub-agents are
excused from collecting and remitting the levy if a relevant third party has an
agreement with the Commonwealth to collect levy (under the provisions of Clause
101).
224. Subclause 97(3)(b) provides that the purchaser is required to
pay the levy to the lowest ranking sub-agent (from whom they purchased the milk
product) before the time when the levy becomes due to be paid under the
provisions of subclause 94(1).
225. Subclause 97(4) provides that where
a purchaser has paid the levy to the lowest ranking sub-agent on a supply chain,
then their liability to pay the levy to the Commonwealth is discharged. The
intent of this subclause is to prevent the purchaser being exposed to possible
double payment of levy upon leviable milk product. This would occur if a
collection sub-agent in a supply chain has defaulted in remitting the levy to
the next ranking sub agent or the collection agent.
226. Subclauses
97(5), (6) and (7) complement the requirements and intent applicable to
sub-agents in subclause 96(4) and applies them to sub-agents in a complex supply
chain. This requires the lowest sub-agent in the chain to remit the levy to the
next sub-agent and the levy then to be remitted by each sub agent in turn up the
chain to the highest ranking sub agent who in turn is required to remit the levy
to the collection agent.
227. Subclause 97(8) complements the
requirements and intent applicable to collection agents in subclause 96(5) and
requires that the collection agent remit the levy received from a sub-agent to
the Commonwealth on the 28th day after the end of the month in which
the sub-agent remitted the levy. However, in the case of a designated small
remitter, the collection agent will be required to remit the levy on the
28th day after the end of the financial year.
228. Subclause
97(9) provides offences for contravention of subclauses 97(5), (6), (7) or (8)
and complements the requirements and intent of subclause 96(9) applying them to
sub-agents and collection agents in a complex supply chain who are required to
remit to another sub-agent or a collection agent or the Commonwealth levy
collected under the provisions of this clause.
229. The intention of
subclauses 97(10), (11) and (12) is to complement the requirements of subclauses
96(7) and (8), but in a complex supply chain. This ensures that all parties
from the collection agent through all the sub-agents to the party liable to pay
the levy are fully informed and aware of the levy and their liability applicable
to a particular amount of leviable product.
230. Subclause 97(13)
provides an offence of failing to adhere to the requirements of subclause
97(10), (11) or (12) with a penalty upon conviction of 50 penalty
units.
Clause 98 Collection agents and collection sub-agents to notify
unpaid levy
231. This clause provides the mechanism to readily
identify and pursue unpaid levy by requiring agents and sub-agents to inform the
Commonwealth of any levy outstanding on the 28th day after the end of
the month in which the levy was payable. This provision enables agents and
sub-agents to pass the information to the Commonwealth at the same time as levy
is remitted by the agent or sub-agent, thus reducing the administrative burden
on industry.
Clause 99 Collection agents and collection sub-agents to
notify unremitted levy
232. This clause provides for agents and
sub-agents to inform the Commonwealth of any levy that has not been remitted by
a sub-agent further down the supply chain which remains outstanding on the
28th day after the end of the month in which the levy was due to be
remitted.
Clause 100 Collection agents and collection sub-agents to
issue receipts for levy
233. The intention of this clause is that
each collection agent, sub-agent and party liable to pay the levy is provided
with proof that their obligation to pay or remit levy has been fulfilled. It
also provides the Commonwealth the means for identification and commencement of
recovery procedures where a break has occurred in the collection chain.
Provision is made to allow exemptions from this clause.
Clause 101
Collecting organisations
234. This clause is intended to allow the
Secretary to enter into an agreement with an organisation to collect the levy on
behalf of the Commonwealth. This clause closely parallels Section 11 of the
Primary Industries Levies and Charges (Collection) Act
1991.
235. Subclause 101(1) provides for the collection agreement
under this clause to apply to levy which is payable on leviable milk product
sold to a purchaser for retail sale or sold to a person for the purpose of
relevantly applying the product to a persons’ own
use
236. Subclause 101(3) outlines what may be included in such an
agreement but does not limit what may be included.
237. Subclause
101(4) provides that whilst an agreement is in force, payments of amounts of
levy by a particular person are to be made to the organisation in accordance
with the agreement.
238. Subclause 101(5) stipulates that where a person
under the provisions of an agreement pays amounts of levy, that person is
discharged from further liability to pay levy to the extent of the amount
paid.
239. Subclause 101(6) requires the Secretary to consult with the
Council before entering into an agreement
240. Sub-clause 101(7) requires
that the Secretary give notice, within 21 days, in the Gazette of
agreements entered into.
241. Subclause 101(8) allows that failure to
consult with the Council or give timely notice in the Gazette will not
invalidate the agreement. The Commonwealth and the Secretary will always have a
duty to consult with the Australian Dairy Industry Council. However, this does
not undermine the authority of the Commonwealth to make a decision to enter into
agreements with a collecting organisation.
Clause 102 Application of
the Financial Management and Accountability Act 1997
242. This
clause provides that the Financial Management and Accountability Act 1997
does not apply to levy collected by a collection agent, a collection sub agent
or a collecting organisation but does apply to moneys remitted by them to the
Commonwealth.
Division 5 - Record-keeping requirements
243. The intention of this Division is to provide for the retention of
specific records to assist in the identification of levy liability of both the
payer and collectors of the levy.
Clause 103 Record-keeping
requirements for levy payers
244. This clause is intended to provide
the requirement for levy payers to keep certain records of transactions and the
periods for which the records must be kept.
245. Subclause 103(1), (2)
and (3) requires records in respect leviable milk products where levy is payable
under the provisions of Clause 87(1) to be kept and to be retained for five (5)
years after the relevant transaction or use took place.
246. Subclause
103(4) provides that no matter what medium or method by which records are
maintained or stored, they are to be of such a type and standard as to be easily
inspected and understood by a person authorised to inspect them. The records
must be in English or readily accessible or convertible to English, and provide
sufficient information for a person’s liability to pay levy to be
ascertained.
247. Subclause 103(5) provides a mechanism to remove the
requirement for the retention of records by levy payers either under
notification by the Secretary or if the company involved has been finally
dissolved.
248. Subclause 103(6) provides penalties of 30 units for
failing to comply with the record keeping requirements of this
clause.
Clause 104 Record-keeping requirements for collection agents
and collection sub-agents
249. This clause is intended to provide the
requirement for collection agents and sub-collection agents to keep certain
records of transactions and the periods for which the records must be kept.
250. Subclause 104(1) and (2) requires records in respect to amounts of
levy received by collection agents and sub-agents to be kept and to be retained
for five (5) years after the levy is received.
251. Subclause 104(3)
provides that no matter what medium or method by which records are maintained or
stored, they are to be of such a type and standard as to be easily inspected and
understood by a person authorised to inspect them. The records must be in
English or readily accessible or convertible to English, and provide sufficient
information for a person’s liability to pay levy to be ascertained.
252. Subclause 104(4) provides a mechanism to remove the requirement of
the retention of records by collection agents or sub-agents either under
notification by the Secretary or if the company involved has been finally
dissolved.
253. Subclause 104(5) provides penalties of 30 units for
collection agents and sub-agents for failing to comply with the record keeping
requirements of this clause.
Division 6 - Late payment penalty
Clause 105 Late payment penalty
254. The intention of this
clause is to provide and set a rate of penalty for the late payment or late
remittance of the levy.
255. Subclause 105(1)(a) and (b) set out the
method to calculate the amount of penalty on late levy
payments.
256. Subclause 105(2) applies the late payment to remission of
levy by a collection agent or a collection sub-agent.
257. Subclauses
105(2)(a) and (b) set out the method to calculate the amount of penalty due.
This method is the same as late payment penalties set for other primary
industries levies, which may also be collected on behalf of the Commonwealth by
persons designated collection agents by this part (see the Primary Industries
Levies and Charges Collection Act 1991).
258. If a partial payment is
made during a month, the penalty payment is done in two parts for that
particular month.
259. Subclause 105(3) allows the Secretary or his
delegate to extinguish a whole or part of the penalty imposed under this clause.
Division 7 - Recovery of levy debts
260. This division provides for the recovery of levy, penalties, and
other amounts as debts due to the Commonwealth.
Clause 106 Levy
debts
261. This clause identifies what are levy debts and is intended
to assist in the pursuit of outstanding levies by the Commonwealth. Levy debt
is intended to include the principal amount and any amount of late payment
penalty outstanding. Note that upon recovery of the debt the obligation to
remit the levy ceases.
Clause 107 Levy debts are debts due to the
Commonwealth
262. This clause makes levy debts as debts due to the
Commonwealth and allows the Commonwealth to take action at any point in the levy
chain to recover unpaid levy or levy that has not been remitted.
Clause 108 Recovery of levy debts
263. This clause allows
the Commonwealth to take action to pursue levy debts in the appropriate
arena.
Clause 109 Commonwealth may collect money from a person who
owes money to a person
264. Subclause 109(1) states that this clause
allows the Commonwealth to collect moneys from a person who owes money to a
person who has a levy debt. This is often referred to as ‘garnishing
powers’.
265. Subclause 109(2) provides that the Secretary may give
a third party a direction to pay some or all of the available moneys to the
Commonwealth to satisfy a levy debt.
266. Subclause 109(3) prevents a
direction requiring payment to the Commonwealth before it becomes
due.
267. Subclause 109(4) creates an offence for a third party that
fails to comply with a direction of the Secretary.
268. Subclause
109(5) allows a Court to order a convicted person (above any other penalty
imposed) to pay the Commonwealth an amount up to that specified by the
Secretary’s direction.
269. Subclause 109(6) provides indemnity to
the person making the payment and caries the assumption that the payment is made
with the authority of all persons concerned.
270. Subclause 109(7) and
(8) provides for the Secretary to immediately give notice to the party concerned
where any levy debt or part of a levy debt is discharged before any payment is
made by the third party.
271. It is intended that, as far as possible,
the Secretary or his delegate will, prior to providing the notice, ensure that
the funds received for the purpose of discharge of any part of the debt are
fully transferred and not recoverable under any action taken against the
Commonwealth.
272. Subclause 109(9) outlines the circumstances where
money is owed to a third person for the purposes of this clause and is intended
to include any monies owed or retained on account of the liable person
irrespective of any conditions of payment.
Division 8 - Information – gathering powers
273. The purpose and intent of this division is to enable authorised
persons to audit records and obtain information to assist in the identification
of levy liability, outstanding levy debts or incorrect levy payments. The
provisions contained in this division are based on provisions in the Primary
Industries Levies and Charges Collection Act 1991 to assure consistency and
continuity of collection regimes.
Clause 110 Power to call for returns
or information
274. This clause is intended to provide powers for
authorised officers to obtain information relevant to the collection of the
dairy adjustment levy. The clause also provides penalties for failing to comply
with notices exercising that power.
275. Subclause 110(1) provides an
authorised person, who must be an APS employee authorised by the Secretary under
the provisions of clause 125, with the power to call for information by notice
and require, under Subclause 110(1)(a) that the notice is, within a reasonable
time, answered and the return or information called for is supplied. Subclause
110(1)(b) provides that the return or information is verified by statutory
declaration.
276. Subclause 110(2) creates an offence for contravention
of a notice issued under this provision.
277. Subclause 110(3) provides
that upon conviction of an offence of failing to comply with a notice to supply
a return or information the Court may direct that the return or information is
supplied within a specified time. Subclause 110(4) provides a further offence
in the same terms as subclause 110(2) for failing to comply with the Court
direction.
Clause 111 Regulations may require the giving of returns or
information
278. This clause provides regulations concerning the
contents and requirements of returns or information relating to the levy.
279. Subclause 111(1) outlines those subject to the regulations.
280. Subclause 111(2) allows the regulations to provide penalties for
offences against those regulations with penalties up to 50 units. Subclause
111(3) allows for a Court upon conviction to require the person to provide the
return or information. Subclause 111(4) makes it an offence to contravene a
Court direction.
Clause 112 Self-incrimination
281. This
clause provides for a safeguard against self-incrimination for requirements
under Division 8. It is not the intention of this clause to extend that
safeguard outside of the scope of Division 8.
282. Subclause 112(1)
provides that a requirement to submit a return or information is not excused on
the grounds of self-incrimination. However, protection is given by subclause
112(2) against self incrimination in criminal proceedings by:
(i) information, document or thing obtained under the provisions of this
Division except for proceedings under the provisions of clauses 110 or 111
relating to the submitting of returns, or information; or
(ii) Clause 133 or
134 relating to providing false or misleading information; or
(iii) providing false or misleading documents that relate to the
requirements of Division 8.
283. Note that this clause is subject to
amendment once the Criminal Code(Theft, Fraud, Bribery and Related Offences)
Bill 1999 is passed by Parliament.
Division 9 - Access to premises
284. This division provides access to premises by authorised officers and
includes requirements to assist and refrain from hindering or obstructing that
access. The overall intent of the Division is to provide powers to enable the
audit process to proceed without affording an unreasonable burden on businesses
involved in the collection process. The provisions contained in this division
are based on provisions in the Primary Industries Levies and Charges
Collection Act 1991 to assure consistency and continuity of collection
regimes.
Clause 113 Powers of authorised person in relation to
premises
285. This clause provides powers to authorised officers in
relation to entering premises and their subsequent
actions.
286. Subclause 113(1) allows an authorised officer to enter
premises either with consent or in accordance with a warrant issued under the
provisions of clause 116 for the purpose of audit and/or investigation in
relation to compliance of the collection of Dairy Adjustment Levy. It is not
the intent of this subclause that entry requires the presence at the entering of
the authorised person or thereafter of the person giving the consent.
287. Subclause 113(2) provides authority for an authorised officer who
has entered premises to (a) search, examine and take stock of any leviable milk
product and (b) search, inspect, examine, take extracts from, and make copies
of, any examinable documents which includes any record or document stored or
maintained in any medium including electronic or computer
records.
Clause 114 Obstruction of authorised person acting under a
warrant
288. This clause is intended to prevent hindrance or
obstruction of an authorised person exercising the powers conferred under clause
113 with the authority of a warrant issued under clause 116 and provides a
penalty of 30 units. It is intended that this provision be extended to any
person who hinders or obstructs the authorised person no matter what their
relationship is to the premises or even if no such relationship exists.
Clause 115 Persons to assist authorised persons acting under a
warrant
289. This clause requires that the occupier or the person in
charge of premises entered by an authorised person exercising powers under the
provisions of clause 113 and under the authority of a warrant under clause 116
must, upon request, provide reasonable assistance to the authorised person in
exercising those powers. The intent is that provision of reasonable assistance
includes, amongst other things, access to or extraction of records from all
mediums of storage including computer storage. Further, it is the intent of
this clause that the person in charge includes the person who has overall legal
responsibility for the operations of the establishment (such as an owner or
lessee) as well as the person in charge at that time of the whole premises, part
of the premises, an operation within those premises or part of an operation in
those premises.
Clause 116 Warrant to enter
premises
290. This clause enables the issuing of a warrant for an
authorised person to enter premises and exercise powers under this part. The
intent of the warrant is to enable authorised officers to ensure the
requirements of this part are adhered to and protect the interests of the
Commonwealth, the industry as a whole and the levy funds.
291. Subclause
116(1) enables a magistrate if satisfied by the application made by an
authorised person on oath that (a) there are reasonable grounds for believing
that there are on nominated premises (i) any leviable milk products or (ii)
examinable documents and that (b) the warrant is reasonably required to
ascertain if a person is contravening or has contravened a provision of the
collection of dairy adjustment levy, to issue a warrant for the authorised
person to enter the premises. Subclauses 116(1)(c) and (d) provide for the
authorisation of such assistance and force as is necessary and reasonable to
effect the entry and to give the warrant capability to be acted upon within
specific times or at any time.
292. Subclause 116(2) requires that the
warrant specifies (a) the powers exercisable under subclause 113(2) by the
authorised person, namely, search, examine and take stock of any leviable milk
product and search, inspect, examine, take extracts from, and make copies of,
any examinable documents. And (b) the day at which the warrant expires not
being more than 14 days after issue.
Clause 117 Identity
cards
293. This clause relates to the provision and use of identity
cards by authorised officers.
294. Subclause 117(1) provides that the
Secretary may issue an identity card to an authorised
officer.
295. Subclause 117(2) requires what must be contained on an
identity card and that the card must be in a format approved by the Secretary.
296. Subclause 117(3) provides a penalty of one unit if a person who
ceases to be an authorised person retains an identity
card.
297. Subclause 117(4) requires an authorised person to produce
their identity card to the occupier or person in charge of premises that they
propose to enter unless entering under the authority of a warrant issued under
clause 116. If the authorised person fails to meet this requirement then the
authorised person looses his entitlement to enter the premises.
298. It
is not the intent of this clause that the entitlements conferred upon an
authorised person under clause 113 are removed where an invitation is given to
an authorised person by a person familiar with, or accepting the authorised
person or their authority, before the identity card can be shown. For example
where an authorised officer repeatedly has cause to enter a premises and is
familiar to the person or persons with whom he is dealing or, where consent is
given remotely, for example by correspondence, to an authorised officer to enter
premises unaccompanied.
Division 10 - Evidentiary certificates
299. This division provides a mechanism whereby levy debts can be
identified at a particular point and to give that identification of debt some
authority. The intent is to aid in the recovery of unpaid or unremitted levy
and to, as far as possible, remove those in the supply chain who have complied
with their levy liabilities and requirements.
Clause 118 Evidentiary
certificates
300. This clause provides that, the Secretary may issue
a certificate stating that a person is liable to pay levy, and the particulars
of that liability. An evidentiary certificate may also be issued stating that a
person has contravened a levy remission provision and the particulars of that
contravention.
Clause 119 Evidentiary effect of
certificate
301. This clause provides that an evidentiary certificate
is prima facie evidence of the matters outlined in the certificate in any civil
proceedings.
Division 11 - Miscellaneous
Clause 120 Designated small remitters
302. The collection
and compliance costs that the levy will impose on some levy remitters will be
near, if not greater than the amount of levy they will collect. This clause
provides for such small remitters to be recognised, enabling them to remit the
levy on an annual, rather than a monthly basis. The declaration to recognise a
remitter as a designated small remitter applies for the specified financial year
only.
Clause 121 Designated small levy-payers
303. The
collection and compliance costs that the levy will impose on some levy payers
and the collection agent will be near, if not greater than the amount of levy
for which the levy payer will be liable. This clause provides for such small
levy payers to be recognised, enabling them to pay the levy on an annual, rather
than a monthly basis. The declaration to recognise a levy payer as a designated
small levy payer applies for the specified financial year only.
Clause
122 Refund of overpayments
304. This clause requires the Commonwealth
must refund amounts of levy or late payment penalty that have been
overpaid.
Clause 123 Refund of levy
305. This clause allows
regulations to be made to provide for procedures for the refund of the levy.
Clause 124 Methods by which levy may be paid or
remitted
306. This clause enables regulations to be made for the
payment or remitting of levy to the Commonwealth and includes a provision to
utilise electronic funds transfer where applicable.
Clause 125
Authorised persons
307. This clause enables the Secretary to
authorise persons to be authorised persons for the provisions of this part
dealing with the collection of dairy adjustment levy.
308. Subclause
125(1) permits the Secretary to authorise an APS employee to be an authorised
person for one or all of the relevant applications of the Act.
309. It
is the intended that the compliance powers are not exercised frivolously and are
invested in persons who are suitably experienced, accountable and, subject to
the conduct and disciplinary provisions of the Australian Public Service.
Authorised officers are to be suitably trained and experienced in procedures and
protocols and the effective professional application of those powers that have
not, and do not, bring the Commonwealth or the relevant industry into disrepute.
It is the Commonwealth and the Secretary’s intention to maintain that
standard.
310. Subclause 125(3) permits the Secretary to authorise a
person employed by or in the service of a collection organisation to be an
authorised person only for the purposes of clause 110, that is, to call for
returns or information.
Clause 126 Publication of information about
levy
311. This clause enables an authorised person to publish the
details of a person who has paid or is liable to pay levy or penalty or the name
and address of a collection agent, a sub agent or collecting organisation. An
authorised person will also be able to provide aggregate information on the
amount of levy received or receivable or aggregate details regarding leviable
milk products subject to the levy to the Australian Dairy Industry Council and
to a person to whom the Secretary has granted access to the information.
312. Subclause 126(2) prevents the publication of information that would
allow an amount of levy or late payment penalty paid or payable by a particular
person to be identified with that person (or his or her Estate).
313. A
fee for providing any information may be charged. This fee will not be subject
to taxation.
Clause 127 Delegation by Secretary
314. This
clause enables the Secretary to delegate to a senior officer all or any of his
powers under this part dealing with the collection of the Dairy Adjustment Levy,
except the power to appoint authorised persons. The clause also stipulates that
the appointed delegated is subject to directions given by the Secretary.
Clause 128 Reconsideration and review of
decisions
315. This clause enables a person affected by a decision to
request a review of a decision by the Secretary. This clause only applies to
decisions in relation to the extinguishing of late payment penalties.
316. Subclause 128(1) provides that a person dissatisfied with a
decision may within 28 days or within a further period allowed by the Secretary,
request in writing that the Secretary reconsider the decision. Subclause 128(2)
requires that the reasons for making the request must be set out in the
request.
317. Subclause 128(3) provides that within 45 days of receiving
the request the Secretary must reconsider the decision and make a decision to
either uphold the original decision, vary the decision or revoke the decision.
The Secretary is then required under subclause 128(4) to advise the requesting
person in writing the result of the decision including the reasons for the
decision.
318. Subclause 128(5) allows an application to be made to the
Administrative Appeals Tribunal for review of the Secretary’s decision
under subclause 128(3).
319. Subclause 128(6) requires that a person
who makes a relevant decision must give in writing to a person affected by that
decision a statement outlining their options for review of the decision under
this clause and or the Administrative Appeals Tribunal Act 1975. However,
subclause 128(8) provides that a failure to comply with subclause 128(6) does
not invalidate the decision
Clause 129 Commonwealth not liable to
levy
320. This clause is a standard clause indicating that the
Commonwealth is not liable to pay levy on leviable milk products, as the
Commonwealth cannot by law be made liable to taxation by the Commonwealth.
321. However, a notional liability will exist for a Department of State,
a Department of the Parliament, a Statutory Agency or an Authority of the
Commonwealth. The Minister for Finance may give written direction instructions
as to how this notional liability may be paid by the transfer of money within an
account, or between accounts, operated by the Commonwealth, or an Agency or
Authority of the Commonwealth.
Clause 130 Application of Criminal Code
322. This clause provides that chapter 2 of the Criminal Code
applies to all offences against this schedule. Chapter 2 of the Criminal
Code was enacted in 1995 and codifies the general principles of criminal
responsibility. Chapter 2 is being progressively applied to all Commonwealth
offences.
Clause 131 False or misleading evidence
323. Clause 131 creates
an offence where a person (either a natural person or a body corporate)
knowingly gives evidence to the DAA (refer clause 37) which is false or
misleading in a material particular. The maximum penalty that can be imposed on
a natural person for the offence is 12 months imprisonment. Pursuant to
subsection 4B(2) Crimes Act 1914 a court may impose a pecuniary penalty
on a natural person, in addition to or instead of, a term of imprisonment. The
maximum pecuniary penalty that a court may impose on a natural person is $6,600.
Where a body corporate is convicted of the offence a court may impose a maximum
pecuniary penalty of $33,000; namely an amount not exceeding 5 times the maximum
pecuniary penalty that could be imposed on a natural person convicted of the
same offence.
Clause 132 False or misleading statements in claims
324. There are two types of offences created by this clause. The more
serious offence (subclause 132(1)) requires proof that the defendant knew the
statement made in, or in connection with, a claim for a payment right was
false or misleading or knew that the statement omitted any matter or thing
without which the statement is misleading. It provides for a maximum penalty of
12 months imprisonment (but see the paragraph on clause 131 concerning pecuniary
penalties that may be imposed on natural persons and bodies corporate). The
other offence (subclause 132(4)) only requires proof that the defendant was
reckless as to whether the statement made in, or in connection with, the claim
for a payment right was false or misleading or was reckless as to whether
the statement omitted any matter or thing without which the statement is
misleading. It provides for the maximum penalty of 6 months imprisonment (but
see the paragraph on clause 131 concerning pecuniary penalties that may be
imposed on natural persons and bodies corporate). Both offences provide for a
defence where the defendant can point to evidence that the false or misleading
statement in the claim was not false or misleading in relation to a material
particular (subclauses 132(2), (3), (5) and (6)). It would be too onerous to
require the prosecution to prove that the defendant knew or was reckless as to
materiality. However the proposed defence should ensure that materiality is
taken into account.
325. Proposed subclause 132(7) provides for
alternative verdicts where it becomes apparent during the hearing that the
defendant is guilty of the second offence rather than the first offence.
Clause 133 False or misleading information
326. Clause 133 creates an offence where a person knows that the
information the person has provided is false or misleading or that the
information is misleading if a matter or thing is omitted. The information must
be given to a person who is exercising powers or performing functions under, or
in connection with, the DSAP scheme or this Schedule, or in compliance or
purported compliance with the DSAP scheme or this Schedule. The maximum penalty
is 12 months imprisonment (but see the paragraph on clause 131 concerning
pecuniary penalties that may be imposed on natural persons and bodies
corporate). Again there is a defence where the information is not false or
misleading in a material particular (subclauses 133(2) and (3)). The clause
does not contain a less serious recklessness offence. Although clause 132
(false or misleading statements in claims) contains a recklessness offence that
is appropriate where the person is involved in completing a claim, but it would
not be appropriate to extend it to this offence.
Clause 134 False or misleading documents
327. Clause 134
creates an offence where a person produces a document to another person, knowing
it to be false or misleading and it is produced in compliance or purported
compliance with the DSAP scheme or this Schedule. The maximum penalty matches
the other offences – 12 months imprisonment (but see the paragraph on
clause 131 concerning pecuniary penalties that may be imposed on natural persons
and bodies corporate). Subclause 134(2) contains a defence where the document
is not false or misleading in a material particular. Subclause 134(3) contains
a defence often found in this type of offence where the document has been
identified by the person producing the document as being false or misleading in
a material particular.
328. Item 18 provides for membership of the DAA prior to the commencement of
the Bill. To ensure payments under the DSAP scheme flow to farmers as
soon as possible from 1 July 2000, a committee, to be known as the Dairy
Adjustment Panel, will be established to commence the work of the DAA (eg the
creation of the database referred to in subclause 22(3)). However, to ensure
continuity between the two bodies, this item provides that the members appointed
to the Panel will be automatically appointed to the DAA. It should be noted
that the qualification requirements for members of the Panel are identical to
those for the DAA outlined in clause 59.
SCHEDULE 2 – AMENDMENT OF OTHER ACTS
Bankruptcy Act 1966
329. Item 1 provides for
proposed paragraph 116(2)(mcb) to protect the dairy exit payments under
the dairy exit payment (DEP) scheme from bankruptcy to ensure they
are treated consistently with re-establishment grants under the re-establishment
grant scheme.
330. Items 2 and 3 are related amendments flowing from Item
1.
Farm Household Support Act 1992
331. Item 4
inserts the definition of dairy exit payment into subsection
3(2).
332. Item 5 inserts the definition of DEP scheme into
subsection 3(2).
333. Item 6 provides that the definition of relevant
Secretary under subsection 4(4)(b) includes dairy exit
payments.
334. Item 7 provides for a proposed amendment to the
Objects of the Act to ensure inclusion of the DEP scheme is not
inconsistent with those Objects.
335. Item 8 provides for proposed
Section 52C to allow the Minister to formulate the DEP scheme and
associated dairy exit payments. Proposed subsection 52(C)(2)
specifically provides for qualification requirements, applications, calculation
of the payment and method of payment. The DEP scheme will cease on 30
June 2002 with farmers having the additional 12 months available to complete
sale of the farm.
336. Item 9 provides for a proposed consequential
amendment to ensure that the delegation of powers by the Secretary under section
53 in relation to the Act also includes the DEP scheme.
337. Item
10 provides for a proposed consequential amendment to ensure that the delegation
of powers by the Secretary under section 53A in relation to the Act also
includes the DEP scheme.
338. Item 11 provides for proposed
paragraphs 54(1)(g) and 54(1)(h) to give the Secretary general power to obtain
information in relation to a dairy exit payment.
339. Item 12
provides for a proposed amendment to section 55 to provide that dairy exit
payments, like the re-establishment grants under the re-establishment grant
scheme, are inalienable, whether by way of, or in consequence of, sale,
assignment, execution, charge, bankruptcy or otherwise.
340. Item 13
provides for proposed subsection 56(3) to allow recovery of dairy exit
overpayments as a debt due to the Australian Dairy Corporation.
341. Item
14 provides for proposed subsection 57(5) to provide that dairy exit
payments are to be made out of the DSAF.
Income Tax Assessment
Act 1997
342. Item 15 provides for proposed subparagraph
118-37(1)(e) to provide that dairy exit payments, like the
re-establishment grants under the re-establishment grant scheme, are exempt from
capital gains tax.
Remuneration Tribunal Act 1973
343. Item 16 provides for
proposed paragraph 7(9)(ab) to allow for remuneration or allowances payable to
members of the DAA to be paid out of the DSAF rather than out of the
Consolidated Revenue Fund.
Social Security Act 1991
344. Item 17 inserts the definition Farm Household Support Act
1992 in subsection 23(1) as including the DEP scheme. The key
provision affected as a result of this amendment is the definition of
‘officer’ under subsection 23(1) such that a decision of an officer
under the Farm Household Support Act 1992 now includes the DEP scheme.
The net effect of this amendment is that the review process available to
recipients of a dairy exit payment will be the same as the review process
for recipients of the re-establishment grants under the re-establishment grant
scheme.