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Act No. 41 of 1994 as amended, taking into account amendments up to Act No. 13 of 2003
An Act to provide for the collection of a levy on agricultural and veterinary chemical products, and for related purposes
Registered 18 Nov 2009
Start Date 08 Oct 2003
End Date 29 Jul 2004

Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994

Act No. 41 of 1994 as amended

This compilation was prepared on 8 October 2003
taking into account amendments up to Act No. 13 of 2003

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation...................................................................................... 1

4............ Extension to certain external Territories............................................. 7

5............ Act to bind Crown.............................................................................. 7

5A......... Application of the Criminal Code...................................................... 7

6............ Power of NRA to make certain determinations.................................. 7

Part 2—Liability for levy                                                                                                    9

8............ Liability for levy in respect of disposals during 1994 and later years 9

9............ Liability for levy in respect of disposals during first 6 months of 1995 or of a later year      9

11.......... Amount of levy imposed in respect of disposals during 1994 or a later year         10

12.......... Amount of levy imposed in respect of disposals during the first 6 months of 1995 or of a later year   11

13.......... Payment of levy............................................................................... 12

14.......... Late payment penalty...................................................................... 12

Part 3—Calculation or assessment of levy                                                             13

15.......... Calculation of levy by person liable................................................. 13

16.......... Assessment of levy by NRA........................................................... 14

17.......... Fresh assessments............................................................................ 16

18.......... Reconsideration and review of assessments..................................... 16

Part 4—Enforcement                                                                                                           18

19.......... Levy and late payment penalty recoverable as debts....................... 18

20.......... NRA may require information about disposals of chemical products 18

21.......... Searches to monitor compliance with Act........................................ 19

22.......... Offence‑related searches and seizures.............................................. 20

23.......... Power of inspector to require information or documents................. 21

24.......... Offence‑related warrants.................................................................. 21

25.......... Announcement before entry............................................................. 22

26.......... Details of warrant to be given to occupier........................................ 23

27.......... Use of equipment to examine or process things............................... 23

28.......... Use of electronic equipment at premises.......................................... 24

29.......... Compensation for damage to electronic equipment.......................... 25

30.......... Copies of seized things to be provided............................................ 26

31.......... Return of things that are seized........................................................ 26

32.......... Court of summary jurisdiction may permit a thing to be kept......... 27

Part 5—Miscellaneous                                                                                                       28

33.......... Administrative Appeals Tribunal may review certain decisions by NRA              28

34.......... Self‑incrimination to be a reasonable excuse for non‑compliance with requirement                28

35.......... Copying of documents..................................................................... 28

36.......... Applicant for registration of chemical product to keep records....... 29

38.......... Exemptions from liability for damages............................................. 29

39.......... Regulations....................................................................................... 29

Notes                                                                                                                                            31


An Act to provide for the collection of a levy on agricultural and veterinary chemical products, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994.

2  Commencement [see Note 1]

                   This Act commences on the same day as the Agricultural and Veterinary Chemicals Act 1994.

3  Interpretation

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

agricultural chemical product has the same meaning as in the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.

assessment means an assessment under section 16.

Australia includes any external Territories that are participating Territories.

Australian product means a chemical product that has been manufactured in Australia, but does not include an imported product.

chemical product means an agricultural chemical product or a veterinary chemical product but does not include such a product that, under the regulations, is exempt from levy.

document includes a book or other record.

give information includes make a statement.

imported product means a chemical product that has been imported into Australia (whether or not the product was manufactured in Australia).

inspector means:

                     (a)  a person appointed as an inspector for the purposes of this Act under subsection 69F(1) of the Agricultural and Veterinary Chemicals (Administration) Act 1992; or

                     (b)  an officer of the Public Service of a State or Territory to whom an arrangement referred to in subsection 69F(2) of that Act applies for the purposes of this Act.

interested person, in relation to a registered chemical product, means:

                     (a)  subject to paragraphs (b), (c) and (d), the person (the original applicant) who applied for the registration or, in the case of a chemical product whose registration has been renewed, applied for the renewal, or the last renewal, as the case may be, of the registration; or

                     (b)  subject to paragraphs (c) and (d), if the original applicant has entered into a contract with another person in relation to the product under which, or as a result of which, the other person will or may apply to the NRA to have the other person’s name entered in the relevant particulars in relation to the product, or to have a label approved in relation to containers for the product, and the other person’s name is entered in those relevant particulars, or such a label is approved, on the application of the other person—the other person; or

                     (c)  if the person who, apart from this paragraph, would be the interested person because of paragraph (a) or (b), was an individual who has died or is an individual whose affairs are being lawfully administered by another person—the legal personal representative of the individual or the person administering his or her affairs, as the case may be; or

                     (d)  if the person who, apart from this paragraph, would be the interested person because of paragraph (a) or (b), was a body corporate—a successor in law of that body corporate.

jurisdiction means:

                     (a)  a State; or

                     (b)  the participating Territories.

late payment penalty means late payment penalty payable under section 14.

leviable disposal, in relation to a chemical product, means:

                     (a)  if the product is an Australian product:

                              (i)  if the product is disposed of in Australia by the manufacturer—that disposal of the product; or

                             (ii)  if the product is applied by the manufacturer to the manufacturer’s own use—that application of the product; or

                     (b)  if the product is an imported product:

                              (i)  if the product is disposed of in Australia by the importer—that disposal of the product; or

                             (ii)  if the product is applied by the importer to the importer’s own use—that application of the product.

leviable value, in relation to a leviable disposal of a chemical product, means:

                     (a)  if the leviable disposal was a sale by wholesale of the product by the manufacturer or importer and the parties to the sale were dealing at arm’s length—the amount received by the manufacturer or importer in respect of the sale; or

                     (b)  otherwise—the notional wholesale value of the product at the time of the disposal.

levy means levy, imposed by any Act, that is payable under this Act.

manufacture includes formulate.

notional wholesale value, in relation to a chemical product at a particular time, means the amount that the NRA determines would have been received:

                     (a)  if the product is an Australian product—by the manufacturer; or

                     (b)  if the product is an imported product—by the importer;

in respect of the product if, at that time, the product had been sold by the manufacturer or importer, as the case may be, by wholesale to a person with whom the manufacturer or importer was dealing at arm’s length.

NRA means the National Registration Authority for Agricultural and Veterinary Chemicals established by the Agricultural and Veterinary Chemicals (Administration) Act 1992.

occupier, in relation to any premises or a part of any premises, means the person in occupation, charge or control of the premises or of that part of the premises, as the case may be.

participating Territory has the same meaning as in the Agricultural and Veterinary Chemicals Act 1994.

premises includes any place (whether enclosed or built on or not), including a place situated under ground or under water, and, in particular, includes:

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

                     (b)  any structure, whether a fixed structure, or a moveable structure such as a tent, and whether on land or the bed of any waters or floating on any waters; and

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

prescribed date for payment, in relation to any levy that is payable, means:

                     (a)  except if the levy is payable because of an assessment:

                             (ii)  if the levy is payable under subsection 8(1)—31 July next following the end of the relevant calendar year; or

                            (iii)  if the levy is payable under subsection 9(1)—the date in the relevant calendar year that is prescribed by the regulations for the purposes of this paragraph or, if no date is so prescribed, 1 September in that year; or

                     (b)  if the levy is payable because of an assessment—the date stated in the notice of assessment to be the date by which the levy is to be paid.

rate of levy has the meaning given by section 11 or 12, as the case requires.

registered, in relation to a jurisdiction, means registered under a registration law of the jurisdiction and, if such a registration law is an Agvet Code of the jurisdiction, includes a listed registration under Part 2A of that Code.

registration law, in relation to a jurisdiction, means:

                     (a)  if there is an Agvet Code of the jurisdiction that is in force—Part 2 or 2A of that Code, including (to avoid doubt) Part 2 of that Code as it has effect because of the operation of Part 11 of that Code; or

                     (b)  otherwise—a prescribed law of the jurisdiction;

and also has an extended meaning as mentioned in subsections (2) and (2A).

relevant calendar year means:

                     (a)  in relation to levy payable under subsection 8(1)—the calendar year in which the leviable disposals in respect of which the levy is payable took place; or

                     (b)  in relation to levy payable under subsection 9(1)—the calendar year in the first 6 months of which the leviable disposals in respect of which the levy is payable took place.

relevant particulars, in relation to a registered chemical product, has the same meaning as in the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.

State includes the Northern Territory.

thing includes a document.

total leviable value, in relation to a chemical product for a particular period, means the sum of the leviable values in respect of the leviable disposals of the product that took place anywhere in Australia during that period.

veterinary chemical product has the same meaning as in the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994.

             (2)  If, at any time or during any period, a permit is in force in respect of a chemical product under Part 7 of the Agvet Code of a State or of the participating Territories (including, to avoid doubt, a permit that is taken to be in force under Part 7 of such a Code because of the operation of Part 11 of the Code), this Act has effect as if:

                     (a)  the product were registered under Part 2 of the Code at that time or during that period; and

                     (b)  a reference to the person who applied for the registration of the product were a reference to the person who applied for the permit.

          (2A)  If, at any time or during any period, a permit is in force in respect of a chemical product under a prescribed law referred to in paragraph (b) of the definition of registration law in subsection (1), this Act has effect as if:

                     (a)  the product were registered under that law at that time or during that period; and

                     (b)  a reference to the person who applied for the registration of the product were a reference to the person who applied for the permit.

          (2B)  If:

                     (a)  a chemical product was registered at a particular time or during a particular period under a law that is prescribed for the purposes of paragraph (b) of the definition of registration law in subsection (1); and

                     (b)  the product is declared by the regulations to have been, or to be, an excluded chemical product for the purposes of this Act from a time referred to in the regulations that is earlier than that particular time or earlier than the commencement of that particular period;

the product is taken, for the purposes of this Act, not to have been registered under that law at that time or during that period, as the case may be.

             (3)  If a change occurs in the legal or equitable ownership of a chemical product, the product is taken to be disposed of at the time of the change by the person who was the legal owner of the product immediately before the change.

             (4)  If a chemical product is applied by a person to the person’s own use, the product is taken to be disposed of by the person when it is so applied.

4  Extension to certain external Territories

                   This Act extends to the external Territories that are participating Territories.

5  Act to bind Crown

             (1)  This Act binds the Crown in all its capacities.

             (2)  Nothing in this Act renders the Crown in any capacity liable to be prosecuted for an offence.

5A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

6  Power of NRA to make certain determinations

             (1)  The NRA may do any one or more of the following:

                     (a)  by notice in writing to the manufacturer or importer of a chemical product, determine the amount that would have been received by the manufacturer or importer in respect of the product at a particular time as mentioned in the definition of notional wholesale value in subsection 3(1);

                     (b)  by notice published in the Gazette, direct that subparagraph (a)(ii) of the definition of prescribed date for payment in subsection 3(1) is to have effect, in relation to levy payable in a particular calendar year stated in the notice, as if the reference to 31 July were replaced by a reference to another date in that year (whether earlier or later than 31 July in that year) stated in the notice;

                     (c)  by notice published in the Gazette, direct that, for the purposes of this Act, the amount of any levy that, apart from the direction, would be required to be paid by a particular date is taken to have been paid by that date if the levy is paid by instalments worked out in accordance with the notice on such dates as are stated in the notice.

             (2)  A determination or direction made or given under subsection (1) has effect according to its terms.


 

Part 2Liability for levy

  

8  Liability for levy in respect of disposals during 1994 and later years

             (1)  If a chemical product was registered in any jurisdiction during the whole or any part of the last 6 months of the year beginning on 1 January 1994 or of the last 6 months of a later calendar year (whether or not the product was also registered in that jurisdiction or any other jurisdiction during the whole or any part of the first 6 months of the year concerned), then, subject to subsection (2), levy is payable in respect of leviable disposals of the product that took place anywhere in Australia at any time during that year.

             (2)  Levy is not payable under subsection (1) in respect of leviable disposals of a particular chemical product during a calendar year if the total leviable value in respect of the product for that calendar year is less than $100,000.

             (3)  Subject to subsection (4), the interested person in relation to the chemical product is liable to pay the levy.

             (4)  If the chemical product was registered as mentioned in subsection (1) in more than one jurisdiction and different persons are the interested persons in relation to the product in different jurisdictions, those persons are jointly and severally liable to pay the levy.

9  Liability for levy in respect of disposals during first 6 months of 1995 or of a later year

             (1)  If a chemical product:

                     (a)  was registered in any jurisdiction during the whole or any part of the first 6 months of the year beginning on 1 January 1995 or of a later calendar year; and

                     (b)  was not registered in any jurisdiction on 1 July in the year concerned;

then, subject to subsection (2), levy is payable in respect of leviable disposals of the product that took place anywhere in Australia at any time during those 6 months.

             (2)  Levy is not payable under subsection (1) in respect of leviable disposals of a particular chemical product during the first 6 months of a calendar year if the total leviable value in respect of the product for those 6 months is less than $50,000.

             (3)  Subject to subsection (4), the interested person in relation to the chemical product is liable to pay the levy.

             (4)  If the chemical product was registered as mentioned in subsection (1) in more than one jurisdiction and different persons are the interested persons in relation to the product in different jurisdictions, those persons are jointly and severally liable to pay the levy.

11  Amount of levy imposed in respect of disposals during 1994 or a later year

             (1)  Subject to subsection (2), the amount of the levy that is payable under section 8 in respect of leviable disposals of a particular chemical product during a particular calendar year is the amount worked out using the formula:

where:

rate of levy means the percentage prescribed by the regulations for the purposes of this section in respect of that year.

          (1A)  The regulations may prescribe a rate of levy in respect of chemical products having a listed registration under Part 2A of the Agvet Code of a jurisdiction that is a lower rate than the rate of levy prescribed in respect of chemical products registered under Part 2 of that Code.

             (2)  The total of the amounts of the levy that are payable under section 8 in respect of leviable disposals of a particular chemical product during a particular calendar year is not to exceed:

                     (a)  subject to paragraph (b)—$19,000; or

                     (b)  if another amount is prescribed by the regulations for the purposes of this paragraph in respect of that year—that other amount.

12  Amount of levy imposed in respect of disposals during the first 6 months of 1995 or of a later year

             (1)  Subject to subsection (2), the amount of the levy that is payable under section 9 in respect of leviable disposals of a particular chemical product during the first 6 months of a particular calendar year is the amount worked out using the formula:

where:

rate of levy means the percentage prescribed by the regulations for the purposes of this section in respect of those 6 months.

          (1A)  The regulations may prescribe a rate of levy in respect of chemical products having a listed registration under Part 2A of the Agvet Code of a jurisdiction that is a lower rate than the rate of levy prescribed in respect of chemical products registered under Part 2 of that Code.

             (2)  The total of the amounts of the levy that are payable under section 9 in respect of leviable disposals of a particular chemical product during the first 6 months of a particular calendar year is not to exceed:

                     (a)  subject to paragraph (b)—$9,500; or

                     (b)  if another amount is prescribed by the regulations for the purposes of this paragraph in respect of those 6 months—that other amount.

13  Payment of levy

                   A person who is liable to pay levy in respect of a chemical product must pay the levy on or before the prescribed date for payment of that levy.

Note:          If any levy payable in respect of a chemical product is not paid, the Agvet Codes provide that the NRA may refuse to renew the registration of the product.

14  Late payment penalty

             (1)  If any levy payable by a person under section 8 or 9 in respect of leviable disposals of a particular chemical product is not wholly paid on or before the prescribed date for payment of the levy, the person immediately becomes liable to pay a late payment penalty of:

                     (a)  if the amount of the unpaid levy in respect of the product is not more than $10,000—$200; or

                     (b)  if the amount of the unpaid levy in respect of the product is more than $10,000—$400.

             (2)  The NRA may waive the whole or a part of the liability to pay an amount of late payment penalty.

Note:          If any late payment penalty payable in respect of a chemical product is not paid, the Agvet Codes provide that the NRA may refuse to renew the registration of the product.


 

Part 3Calculation or assessment of levy

  

15  Calculation of levy by person liable

             (1)  If it appears to the NRA that a person may be liable to pay levy in respect of leviable disposals of a chemical product that took place during a particular period, the NRA may, not earlier than the end of that period, by written notice given to the person:

                     (a)  tell the person the rate of levy payable in respect of chemical products for that period; and

                     (b)  require the person:

                              (i)  to calculate the total leviable value (if any) in respect of the product for that period and the amount of the levy (if any) that is payable; and

                             (ii)  within a period of not less than one month that is stated in the notice, to notify the NRA in writing of the results of the calculations and the basis on which the calculations were made.

             (2)  A person must not refuse or fail to comply with a requirement made under subsection (1).

Penalty:  30 penalty units.

          (2A)  Subsection (2) does not apply if the person has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3) of the Criminal Code.

          (2B)  An offence under subsection (2) is an offence of strict liability.

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

             (3)  Subject to subsection (6), a person who has given to the NRA, under subparagraph (1)(b)(ii) or this subsection, a notification in writing in respect of the total leviable value (if any) in respect of a chemical product for a period and the amount of the levy (if any) that is payable may make a further calculation of that value and amount in substitution for the value and amount last so calculated and notify the NRA of the results of the further calculations and the basis on which the further calculations were made.

             (4)  Subject to subsection (6), an amount notified by a person to the NRA in accordance with this section as being the amount calculated by the person to be the levy payable in respect of a chemical product for a period or, if more than one amount has been so notified for that period, the amount last notified, is taken to be the amount of levy so payable.

             (5)  Subject to subsection (6), if a notification by a person to the NRA in accordance with this section or, if more than one notification has been made, the last such notification, states that the calculations made by the person show that no levy is payable in respect of a particular chemical product for a period, no levy is payable by the person in respect of that product for that period.

             (6)  Subsections (3), (4) and (5) do not apply in relation to a chemical product in respect of a period if the NRA has made or makes an assessment as to whether any levy is payable in respect of that product for that period.

16  Assessment of levy by NRA

             (1)  The NRA may make an assessment as to whether any levy is payable in respect of leviable disposals of a particular chemical product during a particular period.

             (2)  An assessment may be made before, on or after the date that, apart from the assessment, would be the prescribed date for payment of the levy and whether or not any payment has been made on account of the levy.

             (3)  An assessment is to state the total leviable value (if any) in respect of the product for the period concerned and the amount of the levy (if any) payable.

             (4)  An assessment may be based on any information in the possession of the NRA, whether obtained as a result of the making of a requirement under this Act or otherwise.

             (5)  The NRA must give written notice of an assessment:

                     (a)  if any levy is assessed to be payable—to the person who it considers is liable to pay the levy; or

                     (b)  if no levy is assessed to be payable—to the person who, if levy had been payable, it considers would have been liable to pay the levy.

             (6)  A notice of assessment must contain particulars of any determination made by the NRA under paragraph 6(a).

             (7)  If any levy is payable, the notice must state the date by which the levy is to be paid.

             (8)  The date to be so stated must not be earlier than whichever is the later of the following dates:

                     (a)  the date that, apart from the assessment, would be the prescribed date for payment of the levy;

                     (b)  the 21st day after the day on which the notice is given.

             (9)  A notice of an assessment must include a statement to the effect of section 18.

           (10)  A failure to comply with subsection (9) does not affect the validity of the assessment.

           (11)  An assessment is taken to be a decision for the purposes of the Administrative Appeals Tribunal Act 1975.

           (12)  The production of a notice of assessment, or of a document purporting to be a copy of a notice of assessment, signed on behalf of the NRA by the Chief Executive Officer of the NRA or a delegate of the Chief Executive Officer is conclusive evidence of the due making of the assessment and, except in proceedings under section 18 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct.

17  Fresh assessments

             (1)  Subject to subsection (2), if the NRA is satisfied that an assessment was incorrect, the NRA may make a fresh assessment under section 16 in substitution for the original assessment, even though levy may have been paid in respect of the original assessment.

             (2)  A fresh assessment may:

                     (a)  if the original assessment was based on false or misleading information given to the NRA or to an inspector—be made at any time; or

                     (b)  otherwise—be made only within 4 years from the date on which levy became payable under the original assessment.

18  Reconsideration and review of assessments

             (1)  A person who is affected by an assessment made by the NRA may, if dissatisfied with the assessment, by written notice given to the NRA within 21 days after the day on which the person first received notice of the assessment, or within any further period that the NRA allows, request the NRA to reconsider the assessment.

             (2)  The person must set out in the request reasons for making the request.

             (3)  Upon receipt of the request, the NRA must reconsider the assessment and, subject to subsection (4), may confirm or revoke the assessment or vary the assessment in any manner that it thinks fit.

             (4)  If the NRA does not confirm, revoke or vary an assessment before the end of 21 days after the day on which it received the request under subsection (1) to reconsider the assessment, it is taken, at the end of that period, to have confirmed the assessment under subsection (3).

             (5)  If the NRA confirms, revokes or varies an assessment before the end of the period referred to in subsection (4), it must, by written notice given to the person making the request, tell the person the result of the reconsideration of the assessment and the reasons for confirming, varying or revoking the assessment, as the case may be.

             (6)  A failure to comply with subsection (5) does not affect the validity of the confirmation, revocation or variation.

             (7)  Applications may be made to the Administrative Appeals Tribunal for review of assessments of the NRA that have been confirmed or varied under subsection (3).

             (8)  If, as a result of an application made under paragraph 33(b), the Administrative Appeals Tribunal has reviewed a determination made by the NRA under paragraph 6(a) in relation to a chemical product as at a particular time, the Tribunal is not entitled to alter the determination as so reviewed by it when it is reviewing an assessment to which the determination is relevant.

             (9)  If an assessment is taken, because of subsection (4), to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the assessment were the period beginning on the day on which the assessment is taken to be confirmed and ending on the 28th day after that day.

           (10)  If a request is made under subsection (1) in respect of an assessment, section 41 of the Administrative Appeals Tribunal Act 1975 applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for a review of the assessment.


 

Part 4Enforcement

  

19  Levy and late payment penalty recoverable as debts

             (1)  Any levy that has not been paid on or before the prescribed date for payment of the levy, or any late payment penalty that is payable, is a debt due to the Commonwealth and payable to the NRA and may be sued for and recovered by the NRA.

             (2)  The NRA must pay into the Consolidated Revenue Fund any amounts of levy or late payment penalty received by it.

20  NRA may require information about disposals of chemical products

             (1)  For the purpose of determining whether levy under section 8 is payable in respect of a chemical product for a calendar year, the NRA may, not earlier than the end of the calendar year, give written notice to any one or more of the following:

                     (a)  the person, or any of the persons, by whom any such levy would be payable;

                     (b)  if the product is an imported product and the person referred to in paragraph (a) is not, or none of the persons referred to in that paragraph is, the importer—the importer;

                     (c)  if the product is an Australian product and the person referred to in paragraph (a) is not, or none of the persons referred to in that paragraph is, the manufacturer—the manufacturer;

requiring the person to whom the notice is given to give to the NRA, within a period stated in the notice that is not less than one month after the notice is given, any information relating to the importation, manufacture or disposal of the product during the calendar year that is necessary to work out the total leviable value in respect of the product for the calendar year.

             (2)  For the purpose of determining whether levy under section 9 is payable in respect of a chemical product for the first 6 months of a calendar year, the NRA may, not earlier than 1 July in the calendar year, give written notice to any one or more of the following:

                     (a)  the person, or any of the persons, by whom any such levy would be payable;

                     (b)  if the product is an imported product and the person referred to in paragraph (a) is not, or none of the persons referred to in that paragraph is, the importer—the importer;

                     (c)  if the product is an Australian product and the person referred to in paragraph (a) is not, or none of the persons referred to in that paragraph is, the manufacturer—the manufacturer;

requiring the person to whom the notice is given to give to the NRA, within a period stated in the notice that is not less than one month after the notice is given, any information relating to the importation, manufacture or disposal of the product during those 6 months that is necessary to work out the total leviable value in respect of the product for those 6 months.

             (3)  A person must not refuse or fail to comply with a requirement made under subsection (1) or (2).

Penalty:  30 penalty units.

             (4)  Subsection (3) does not apply if the person has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3) of the Criminal Code.

             (5)  An offence under subsection (3) is an offence of strict liability.

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

21  Searches to monitor compliance with Act

             (1)  Subject to this section, to the extent that it is reasonably necessary to do so for the purpose of finding out whether levy is payable under this Act, an inspector, with any necessary help, may enter, at any time during ordinary working hours on any day, any premises that the inspector has reasonable cause to believe are premises at which any thing relating to the importation, manufacture or disposal of chemical products is kept and may do any one or more of the following:

                     (a)  search the premises and any thing found at the premises;

                     (b)  inspect any document kept at the premises;

                     (c)  seize any such document and remove it from the premises.

             (2)  An inspector may not, under subsection (1), enter premises that are a residence unless the occupier of the premises has consented to the entry.

             (3)  An inspector may not exercise any powers under subsection (1) in relation to premises if:

                     (a)  the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and

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

22  Offence‑related searches and seizures

             (1)  If an inspector has reasonable grounds for suspecting that there may be at any premises a particular thing that may be evidence of the commission of an offence against this Act, the inspector may:

                     (a)  with the consent of the occupier of the premises; or

                     (b)  under a warrant issued under section 24;

enter the premises and:

                     (c)  search the premises for the thing; and

                     (d)  if the thing is found—seize the thing.

             (2)  If, in the course of searching, under a warrant issued under section 24, for a particular thing in relation to a particular offence, an inspector finds another thing that the inspector believes, on reasonable grounds, to be:

                     (a)  a thing that may be evidence of the commission of the offence, although not the thing stated in the warrant; or

                     (b)  a thing that may be evidence of the commission of another offence against this Act;

and the inspector believes, on reasonable grounds, that it is necessary to seize the other thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence, the warrant is taken to authorise the inspector to seize the other thing.

23  Power of inspector to require information or documents

             (1)  Subject to subsection (2), an inspector who has entered premises under this Act may, to the extent that it is reasonably necessary for the purpose of finding out whether levy is payable under this Act, require a person to give information to the inspector and to produce any documents requested by the inspector.

             (2)  An inspector is not entitled to make a requirement of a person under subsection (1) unless the inspector produces his or her identity card for inspection by the person.

             (3)  A person must not refuse or fail to comply with a requirement made under subsection (1).

Penalty:  30 penalty units.

             (4)  Subsection (3) does not apply if the person has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3) of the Criminal Code.

             (5)  An offence under subsection (3) is an offence of strict liability.

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

24  Offence‑related warrants

             (1)  An inspector may apply to a magistrate for a warrant under this section in relation to particular premises.

             (2)  Subject to subsection (3), a magistrate may issue the warrant in accordance with the prescribed form if he or she is satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, at the premises a particular thing that may be evidence of the commission of an offence against this Act.

             (3)  A magistrate must not issue a warrant under subsection (2) unless the informant or some other person has given to the magistrate, either orally or by affidavit, any further information that the magistrate requires about the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  state the nature of the offence; and

                     (b)  state the purpose for which the warrant is issued; and

                     (c)  authorise an inspector named in the warrant, with any help, and using any force, that is necessary and reasonable, to enter the premises and exercise the powers referred to in paragraphs 22(1)(c) and (d) in respect of the thing; and

                     (d)  state whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

                     (e)  state a day, not later than 7 days after the day of issue of the warrant, upon which the warrant ceases to have effect.

25  Announcement before entry

             (1)  Subject to subsection (2), an inspector who is authorised to enter premises under a warrant issued under section 24 or a person helping such an inspector must, before any person enters the premises under the warrant:

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

                     (b)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  The inspector or a person helping the inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

                     (a)  the safety of a person (including the inspector and any person helping the inspector); or

                     (b)  that the effective execution of the warrant is not frustrated.

26  Details of warrant to be given to occupier

             (1)  If a warrant under section 24 in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the inspector or a person helping the inspector must make a copy of the warrant available to the occupier or other person.

             (2)  The inspector must identify himself or herself to the person at the premises.

             (3)  The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

27  Use of equipment to examine or process things

             (1)  An inspector who enters premises under section 21 or 22 or a person helping the inspector may bring to the premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under that section.

             (2)  If:

                     (a)  it is not practicable to examine or process the things at the premises; or

                     (b)  the occupier of the premises consents in writing;

the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under section 21 or 22, as the case may be.

             (3)  If things containing electronically stored information are moved to another place for the purpose of examination or processing under subsection (2), the inspector must, if it is practicable to do so:

                     (a)  tell the occupier the address of the place and the time at which the examination or processing will be carried out; and

                     (b)  allow the occupier or a representative of the occupier to be present during the examination or processing.

             (4)  The inspector or a person helping the inspector may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under section 21 or 22, as the case may be, if the inspector or person helping believes on reasonable grounds that:

                     (a)  the equipment is suitable for the examination or processing; and

                     (b)  the examination or processing can be carried out without damage to the equipment or the thing.

28  Use of electronic equipment at premises

             (1)  Subject to subsection (4), if a thing found at premises that an inspector has entered under section 21 or 22 is or includes records of information in a written or electronic form, the inspector or a person helping the inspector may operate, or the inspector may require the occupier or an employee of the occupier who is present to operate, equipment at the premises to see whether:

                     (a)  the equipment; or

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

                              (i)  is at the premises; and

                             (ii)  can be used with, or is associated with, the equipment;

contains records that are relevant to determining whether levy is payable under this Act or an offence against this Act has been committed, as the case requires.

             (2)  If the inspector or a person helping the inspector, after equipment at the premises is operated, finds that the equipment contains records of that kind or that a disk, tape or other storage device at the premises contains records of that kind, he or she may:

                     (a)  seize the equipment or the disk, tape or other storage device; or

                     (b)  if the records can, by using facilities at the premises, be put in documentary form—operate the facilities to put the records in that form and seize the documents so produced; or

                     (c)  if the records can be transferred to a disk, tape or other storage device:

                              (i)  that is brought to the premises; or

                             (ii)  that is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

                            operate the equipment or other facilities to copy the records to the storage device and remove the storage device from the premises.

             (3)  An inspector or person helping an inspector may seize equipment under paragraph (2)(a) only if:

                     (a)  it is not practicable to put the relevant records in documentary form as mentioned in paragraph (2)(b) or to copy the records as mentioned in paragraph (2)(c); or

                     (b)  possession by the occupier of the equipment could constitute an offence.

             (4)  An inspector or a person helping an inspector must not operate equipment for the purpose mentioned in subsection (1) unless the inspector or person helping believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

29  Compensation for damage to electronic equipment

             (1)  If:

                     (a)  equipment is damaged because of being operated as mentioned in section 27 or 28; and

                     (b)  the damage was caused as a result of:

                              (i)  insufficient care being exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care being exercised by the person operating the equipment;

the NRA must pay compensation for the damage to the owner of the equipment.

             (2)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and the employees and agents of the occupier, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

30  Copies of seized things to be provided

             (1)  Subject to subsection (2), if an inspector who has entered premises under section 21 or 22 seizes:

                     (a)  a document, film, computer file or other thing that can be readily copied; or

                     (b)  a storage device the information in which can be readily copied;

the inspector must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and is present when the seizure takes place, give a copy of the thing or the information to the occupier or other person as soon as practicable after the seizure.

             (2)  Subsection (1) does not apply if:

                     (a)  the thing that has been seized was seized under paragraph 28(2)(b) or (c); or

                     (b)  possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

31  Return of things that are seized

             (1)  If an inspector seizes a thing under section 21 or 22, the inspector must take reasonable steps to return it if the reason for its seizure no longer exists.

             (2)  If the thing has not been returned before the end of 60 days after its seizure, the inspector must take reasonable steps to return it unless:

                     (a)  proceedings in which the thing may be used in evidence were begun before the end of the 60 days and the proceedings (including an appeal to a court in relation to the proceedings) have not been completed; or

                     (b)  the inspector may keep the thing because of an order under section 32; or

                     (c)  the inspector is authorised by this Act or by an order of a court to keep, destroy or dispose of the thing.

             (3)  If the thing is required to be returned, it must be returned to the person from whom it was seized or, if that person is not entitled to possess it, to the owner.

             (4)  If there is a dispute as to the ownership of the thing, the inspector may keep it until the dispute is resolved.

             (5)  This section has effect subject to section 32.

32  Court of summary jurisdiction may permit a thing to be kept

             (1)  If:

                     (a)  before the end of 60 days after an inspector seizes a thing under section 21 or 22; or

                     (b)  before the end of a period previously stated in an order of a court under this section in respect of a thing seized by an inspector as mentioned in paragraph (a);

proceedings in which the thing may be used in evidence have not been brought, the inspector may apply to a court of summary jurisdiction for an order that he or she may keep the thing for a further period.

             (2)  If the court is satisfied that it is necessary for the inspector to continue to keep the thing:

                     (a)  for the purposes of an investigation as to whether an offence has been committed; or

                     (b)  to enable evidence of an offence to be secured for the purposes of a prosecution;

the court may order that the inspector may keep the thing for a period stated in the order.

             (3)  If the court thinks that notice of the application should be given to any person, it may require such a notice to be given before it hears the application.


 

Part 5Miscellaneous

  

33  Administrative Appeals Tribunal may review certain decisions by NRA

                   An application may be made to the Administrative Appeals Tribunal for review of:

                     (a)  a decision of the NRA determining, or refusing to determine, a later day for the purposes of subparagraph (a)(i) of the definition of prescribed date for payment in subsection 3(1); or

                     (b)  a decision of the NRA determining an amount under paragraph 6(a); or

                     (c)  a decision of the NRA under subsection 14(2) waiving, or refusing to waive, the whole or part of the liability to pay an amount of late payment penalty; or

                     (d)  a decision of the NRA allowing, or refusing to allow, a further period for the making of a request under subsection 18(1).

34  Self‑incrimination to be a reasonable excuse for non‑compliance with requirement

                   It is a reasonable excuse for a person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Act that the information, the production of the document or the doing of that other thing would tend to incriminate the person.

35  Copying of documents

                   If an inspector seizes a document under section 21 or 22, or a person produces a document to an inspector in accordance with a requirement under subsection 23(1), the inspector may make copies of, or take extracts from, the document.

36  Applicant for registration of chemical product to keep records

             (1)  A person who applies for registration, or the renewal of registration, of a chemical product, or imports a chemical product into, or manufactures a chemical product in, Australia must:

                     (a)  keep any records relating to the importation, manufacture or disposal of the product that may be necessary to work out the total leviable value in respect of the product for any period in respect of which levy may be payable in respect of leviable disposals of the product; and

                     (b)  retain those records for 6 years.

Penalty:  30 penalty units.

             (2)  An offence under subsection (1) is an offence of strict liability.

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

38  Exemptions from liability for damages

                   No action, suit or other proceeding for damages lies against the Commonwealth, the NRA, or any other Commonwealth authority, or a person who is or has been an officer or employee of the Commonwealth, of the NRA or of any other Commonwealth authority, or is or has been a delegate of the NRA, a director of the NRA, a consultant to the NRA or an inspector, for or in relation to anything done or omitted to be done in good faith in the performance or purported performance of any function, or the exercise or purported exercise of any power, conferred by this Act.

39  Regulations

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and, in particular, prescribing the way in which notices may be given by or to the NRA under this Act.

             (2)  The percentage that may be prescribed by the regulations for the purposes of section 11 or 12 must not exceed 2%.


Notes to the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994

Note 1

The Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 as shown in this compilation comprises Act No. 41, 1994 amended as indicated in the Tables below.

For relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994

41, 1994

15 Mar 1994

15 Mar 1995
(see s. 2)

 

Agricultural and Veterinary Chemical Products (Collection of Levy) Amendment Act 1994

72, 1994

21 June 1994

(a)

Primary Industries and Energy Legislation Amendment Act 1994

94, 1994

29 June 1994

S. 11: (b)

Primary Industries and Energy Legislation Amendment Act (No.1) 1995

36, 1995

12 Apr 1995

S. 3: Royal Assent (c)

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419)

Agriculture, Fisheries and Forestry Legislation Amendment (Application of Criminal Code) Act 2001

115, 2001

18 Sept 2001

16 Oct 2001

S. 4

Agricultural and Veterinary Chemicals Legislation Amendment Act 2003

13, 2003

8 Apr 2003

S. 4 and Schedules 1, 2 and 3: 8 October 2003
Remainder: Royal Assent

 


(a)     (1)     If the commencement of the Agricultural and Veterinary Chemical Products (Collection of Interim Levy) Act 1994 is fixed by a Proclamation published in the Gazette, this Act commences on the same day as the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994, immediately after the commencement of that last mentioned Act.

         The Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 came into operation on 15 March 1995.

(b)    The Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 was amended by section 11only of the Primary Industries and Energy Legislation Amendment Act 1994, subsection 2(4) of which provides as follows:

                 (4)   The amendment of the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 made by the Schedule commences or is taken to have commenced immediately after the commencement of the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994.

         The Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 came into operation on 15 March 1995.

(c)     The Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 was amended by section 3 only of the Primary Industries and Energy Legislation Amendment Act (No. 1) 1995, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part 1

 

S. 3......................................

am. Nos. 72 and 94, 1994; No. 36, 1995; No. 115, 2001; No. 13, 2003

S. 5A...................................

ad. No. 115, 2001

S. 6......................................

am. No. 36, 1995

S. 7......................................

rep. No. 72, 1994

Part 2

 

S. 10....................................

rep. No. 72, 1994

Ss. 11, 12............................

am. No. 13, 2003

S. 14....................................

am. No. 72, 1994; No. 36, 1995

Part 3

 

S. 15....................................

am. No. 115, 2001

Part 4

 

S. 20....................................

am. No. 72, 1994; No. 36, 1995; No. 115, 2001

S. 23....................................

am. No. 115, 2001

Part 5

 

S. 36....................................

am. No. 115, 2001

S. 37....................................

rep. No. 137, 2000

S. 39....................................

am. No. 72, 1994


Table A

Application, saving or transitional provisions

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre‑commencement offences

(1)        Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)        Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre‑commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first‑mentioned provision is amended by this Schedule;

the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Agriculture, Fisheries and Forestry Legislation Amendment (Application of Criminal Code) Act 2001 (No. 115, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.