Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Horticulture
Marketing and Research and Development Services Bill
2000
No. ,
2000
(Agriculture, Fisheries and
Forestry)
A Bill for an Act to reform the
provision of marketing, research and development services to the horticultural
industry, and for related purposes
ISBN: 0642
451869
Contents
A Bill for an Act to reform the provision of marketing,
research and development services to the horticultural industry, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Horticulture Marketing and Research and
Development Services Act 2000.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Parts 3 and 4 commence at the same time as Schedule 1 to the
Horticulture Marketing and Research and Development Services (Repeals and
Consequential Provisions) Act 2000.
The following is a simplified outline of this Act and some related
material.
This Act provides for a company to be declared as the industry services
body for the Australian horticultural industry and a company to be declared as
the industry export control body. The same company could be declared to be both
bodies (see Part 2).
This Act provides for the industry services body to receive funding from
the Commonwealth (see Part 3).
It also requires the industry services body and the industry export control
body to act in accordance with a deed of agreement, which imposes obligations on
the body and contains details about the body’s accountability to the
Commonwealth.
The Act and the deed provide consequences for breach of the deed. These
include ceasing to be declared (see section 10), being subject to an
injunction (see section 27) or, in the case of the industry services body,
suspension or recovery of funding (see section 16 and the deed). The text
of the deed is not included in the Act but it is publicly available (see
section 14).
The Horticulture Marketing and Research and Development Services
(Repeals and Consequential Provisions) Act 2000 abolishes the Australian
Horticultural Corporation, the Horticultural Research and Development
Corporation and the Australian Dried Fruits Board. It also deals with matters
arising from the transition to the new bodies, such as transfer of staff and
assets from the Corporations and a 2 year period to phase in the new export
control system provided for in Part 4 of this Act.
In this Act, unless the contrary intention appears:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
actionable conduct means conduct by the industry services
body or the industry export control body that constitutes a breach of:
(a) this Act; or
(b) the regulations; or
(c) orders made under this Act; or
(d) the deed of agreement.
APS employee has the same meaning as in the Public Service
Act 1999.
Australia includes the external Territories.
Commonwealth record has the same meaning as in the
Archives Act 1983.
deed of agreement means:
(a) in relation to the industry services body:
(i) the deed of agreement that specifies that it is executed for the
purposes of subsection 12(1); and
(ii) any variations made to the deed of agreement under section 13;
and
(b) in relation to the industry export control body:
(i) the deed of agreement that specifies that it is executed for the
purposes of subsection 12(2); and
(ii) any variations made to the deed of agreement under
section 13.
eligible R&D expenditure means the amount determined in
accordance with the deed of agreement in relation to the industry services body
to be the industry services body’s eligible R&D expenditure.
export means export from Australia.
horticultural industry means any industry carried on in
Australia in connection with:
(a) producing horticultural products by growing, harvesting or processing
horticultural products; or
(b) marketing and any other handling, storing, transporting, processing or
supplying of horticultural products.
horticultural product means:
(a) fruits, including processed fruits; and
(b) vegetables, including:
(i) processed vegetables; and
(ii) mushrooms and other edible fungi; and
(iii) processed mushrooms and other processed edible fungi; and
(c) nuts, including processed nuts; and
(d) nursery products, including:
(i) trees, shrubs, plants, seeds, bulbs, corms and tubers; and
(ii) propagating material and plant tissue cultures, grown for ornamental
purposes or for producing fruits, vegetables, nuts or cut flowers and foliage;
and
(e) cut flowers and foliage, including processed cut flowers and foliage;
and
(f) products prescribed for the purposes of this paragraph.
industry assets and liabilities, in relation to a body that
is, or was, the industry services body or the industry export control body,
means:
(a) the statutory records of the body; and
(b) the assets and liabilities of the body that are determined to be the
industry assets and liabilities of the body in accordance with the deed of
agreement entered into between the body and the Commonwealth under
section 12.
industry export control body means the body for the time
being declared to be the industry export control body under subsection
9(2).
industry services body means the body for the time being
declared to be the industry services body under subsection 9(1).
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
levy & charge collector means a person:
(a) who is responsible for the collection of amounts for payment to the
Commonwealth under:
(i) section 7 or 7A of the repealed Horticultural Levy Collection
Act 1987; or
(ii) section 7 or 7A of the repealed Horticultural Export Charge
Collection Act 1987; or
(iii) section 7 or 9 of the Primary Industries Levies and Charges
Collection Act 1991; or
(b) who has agreed to collect amounts on behalf of the Commonwealth
under:
(i) subsection 7B(1) of the repealed Horticultural Levy Collection Act
1987; or
(ii) subsection 7B(1) of the repealed Horticultural Export Charge
Collection Act 1987; or
(iii) subsection 10(1) or 11(1) of the Primary Industries Levies and
Charges Collection Act 1991.
market means a specified place.
marketing means activities intended to improve the meeting of
customer needs (including processing, handling, transporting, storing, promoting
and selling) but does not include research and development.
marketing amounts means:
(a) amounts of levy imposed under subclause 2(1) of Schedule 15 to
the Primary Industries (Excise) Levies Act 1999 at a rate set under
subclause 4(1) of that Schedule and received by the Commonwealth on or after the
transfer day; and
(b) amounts of charge imposed by subclause 2(1) of Schedule 10 to the
Primary Industries (Customs) Charges Act 1999 at a rate set under
subclause 3(3) of that Schedule and received by the Commonwealth on or
after the transfer day; and
(c) amounts a person is liable to pay under subsection 7(2) of the
Primary Industries Levies and Charges Collection Act 1991 and received by
the Commonwealth on or after the transfer day; and
(d) amounts a person is liable to pay under subsection 7(3) of the
Primary Industries Levies and Charges Collection Act 1991 and received by
the Commonwealth on or after the transfer day; and
(e) amounts payable by way of penalty under section 15 of the
Primary Industries Levies and Charges Collection Act 1991 in relation to
amounts referred to in paragraph (a), (b), (c) or (d); and
(f) amounts:
(i) equal to amounts that are received by the Commonwealth after the
transfer day; and
(ii) that were payable to the Australian Horticultural Corporation under
section 47 of the repealed Australian Horticultural Corporation Act
1987 as in force immediately before the transfer day; and
(iii) not covered by another paragraph of this definition; and
(g) amounts:
(i) equal to amounts that are received by the Commonwealth after the
transfer day; and
(ii) that were payable to a Board under section 115Q of the repealed
Australian Horticultural Corporation Act 1987 as in force immediately
before the transfer day; and
(iii) not covered by another paragraph of this definition.
officer of the industry export control body means any of the
following:
(a) a director of the industry export control body;
(b) a staff member or consultant of the industry export control
body;
(c) an agent of the industry export control body.
officer of the industry services body means any of the
following:
(a) a director of the industry services body;
(b) a staff member or consultant of the industry services body;
(c) an agent of the industry services body.
record has the same meaning as in the Archives Act
1983.
regulated horticultural market, in relation to a regulated
horticultural product, means a market that is declared to be a regulated
horticultural market in relation to the product under subsection
19(1).
regulated horticultural product means a horticultural product
that is declared to be a regulated horticultural product under subsection
19(1).
research and development means systematic experimentation or
analysis in any field of science, technology, economics or business carried out
with the object of:
(a) acquiring knowledge that may be of use for the purpose of improving
any aspect of the production, processing, storage, transport or marketing of
horticultural products; or
(b) applying knowledge for the purpose of improving any aspect of the
production, processing, storage, transport or marketing of horticultural
products.
research and development amounts means:
(a) amounts of levy imposed by subclause 2(1) of Schedule 15 to the
Primary Industries (Excise) Levies Act 1999 at a rate set under subclause
4(3) of that Schedule and received by the Commonwealth on or after the transfer
day; and
(b) amounts of charge imposed by subclause 2(1) of Schedule 10 to the
Primary Industries (Customs) Charges Act 1999 at a rate set under
subclause 3(5) of that Schedule and received by the Commonwealth on or
after the transfer day; and
(c) amounts a person is liable to pay under subsection 7(2) of the
Primary Industries Levies and Charges Collection Act 1991 and received by
the Commonwealth on or after the transfer day; and
(d) amounts a person is liable to pay under subsection 7(3) of the
Primary Industries Levies and Charges Collection Act 1991 and received by
the Commonwealth on or after the transfer day; and
(e) amounts payable by way of penalty under section 15 of the
Primary Industries Levies and Charges Collection Act 1991 in relation to
amounts referred to in paragraph (a), (b), (c) or (d); and
(f) amounts:
(i) equal to amounts that are received by the Commonwealth after the
transfer day; and
(ii) that were payable to the Horticultural Research and Development
Corporation under section 45 of the repealed Horticultural Research and
Development Corporation Act 1987 as in force immediately before the transfer
day; and
(iii) not covered by another paragraph of this definition
Secretary means the Secretary of the Department.
statutory record means:
(a) any record that was transferred to an industry services body on the
transfer day; and
(b) any record that:
(i) is the property of the industry services body; and
(ii) relates to the use of a marketing amount, a research and development
amount or an amount payable under subsection 16(2); and
(c) any record that:
(i) is the property of the industry export control body; and
(ii) relates to the exercise of powers and functions of the industry
export control body under Part 4.
transfer day means the day specified by the Minister as the
transfer day in a determination under section 12 of the Horticulture
Marketing and Research and Development Services (Repeals and Consequential
Provisions) Act 2000.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
This Act applies both within and outside Australia.
Chapter 2 of the Criminal Code applies to all offences
against this Act.
The following is a simplified outline of this Part.
A body may be declared by the Minister to be the industry services body
and/or the industry export control body if the body is established as a company
limited by guarantee under the Corporations Law and has an appropriate
constitution (see section 9).
The Secretary may enter into a deed of agreement with a declared body (see
section 12). The public may obtain access to the deed of agreement (see
section 14).
A declared body may cease to be declared in certain circumstances (see
section 10).
(1) The Minister may declare a body to be the industry services body
if:
(a) the body is a trading corporation to which paragraph 51(xx) of the
Constitution applies; and
(b) the body is a company limited by guarantee incorporated under the
Corporations Law; and
(c) the Minister has had regard to whether the body’s constitution
is appropriate for a body performing the functions of the industry services
body; and
(d) the body has entered into a deed of agreement with the Commonwealth
under subsection 12(1).
The declaration must be by notice in writing.
Note: For information about staff, assets, contracts and
liabilities of the industry services body following its declaration, see
Part 2 of the Horticulture Marketing and Research and Development
Services (Repeals and Consequential Provisions) Act 2000.
(2) The Minister may declare a body to be the industry export control body
if:
(a) the body is a trading corporation to which paragraph 51(xx) of the
Constitution applies; and
(b) the body is a company limited by guarantee incorporated under the
Corporations Law; and
(c) the Minister has had regard to whether the body’s constitution
is appropriate for a body performing the functions of the industry export
control body; and
(d) the body has entered into a deed of agreement with the Commonwealth
under subsection 12(2).
The declaration must be by notice in writing.
(3) The Minister may declare the same body to be both the industry
services body and the industry export control body. However, the Minister must
not declare more than one industry services body, or more than one industry
export control body, at any one time.
(4) A notice under this section must specify the day on and after which
the relevant body is to be the industry services body or the industry export
control body. That day must be the day on which the declaration is made, or a
day that is after that day.
(5) The declaration has effect accordingly.
(6) The Minister must cause a copy of each declaration under this section
to be published in the Gazette within 14 days after the declaration is
made.
(7) The declaration is not invalid merely because it has not been
published as required under subsection (6).
(1) The Minister may declare:
(a) that the body that is the industry services body ceases to be the
industry services body; or
(b) that the body that is the industry export control body ceases to be
the industry export control body;
if the Minister has grounds, under subsection (2), for making the
declaration. The declaration must be by notice in writing.
(2) The Minister has grounds for making the declaration if:
(a) the body gives the Minister a written request that the declaration be
made; or
(b) the Minister has reasonable grounds to believe that the body has
engaged in actionable conduct; or
(c) the Minister has reasonable grounds to believe that:
(i) the body’s constitution is no longer appropriate for a body
performing the functions of the industry services body; or
(ii) the body has failed to comply with its constitution; or
(d) an administrator of the body is appointed; or
(e) the body commences to be wound up or ceases to carry on business;
or
(f) a receiver, or a receiver and manager, of property of the body is
appointed, whether by a court or otherwise; or
(g) the body enters into a compromise or arrangement with its creditors or
a class of them; or
(h) the following circumstances exist:
(i) the Secretary gave the body a written notice requesting its consent to
a proposed variation under section 13 of the deed of agreement in relation
to the body;
(ii) the body did not give its written consent to the variation within the
period of 3 months after the day the notice was given, or such longer period as
was specified in the notice;
(iii) the Minister considers that without the proposed variation being
made, it would not be appropriate for the body to perform the functions of the
industry services body or the industry export control body.
Note: For the meanings of actionable conduct
and deed of agreement, see section 4.
(3) The notice under subsection (1) must specify the day on which the
body is to cease to be the industry services body. That day must be after the
day on which the declaration is made.
(4) The declaration has effect accordingly.
(5) The Minister must cause a copy of each declaration under this section
to be published in the Gazette within 14 days after the declaration is
made.
(6) The declaration is not invalid merely because it has not been
published as required under subsection (5).
(1) If the Minister has made a declaration under section 10 that a
body ceases to be the industry services body or the industry export control
body, the Minister may declare that the body’s industry assets and
liabilities are to be transferred (under regulations specified for the purposes
of subparagraph (2)(d)(i)) to:
(a) a body that the Minister has declared, or proposes to declare, to be
the next industry services body under section 9; or
(b) a trustee of a trust, or a body, that the Minister is satisfied has an
objective of furthering the horticulture industry’s marketing and research
and development interests; or
(c) in the case of statutory records of the body—the
Commonwealth.
Note: For the meanings of industry assets and
liabilities and statutory record, see
section 4.
(2) The declaration must:
(a) be by notice in writing; and
(b) specify each person or body to which industry assets and liabilities
(including statutory records) are to be transferred; and
(c) specify a day (after the day on which the declaration is made) as the
day on which the transfer occurs; and
(d) specify regulations that have been made:
(i) providing for the vesting of the industry assets and liabilities;
and
(ii) setting out the processes governing the transfer of the industry
assets and liabilities; and
(iii) setting out the conditions to which the transfer of industry assets
and liabilities is to be subject; and
(iv) relating to arrangements for the transfer of statutory
records.
(3) The declaration has effect accordingly.
(4) The Minister must cause a copy of each declaration under this section
to be published in the Gazette within 14 days after the declaration is
made.
(5) The declaration is not invalid merely because it has not been
published as required under subsection (4).
(1) The Minister may, on behalf of the Commonwealth, enter into a deed of
agreement with a body (which is proposed to be the industry services body) for
the purposes of this subsection.
(2) The Minister may, on behalf of the Commonwealth, enter into a deed of
agreement with a body (which is proposed to be the industry export control body)
for the purposes of this subsection.
Note: A single deed of agreement may be entered into for the
purposes of subsections (1) and (2) if the same body is declared to be the
industry services body and the export control body.
(3) Subsections (1) and (2) do not, by implication, limit the
executive power of the Commonwealth to enter into agreements.
(4) Nothing in this Act is to be taken, by implication, to prevent the
enforcement of a deed of agreement as a contract.
(1) The Minister and a body that has entered into a deed of agreement
under section 12 may, by written agreement, vary the deed of
agreement. The variation must be in writing.
(2) The variation must specify the day on which it takes effect. The day
must be after the day on which the variation is made.
(3) The Minister must publish a notice in the Gazette within 14
days after the variation is made. This notice must:
(a) state that the variation has been made; and
(b) briefly summarise the effect of the variation.
(4) The variation is not invalid merely because a notice about it has not
been published as required under subsection (3).
(1) The industry services body and the industry export control body must
keep a copy of the deed of agreement in relation to the body at the body’s
registered office.
Note: The deed of agreement includes all variations made to
it under section 13.
(2) The copy must be available for inspection at the registered office on
request, without charge, whenever the body’s registered office is required
to be open to the public.
(3) The industry services body and the industry export control body must
give a person a copy of the deed of agreement in relation to the body if the
person:
(a) requests the copy; and
(b) pays any fee determined by the body in accordance with the deed of
agreement.
(4) If a deed of agreement in relation to the industry services body or
the industry export control body is available on the Internet, the body must
inform a person seeking a copy of that fact. (However, informing the person of
that fact does not affect the body’s obligations under this
section.)
The following is a simplified outline of this Part.
The industry services body is to be paid certain amounts by the
Commonwealth. The payments by the Commonwealth are conditional (see
section 16).
Those amounts may only be spent by the industry services body for
particular purposes (see section 17).
Payments equal to marketing amounts and research and development
amounts
(1) The Commonwealth must pay to the industry services body amounts equal
to:
(a) the marketing amounts; and
(b) the research and development amounts.
Note: For the meanings of marketing amounts,
research and development amounts and deed of
agreement, see section 4.
“Matching” payments
(2) The Commonwealth must also pay to the industry services body amounts
equal to one-half of the industry services body’s eligible R&D
expenditure.
Note: For the meaning of eligible R&D
expenditure, see section 4.
(3) However, the total amount that, during a particular financial year, is
paid to the industry services body under subsection (2) must not exceed an
amount equal to 0.5% of the amount that the Secretary determines to be the gross
value of production of the horticultural industry for the financial
year.
Note: For the meaning of horticultural
industry, see section 4.
(4) The regulations may provide for the way in which the Secretary is to
determine the amount of the gross value of production of the horticultural
industry for a financial year.
Amounts not payable
(5) Amounts are not payable under subsections (1) and (2):
(a) in circumstances in which the deed of agreement specifies the amounts
are not payable; or
(b) if those amounts have previously been paid to a body that was, at the
time of the payment, an industry services body.
Payments to be in accordance with deed of agreement
(6) Amounts payable under subsections (1) and (2) are to be
paid:
(a) at the times and in the manner specified in relation to the payments
in the deed of agreement; and
(b) subject to any conditions specified in this Act or in the deed of
agreement.
Conditions on payments
(7) It is a condition of each payment of an amount under
subsection (1) or (2) that if the Commonwealth incurs an expense, or pays a
refund, mentioned in paragraph 17(1)(d) or 17(2)(d) the industry services body
must pay to the Commonwealth an amount equal to the amount of the expense or
refund.
(8) The industry services body must comply with any condition imposed on
it by:
(a) this Act; or
(b) the deed of agreement;
in respect of a payment of an amount under subsection (1) or
(2).
Amounts are paid from the Consolidated Revenue Fund
(9) Amounts payable under subsections (1) and (2) are to be paid out
of the Consolidated Revenue Fund, which is appropriated accordingly.
Marketing
(1) Marketing amounts paid to the industry services body may only be
applied by the body:
(a) in making payments for, or in relation to, marketing related to the
horticultural industry; and
(b) for administrative purposes, in accordance with the deed of agreement
in relation to the body; and
(c) in paying remuneration and allowances to directors, staff, consultants
and agents of the body; and
(d) in paying to the Commonwealth amounts equal to:
(i) the expenses incurred by the Commonwealth in relation to collecting or
recovering marketing amounts or administering provisions relating to marketing
amounts; and
(ii) refunds paid by the Commonwealth in respect of marketing amounts;
and
(e) in paying a levy & charge collector for the collection of
marketing amounts; and
(f) in making any other payments that the body is authorised or required
to make under this Act or another Act; and
(g) in making any other payments that are prescribed on any prescribed
conditions.
Note: For the meanings of marketing amounts,
horticultural industry, marketing, deed of
agreement and levy & charge collector, see
section 4.
Research and development
(2) Research and development amounts, and amounts paid under subsection
16(2), paid to the industry services body may only be applied by that
body:
(a) in making payments for, or in relation to, research and development
related to the horticultural industry; and
(b) for administrative purposes, in accordance with the deed of agreement
in relation to the body; and
(c) in paying remuneration and allowances to directors, staff, consultants
and agents of the body; and
(d) in paying to the Commonwealth amounts equal to:
(i) the expenses incurred by the Commonwealth in relation to collecting or
recovering research and development amounts or administering provisions relating
to research and development amounts; and
(ii) refunds paid by the Commonwealth in respect of research and
development amounts or amounts of levy or charge referred to in subsection
16(2); and
(e) in paying a levy & charge collector for the collection of research
and development amounts; and
(f) in making any other payments that the body is authorised or required
to make under this Act or another Act; and
(g) in making any other payments that are prescribed on any prescribed
conditions.
Note 1: A payment to facilitate the dissemination, adoption
and commercialisation of the results of horticultural research and development
is an example of a payment in relation to research and development related to
the horticultural industry.
Note 2: For the meanings of research and development
amounts, horticultural industry, research and
development and levy & charge collector, see
section 4.
The following is a simplified outline of this Part.
The Secretary may declare that a horticultural product is a regulated
horticultural product and that a market is a regulated horticultural market in
respect of the product (see section 19). The Secretary may also revoke such
a declaration (see section 20).
If the Secretary makes such a declaration, it is an offence for a person to
export the product to the market unless the person has a licence and complies
with any licence conditions (see section 21). The licensing scheme is
administered by the industry export control body (see
section 22).
(1) The Secretary may make an order specifying that, on and after a
specified day:
(a) a specified horticultural product is a regulated horticultural
product; and
(b) a specified market is a regulated horticultural market in respect of
the product.
Note 1: For further provisions about orders, see
section 35.
Note 2: For the meanings of horticultural
product, market and horticultural market,
see section 4.
(2) The order has effect from a date specified in the order, which must be
at least 14 days after the day on which the order is notified in the
Gazette.
Note: An order made under this section must be notified in
the Gazette—see section 35 of this Act and section 48 of
the Acts Interpretation Act 1901.
(3) The Secretary must cause a copy of the order to be published in a
newspaper circulating in each region where the specified horticultural products
are grown or exported. The copy must be published within 14 days of being
notified in the Gazette.
(4) The Secretary must not make an order under this section unless the
Secretary is satisfied that the processes:
(a) set out in the deed of agreement relating to the industry export
control body; and
(b) specified as being for the purposes of this subsection;
have been complied with.
Note: For the meanings of deed of agreement,
and industry export control body, see
section 4.
(1) The Secretary may revoke an order made under section 19 if the
Secretary is satisfied that the processes set out in the deed of agreement
relating to the industry export control body that are specified as being made
for the purposes of this subsection have been complied with.
Note: For the meanings of deed of agreement,
and industry export control body, see
section 4.
(2) The revocation must be by notice published in the Gazette and
has effect from a day specified in the notice.
(3) The day specified in the notice must be a later day than the day on
which the notice is published.
(4) The Secretary must cause a copy of the notice to be published in a
newspaper circulating in each region where the specified horticultural products
are grown or exported. The copy must be published within 14 days of the notice
being published in the Gazette.
(1) A person commits an offence if:
(a) the person exports a regulated horticultural product to a regulated
horticultural market in respect of that product; and
(b) the person does not have a licence issued in accordance with
section 22 to export the product to the market.
Note: For the meanings of export,
regulated horticultural product and regulated horticultural
market, see section 4.
Maximum penalty: 180 penalty units.
(2) A person commits an offence if:
(a) the person exports a regulated horticultural product to a regulated
horticultural market in respect of that product; and
(b) the person has a licence issued in accordance with section 22 to
export the product to the market but the export is not in accordance with the
conditions of that licence.
Note: For the meanings of export,
regulated horticultural product and regulated horticultural
market, see section 4.
Maximum penalty: 60 penalty units.
(1) The regulations may make provision for, or in relation to, the
licensing by the industry export control body of people to export regulated
horticultural products to regulated horticultural markets.
Note: For the meanings of regulated horticultural
product and regulated horticultural market, see
section 4.
(2) Regulations made for the purposes of subsection (1) may make
provision for and in relation to:
(a) granting and assigning of a licence; and
(b) granting a licence subject to compliance with conditions (being
conditions applying either before or after the export of the products) by the
person to whom the licence is granted or any person to whom the licence is
assigned (see also subsection (3)); and
(c) varying a licence or a condition of a licence; and
(d) surrendering a licence, including in exchange for granting another
licence to the holder of the surrendered licence; and
(e) revoking or suspending a licence that is granted subject to a person
complying with a condition, for breach by the person of the condition (whether
or not the person is charged with an offence in respect of the contravention);
and
(f) review of decisions made under the regulations.
Note 1: For example, the regulations may make provision for
review by the Administrative Appeals Tribunal of the decision.
Note 2: A person may seek review of certain decisions of the
industry export control body under the Administrative Decisions (Judicial
Review) Act 1977.
(3) Conditions imposed under paragraph (2)(b) may include, but are
not limited to, conditions:
(a) requiring:
(i) the purchaser of horticultural products; or
(ii) a person to whom horticultural products are consigned as an agent or
representative of the purchaser or exporter;
to be a person approved by the industry export control body;
(b) relating to:
(i) the quality of horticultural products, including their colour, shape,
size and other characteristics; or
(ii) the packaging, labelling or description of, or documentation relating
to, horticultural products; or
(iii) the form of consignments of horticultural products; or
(iv) the commission and fees charged by exporters and others; or
(v) the carriage or insurance of horticultural products, including
contracts for carriage or insurance.
The industry export control body may issue a certificate certifying a
matter in connection with horticultural products if:
(a) the industry export control body is requested to certify as to the
matter; and
(b) the industry export control body is satisfied as to the
matter.
Note: For the meaning of horticultural
product, see section 4.
(1) If no body is the industry export control body, the Secretary may
exercise the powers of the industry export control body under sections 22
and 23, and under regulations, and orders, made for the purposes of
section 22.
Note: For information about the power to make orders, see
section 35.
(2) While the Secretary exercises those powers:
(a) references to the industry export control body in regulations, and
orders, made for the purposes of section 22 are taken to be references to
the Secretary; and
(b) subsections 19(4) and 20(1) are taken to have no effect; and
(c) references in section 25 to the industry export control body are
taken to be references to the Secretary and any delegate of the Secretary;
and
(d) references in section 29:
(i) to the industry export body; and
(ii) to its directors;
are taken to be references to the Secretary.
(3) The regulations may make such provision as is necessary:
(a) for the efficient and effective exercise by the Secretary of the
powers of the industry export control body under sections 22 and 23, and
under regulations, and orders, made for the purposes of section 22;
and
(b) for the payment of fees to the Commonwealth for licences to export
regulated horticultural products to regulated horticultural markets;
and
(c) for facilitating the transition from the exercise of those powers by
the Secretary to their exercise by the new industry export control body
(including the transfer to the industry export control body of amounts in
respect of fees paid to the Commonwealth under regulations made in accordance
with paragraph (b)).
No action, suit or other proceeding for damages lies against the industry
export control body or officers of the body for any loss or injury directly or
indirectly suffered as a result of anything done, or omitted to be done, in the
exercise or performance, or the purported exercise or performance, of:
(a) powers under section 22 or 23; or
(b) powers under regulations, and orders, made for the purposes of
section 22;
unless the act or omission was in bad faith.
Note: For the meaning of officer of the industry
export control body, see section 4.
This Part does not, by implication, affect the operation of any other law
relating to export.
Applications for injunctions
(1) The Minister may apply to the Federal Court for an injunction if the
industry services body or the industry export control body has engaged, engages
or proposes to engage in actionable conduct.
Note: For the meaning of actionable conduct,
see section 4.
Prohibitory injunctions
(2) The Federal Court may grant an injunction restraining the industry
services body or the industry export control body from engaging in actionable
conduct:
(a) whether or not it appears to the Federal Court that the body intends
to engage again, or to continue to engage, in actionable conduct; and
(b) whether or not the body has previously engaged in actionable
conduct;
if the body has engaged, engages or proposes to engage in actionable
conduct.
Additional orders with prohibitory injunctions
(3) The Federal Court may make an order requiring the industry services
body or the industry export control body to do something if:
(a) the Federal Court grants an injunction restraining the body from
engaging in actionable conduct; and
(b) in the Federal Court’s opinion it is desirable to make the
order.
Mandatory injunctions
(4) The Federal Court may grant an injunction requiring the industry
services body or the industry export control body to do an act:
(a) whether or not it appears to the Federal Court that the body intends
to refuse or fail again, or to continue to refuse or fail, to do the act or
thing; and
(b) whether or not the body has previously refused or failed to do the act
or thing;
if the body has refused or failed, or is refusing or failing, or is
proposing to refuse or fail to do an act, and the refusal or failure did, does
or would constitute actionable conduct.
Interim injunctions
(5) The Federal Court may grant an interim injunction:
(a) restraining the industry services body or the industry export control
body from engaging in conduct; or
(b) requiring the industry services body or the industry export control
body to do an act;
before deciding an application for an injunction under this
section.
Discharge of injunctions
(6) The Federal Court may discharge, or vary, an injunction if an
application for it to do so is made.
No undertakings as to damages
(7) The Federal Court must not require an applicant for an injunction to
give an undertaking as to damages as a condition of granting an interim
injunction.
Powers conferred in addition to other powers of the Federal
Court
(8) The powers conferred on the Federal Court by this section are in
addition to (and do not limit) any other powers of the Federal Court.
The Commonwealth may recover an amount payable to the Commonwealth
under:
(a) this Act; or
(b) the deed of agreement in relation to the industry services body or the
industry export control body;
as a debt due to the Commonwealth by action in a court of competent
jurisdiction.
(1) The Minister may give a written direction to the industry services
body or the industry export control body if:
(a) the Minister:
(i) is satisfied that the direction is in Australia’s national
interest because of exceptional and urgent circumstances; and
(ii) is satisfied that the direction would not require the body to incur
expenses greater than amounts paid to the body under this Act; and
(iii) has given the body’s directors an adequate opportunity to
discuss with the Minister the need for the proposed direction and the impact of
compliance with subsection (3) on the body’s commercial activities;
and
(b) the direction is made for a purpose that is within the
Commonwealth’s legislative power.
(2) If a body is given a direction under subsection (1), it must
comply with it.
(3) The Minister must cause a copy of the direction to be laid before each
House of the Parliament within 15 sitting days of that House after the direction
is given, unless the Minister makes a written determination that doing so would
be likely to prejudice:
(a) the national interest of Australia; or
(b) the body’s commercial activities.
(4) The Minister is not to be taken to be a director of the industry
services body or the industry export control body for the purposes of the
Corporations Law merely because of the power conferred on the Minister by this
section.
(5) The Commonwealth is not to be taken to be in a position to exercise
control over the industry services body or the industry export control body
merely because of the power conferred on the Minister by this section.
(1) The Secretary may only exercise powers under subsection (2)
if:
(a) the Secretary suspects actionable conduct by a body (the current
or former industry body) that is the industry services body, or is the
industry export control body, or was formerly the industry services body or was
formerly the industry export control body; and
(b) the powers are exercised for the purposes of investigating, or
assisting in the investigation, of suspected actionable conduct by the current
or former industry body.
Note: For the meaning of actionable conduct,
see section 4.
(2) The Secretary may, by written notice given to a person, require the
person to do either or both of the following:
(a) give to the Secretary copies of documents:
(i) in the person’s possession or control; and
(ii) that are, or were, related to the current or former industry
body;
within the period and in the manner specified in the notice;
and
(b) give to the Secretary information about specified matters relating to
the body, within the period and in the manner specified in the notice.
The period specified in the notice must end at least 14 days after the
notice was given.
(3) The person must:
(b) comply with any notice given to it under subsection (2);
and
(c) give the Secretary any information, explanation or assistance
reasonably required to understand any copies or information given under
subsection (2).
(4) Copies and information given under subsection (2) may only be
used for one or more of the following purposes:
(a) investigating, or assisting in the investigation, of suspected
actionable conduct by the current or former industry body;
(b) a purpose related to this Act, the regulations or orders, or the deed
of agreement relating to the body.
(1) The Archives Act 1983 applies to a body that is the industry
services body or the industry export control body as if:
(a) the body were an authority of the Commonwealth; and
(b) only the body’s statutory records were Commonwealth
records.
Note: For the meanings of statutory record and
Commonwealth record, see section 4.
(2) The Archives Act 1983 applies to a body that was the industry
services body or the industry export control body as if the reference in
section 28A of that Act to records of the body were a reference to the
statutory records of the body.
(1) The Minister may delegate all or any of the Minister’s powers
under this Act (other than section 29), the regulations or orders to the
Secretary. The delegation must be in writing.
(2) The Secretary may delegate all or any of the Secretary’s powers
under this Act, the regulations or orders to an APS employee in the Department
who has appropriate skills or experience. The delegation must be in
writing.
Note: For the meaning of APS employee, see
section 4.
(1) If:
(a) apart from this section, the operation of this Act would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay the person a reasonable amount of
compensation in respect of the acquisition.
Note: For the meanings of acquisition of
property and just terms, see
section 4.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.
The Governor-General may make regulations prescribing all
matters:
(a) that are required or permitted by this Act to be prescribed;
or
(b) that are necessary or convenient to be prescribed for carrying out or
giving effect to this Act;
and may, for example, make regulations prescribing penalties of not more
than 30 penalty units for offences against the regulations.
(1) The Secretary may make orders with respect to any matter for or in
relation to which provision may be made by the regulations. However, an order
must not be made prescribing any penalty.
Note: The Secretary may also make orders under
section 19.
(2) Sections 48, 48A, 48B, 49, 49A and 50 of the Acts
Interpretation Act 1901 apply in relation to orders made under
subsection (1) or section 19 as if references to regulations were
references to orders and references to an Act were references to
regulations.
(3) An order made under subsection (1) or section 19 must not be
taken to be a statutory rule within the meaning of the Statutory Rules
Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act
apply in relation to an order in like manner as they apply in relation to a
statutory rule.
(4) For the purposes of the application of subsection 5(3B) of the
Statutory Rules Publication Act 1903 in accordance with
subsection (3), the reference in subsection 5(3B) of the Statutory Rules
Publication Act 1903 to the Minister specified in that subsection shall be
read as a reference to a Minister administering this Act.
(5) An order made under subsection (1) or section 19 is taken to
be an enactment for the purposes of the Administrative Appeals Tribunal Act
1975.