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This is a Bill, not an Act. For current law, see the Acts databases.

WHEAT EXPORT MARKETING AMENDMENT BILL 2012

2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Wheat Export Marketing Amendment
Bill 2012
No. , 2012
(Agriculture, Fisheries and Forestry)
A Bill for an Act to amend the Wheat Export
Marketing Act 2008, and for other purposes
Wheat Export Marketing Amendment Bill 2012 No. , 2012 i
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments relating to the wheat export
accreditation scheme
3
Part 1--Amendments
3
Wheat Export Marketing Act 2008
3
Part 2--Consequential amendments
21
Criminal Code Act 1995
21
Schedule 2--Amendments relating to Wheat Exports Australia
22
Part 1--Amendments
22
Wheat Export Marketing Act 2008
22
Part 2--Transitional provisions
25
Division 1--Preliminary
25
Division 2--Transfer of assets and liabilities
26
Division 3--Transfer of other matters
28
Division 4--Other transitional matters
29
Schedule 3--Repeal of the Wheat Export Marketing Act 2008
32
Wheat Export Marketing Act 2008
32
Wheat Export Marketing Amendment Bill 2012 No. , 2012 1
A Bill for an Act to amend the Wheat Export
1
Marketing Act 2008, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Wheat Export Marketing Amendment
5
Act 2012.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Wheat Export Marketing Amendment Bill 2012 No. , 2012
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
1 October 2012.
1 October 2012
3. Schedule 2
1 January 2013.
1 January 2013
4. Schedule 3
1 October 2014.
However, the provision(s) do not commence
at all unless the Minister has, before that
day, published a notice in the Gazette under
subsection 12(1) of the Wheat Export
Marketing Act 2008.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 3
Schedule 1--Amendments relating to the
1
wheat export accreditation scheme
2
Part 1--Amendments
3
Wheat Export Marketing Act 2008
4
1 Paragraph 3(a)
5
Repeal the paragraph, substitute:
6
(a) to promote the operation of an efficient and profitable bulk
7
wheat export marketing industry that supports the
8
competitiveness of all sectors through the supply chain; and
9
2 Section 4
10
Repeal the section, substitute:
11
4 Simplified outline
12
The following is a simplified outline of this Act:
13
·
This Act provides a system for regulating exports of wheat
14
(other than wheat in bags or containers).
15
·
A provider of a port terminal service who exports wheat, or
16
who is an associated entity of a person who exports wheat,
17
must pass the access test in relation to the port terminal
18
service.
19
·
An exporter of wheat:
20
(a)
who provides a port terminal service; or
21
(b)
who has an associated entity that provides the port
22
terminal service;
23
must not export wheat using the port terminal service if a
24
person who was required to pass the access test in relation to
25
the port terminal service at a time during the previous 12
26
months did not pass the access test at that time.
27
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
4 Wheat Export Marketing Amendment Bill 2012 No. , 2012
·
The Minister may approve a code of conduct dealing with the
1
provision to wheat exporters of access to port terminal
2
services by the providers of port terminal services.
3
3 Section 5 (definition of access test)
4
Omit "section 24", substitute "section 9".
5
4 Section 5 (definition of accredited wheat exporter)
6
Repeal the definition.
7
5 Section 5 (definition of ACN)
8
Repeal the definition.
9
6 Section 5 (definition of Australian Consumer Law)
10
Repeal the definition.
11
7 Section 5 (definition of company)
12
Repeal the definition.
13
8 Section 5 (definition of continuous disclosure rules)
14
Omit "subsection 24(4)", substitute "subsection 9(4)".
15
9 Section 5 (definition of co-operative)
16
Repeal the definition.
17
10 Section 5 (definition of designated sanitary or
18
phytosanitary measure)
19
Repeal the definition.
20
11 Section 5 (definition of executive officer)
21
Repeal the definition.
22
12 Section 5 (definition of external auditor)
23
Repeal the definition.
24
13 Section 5 (definition of externally-administered body
25
corporate)
26
Repeal the definition.
27
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 5
14 Section 5 (definition of foreign country)
1
Repeal the definition.
2
15 Section 5 (definition of foreign law)
3
Repeal the definition.
4
16 Section 5 (definition of individual producer)
5
Repeal the definition.
6
17 Section 5 (definition of involved in a contravention)
7
Repeal the definition.
8
18 Section 5
9
Insert:
10
old Act means this Act as in force immediately before the
11
commencement of this definition.
12
19 Section 5 (definition of post-cancellation compliance
13
report)
14
Repeal the definition.
15
20 Section 5 (definition of post-cancellation export report)
16
Repeal the definition.
17
21 Section 5 (definition of pre-cancellation period)
18
Repeal the definition.
19
22 Section 5 (definition of pre-surrender compliance report)
20
Repeal the definition.
21
23 Section 5 (definition of pre-surrender export report)
22
Repeal the definition.
23
24 Section 5 (definition of pre-surrender period)
24
Repeal the definition.
25
25 Section 5
26
Insert:
27
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
6 Wheat Export Marketing Amendment Bill 2012 No. , 2012
Secretary means the Secretary of the Department.
1
26 Section 5 (definition of United Nations sanctions
2
provision)
3
Repeal the definition.
4
27 Section 5 (definition of wheat export accreditation
5
scheme)
6
Repeal the definition.
7
28 Section 6
8
Repeal the section.
9
29 Part 2
10
Repeal the Part, substitute:
11
Part 2--Access test
12
Division 1--Requirement to pass the access test
13
7 Requirement to pass the access test
14
Who must pass the access test
15
(1) A provider of a port terminal service must pass the access test in
16
relation to the port terminal service if:
17
(a) the provider exports wheat using the port terminal service; or
18
(b) the provider is an associated entity of a person who exports
19
wheat using the port terminal service.
20
(2) Subsection (1) does not apply to the export of wheat in:
21
(a) a bag; or
22
(b)
a
container;
23
that is capable of holding not more than 50 tonnes of wheat.
24
When the access test must be passed
25
(3) The provider must pass the access test in relation to the port
26
terminal service at all times during the 12-month period beginning
27
on the day of the export of the wheat.
28
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 7
Exception
1
(4) The Secretary may, by writing, determine that this section does not
2
apply in relation to a specified provider and to a specified period if
3
the Secretary is satisfied that there are special circumstances that
4
justify the Secretary doing so.
5
Determination not a legislative instrument
6
(5) A determination under subsection (4) is not a legislative
7
instrument.
8
8 Exports of wheat
9
Exports of wheat
10
(1) A person (the exporter) must not export wheat using a port
11
terminal service if:
12
(a)
either:
13
(i) the exporter is the provider of the port terminal service;
14
or
15
(ii) an associated entity of the exporter is the provider of the
16
port terminal service; and
17
(b) a person (whether the exporter, the associated entity or
18
another person) was required by section 7 to pass the access
19
test in relation to the port terminal service at a time during
20
the 12-month period ending on the day of the export; and
21
(c) the person mentioned in paragraph (b) did not pass the access
22
test at that time.
23
Exceptions
24
(2) The Secretary may, by writing, determine that subsection (1) does
25
not apply in relation to a specified person and to a specified export
26
if the Secretary is satisfied that there are special circumstances that
27
justify the Secretary doing so.
28
(3) Subsection (1) does not apply if the wheat is exported in:
29
(a) a bag; or
30
(b)
a
container;
31
that is capable of holding not more than 50 tonnes of wheat.
32
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
8 Wheat Export Marketing Amendment Bill 2012 No. , 2012
(4) A person who wishes to rely on subsection (3) bears an evidential
1
burden in relation to that matter.
2
Note: For
evidential burden, see section 5.
3
Ancillary contraventions
4
(5) A person must not:
5
(a) aid, abet, counsel or procure a contravention of
6
subsection (1); or
7
(b) induce, whether by threats or promises or otherwise, a
8
contravention of subsection (1); or
9
(c) be in any way, directly or indirectly, knowingly concerned in,
10
or party to, a contravention of subsection (1); or
11
(d) conspire with others to effect a contravention of
12
subsection (1).
13
Civil penalty provisions
14
(6) Subsections (1) and (5) are civil penalty provisions.
15
Note:
Part 8 provides for pecuniary penalties for breaches of civil penalty
16
provisions.
17
Determination not a legislative instrument
18
(7) A determination under subsection (2) is not a legislative
19
instrument.
20
Division 2--Access test
21
9 Access test
22
Access test--access undertaking
23
(1) A person passes the access test in relation to a port terminal service
24
at a particular time if:
25
(a) at that time, there is in operation, under Division 6 of
26
Part IIIA of the Competition and Consumer Act 2010, an
27
access undertaking relating to the provision to wheat
28
exporters of access to the port terminal service for purposes
29
relating to the export of wheat; and
30
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 9
(b) the access undertaking obliges the person to comply, at that
1
time, with the continuous disclosure rules in relation to the
2
port terminal service (see subsection (4)); and
3
(c) at that time, the person complies with the continuous
4
disclosure rules in relation to the port terminal service.
5
(2) For the purposes of paragraph (1)(a):
6
(a) assume that subsection 44ZZBA(1) of the Competition and
7
Consumer Act 2010 had never been enacted; and
8
(b) assume that an access undertaking comes into operation at
9
the time when the ACCC publishes its decision to accept the
10
undertaking.
11
Access test--effective access regimes
12
(3) A person passes the access test in relation to a port terminal service
13
at a particular time if:
14
(a) at that time:
15
(i) there is in force a decision under Division 2A of
16
Part IIIA of the Competition and Consumer Act 2010
17
that a regime established by a State or Territory for
18
access to the port terminal service is an effective access
19
regime; and
20
(ii) under that regime, wheat exporters have access to the
21
port terminal service for purposes relating to the export
22
of wheat; and
23
(b) at that time, the person complies with the continuous
24
disclosure rules in relation to the port terminal service (see
25
subsection (4)).
26
Continuous disclosure rules
27
(4)
The
continuous disclosure rules in relation to a port terminal
28
service are as follows:
29
(a) there is available on the person's website a current statement
30
setting out the person's policies and procedures for managing
31
demand for the port terminal service (including the person's
32
policies and procedures relating to the nomination and
33
acceptance of ships to be loaded using the port terminal
34
service);
35
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
10 Wheat Export Marketing Amendment Bill 2012 No. , 2012
(b) there is available on the person's website a current statement
1
(a loading statement) setting out the name of each ship (a
2
loading ship) scheduled to load grain using the port terminal
3
service;
4
(c) the loading statement also sets out, for each loading ship:
5
(i) a unique slot reference number; and
6
(ii) the time when the ship was nominated to load grain
7
using the port terminal service; and
8
(iii) the time when the ship was accepted as a ship scheduled
9
to load grain using the port terminal service; and
10
(iv) the estimated time when the ship will arrive at the port
11
terminal service; and
12
(v) the estimated time when grain is to start being loaded by
13
the ship using the port terminal service; and
14
(vi) the estimated time when the ship will leave the port
15
terminal service; and
16
(vii) the name of the exporter of the grain; and
17
(viii) the quantity of grain to be loaded by the ship using the
18
port terminal service; and
19
(ix) the type of grain to be loaded by the ship using the port
20
terminal service; and
21
(x) if grain has started to be loaded by the ship, but the
22
loading has not been completed--that fact; and
23
(xi) if the ship has completed loading grain using the port
24
terminal service--the time when the loading was
25
completed;
26
(d) the person updates the loading statement each business day;
27
(e)
both:
28
(i) the ACCC has a copy of the information set out in the
29
most recently updated loading statement; and
30
(ii) the information was given to the ACCC in the manner
31
and form approved, in writing, by the ACCC.
32
Export of wheat
33
(5) In this section, a reference to the export of wheat does not include a
34
reference to the export of wheat in:
35
(a) a bag; or
36
(b)
a
container;
37
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 11
that is capable of holding not more than 50 tonnes of wheat.
1
Division 3--Application of the Customs Act 1901
2
10 Application of the Customs Act 1901
3
If:
4
(a) an exportation of wheat contravenes section 8; and
5
(b) the Secretary notifies the Chief Executive Officer of Customs
6
in writing that the Secretary wishes the Customs Act 1901 to
7
apply to that exportation;
8
the Customs Act 1901 has effect as if the goods included in that
9
exportation were goods described as forfeited to the Crown under
10
section 229 of that Act because they were prohibited exports within
11
the meaning of that Act.
12
11 Delegation by the Secretary
13
(1) The Secretary may, by writing, delegate any or all of his or her
14
functions or powers under this Division to an SES employee, or
15
acting SES employee, in the Department.
16
Note: The
expressions
SES employee and acting SES employee are defined
17
in the Acts Interpretation Act 1901.
18
(2) In exercising powers under a delegation, the delegate must comply
19
with any directions of the Secretary.
20
Division 4--Code of conduct
21
12 Minister to approve code of conduct
22
(1) The Minister may, by notice published in the Gazette, approve a
23
code of conduct for the purposes of this section.
24
(2) The Minister must not approve a code of conduct under
25
subsection (1) unless the Minister is satisfied that the code of
26
conduct:
27
(a) deals with the fair and transparent provision to wheat
28
exporters of access to port terminal services by the providers
29
of port terminal services; and
30
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
12 Wheat Export Marketing Amendment Bill 2012 No. , 2012
(b) requires providers of port terminal services to comply with
1
continuous disclosure rules; and
2
(c) is consistent with the operation of an efficient and profitable
3
wheat export marketing industry that supports the
4
competitiveness of all sectors through the supply chain; and
5
(d) is consistent with any guidelines made by the ACCC relating
6
to voluntary industry codes of conduct.
7
(3) A notice under subsection (1) is not a legislative instrument.
8
Division 5--Transitional reports
9
13 Export reports and compliance reports
10
Scope
11
(1) This section applies in relation to a person who was, immediately
12
before the commencement of this subsection, an accredited wheat
13
exporter within the meaning of the old Act.
14
Export report
15
(2) The person must, within 30 days after the end of the marketing
16
year beginning on 1 October 2011, give WEA a written report
17
setting out the quantity of wheat exported by the person during that
18
year, broken down by specification and country of destination.
19
(3) Subsection (2) does not apply to the export of wheat in:
20
(a) a bag; or
21
(b)
a
container;
22
that is capable of holding not more than 50 tonnes of wheat.
23
Compliance report
24
(4) The person must, within 30 days after the end of the marketing
25
year beginning on 1 October 2011, give WEA a written report
26
relating to the person's compliance, during that year, with:
27
(a) the conditions of the person's accreditation under the wheat
28
export accreditation scheme; and
29
(b) Australian laws, and foreign laws, that, during the year, were
30
applicable to the person's export trade in wheat; and
31
(c) the United Nations sanctions provisions.
32
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 13
Ancillary contraventions
1
(5) A person must not:
2
(a) aid, abet, counsel or procure a contravention of subsection (2)
3
or (4); or
4
(b) induce, whether by threats or promises or otherwise, a
5
contravention of subsection (2) or (4); or
6
(c) be in any way, directly or indirectly, knowingly concerned in,
7
or party to, a contravention of subsection (2) or (4); or
8
(d) conspire with others to effect a contravention of
9
subsection (2) or (4).
10
Civil penalty provisions
11
(6) Subsections (2), (4) and (5) are civil penalty provisions.
12
Note:
Part 8 provides for pecuniary penalties for breaches of civil penalty
13
provisions.
14
Definitions
15
(7) For the purposes of this section:
16
accredited wheat exporter has the same meaning as in the old Act.
17
United Nations sanctions provision has the same meaning as in
18
the old Act.
19
wheat export accreditation scheme has the same meaning as in the
20
old Act.
21
14 Post-cancellation reports
22
Scope
23
(1) This section applies if:
24
(a) WEA cancels the accreditation of a company as an accredited
25
wheat exporter on or after 1 September 2012; and
26
(b) as at the commencement of this subsection, the company has
27
not given WEA both of the following:
28
(i) a post-cancellation export report;
29
(ii) a post-cancellation compliance report.
30
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
14 Wheat Export Marketing Amendment Bill 2012 No. , 2012
Reports
1
(2) The company must, within 30 days after the cancellation, give
2
WEA:
3
(a) if the company has not given WEA a post-cancellation
4
report--a post-cancellation report; and
5
(b) if the company has not given WEA a post-cancellation
6
compliance report--a post-cancellation compliance report.
7
Ancillary contraventions
8
(3) A person must not:
9
(a) aid, abet, counsel or procure a contravention of
10
subsection (2); or
11
(b) induce, whether by threats or promises or otherwise, a
12
contravention of subsection (2); or
13
(c) be in any way, directly or indirectly, knowingly concerned in,
14
or party to, a contravention of subsection (2); or
15
(d) conspire with others to effect a contravention of
16
subsection (2).
17
Civil penalty provisions
18
(4) Subsections (2) and (3) are civil penalty provisions.
19
Note:
Part 8 provides for pecuniary penalties for breaches of civil penalty
20
provisions.
21
Definitions
22
(5) For the purposes of this section:
23
accredited wheat exporter has the same meaning as in the old Act.
24
post-cancellation compliance report has the same meaning as in
25
the old Act.
26
post-cancellation export report has the same meaning as in the old
27
Act.
28
30 Transitional--access test
29
(1)
If, at a particular time (the test time) before the commencement of this
30
item, a person passed the old access test in relation to a port terminal
31
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 15
service, the person is taken, on and after the commencement of this
1
item, to have passed the new access test at the test time in relation to the
2
port terminal service.
3
(2)
In this item:
4
new access test means the access test within the meaning of the Wheat
5
Export Marketing Act 2008 as in force immediately after the
6
commencement of this item.
7
old access test means the access test within the meaning of the Wheat
8
Export Marketing Act 2008 as in force immediately before the
9
commencement of this item.
10
31 Part 3 (heading)
11
Repeal the heading, substitute:
12
Part 3--Information-gathering powers
13
32 Division 1 of Part 3 (heading)
14
Repeal the heading, substitute:
15
Division 1--Secretary may obtain information and
16
documents
17
33 Section 25 (heading)
18
Repeal the heading, substitute:
19
25 Secretary may obtain information and documents
20
34 Subsection 25(1)
21
Repeal the subsection, substitute:
22
Scope
23
(1) This section applies if the Secretary has reason to believe that a
24
person has information or a document that is relevant to:
25
(a) determining whether the person is required to pass the access
26
test in relation to a particular port terminal service; or
27
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
16 Wheat Export Marketing Amendment Bill 2012 No. , 2012
(b) determining whether the person passed the access test in
1
relation to a particular port terminal service at a particular
2
time; or
3
(c) a function or power of WEA under the old Act.
4
35 Subsection 25(2)
5
Omit "WEA may, by written notice given to the company, require the
6
company", substitute "The Secretary may, by written notice given to the
7
person, require the person".
8
36 Paragraphs 25(2)(a) and (b)
9
Omit "WEA", substitute "the Secretary".
10
37 Paragraph 25(2)(b)
11
Omit "documents; or", substitute "documents.".
12
38 Paragraph 25(2)(c)
13
Repeal the paragraph.
14
39 Subsection 25(2) (note)
15
Repeal the note.
16
40 Subsection 25(4)
17
Repeal the subsection.
18
41 Subsection 25(5)
19
Omit "company", substitute "person".
20
42 Section 26
21
Repeal the section.
22
43 Subsection 27(1)
23
Omit "(1) WEA", substitute "The Secretary".
24
44 Paragraph 27(1)(a)
25
Omit "or copy".
26
45 Subsection 27(2)
27
Repeal the subsection.
28
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 17
46 Section 28 (heading)
1
Repeal the heading, substitute:
2
28 Secretary may retain documents
3
47 Subsection 28(1)
4
Omit "WEA", substitute "The Secretary".
5
48 Subsections 28(2) and (4)
6
Omit "WEA" (wherever occurring), substitute "the Secretary".
7
49 Divisions 2 and 3 of Part 3
8
Repeal the Divisions, substitute:
9
Division 2--ACCC may obtain information and documents
10
etc.
11
29 ACCC may obtain information and documents etc.
12
For the purposes of this Act, section 155 of the Competition and
13
Consumer Act 2010 applies as if compliance with paragraphs
14
9(1)(c) and 9(3)(b) of this Act were a matter referred to in
15
subsection 155(1) of the Competition and Consumer Act 2010.
16
50 Subsection 57(2)
17
Repeal the subsection.
18
51 Paragraph 59(b)
19
Repeal the paragraph.
20
52 Paragraph 60(c)
21
Omit "staff;", substitute "staff.".
22
53 Paragraphs 60(d) and (e)
23
Repeal the paragraphs.
24
54 Sections 67 to 72
25
Repeal the sections, substitute:
26
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
18 Wheat Export Marketing Amendment Bill 2012 No. , 2012
72 Review by the Administrative Appeals Tribunal
1
Applications may be made to the Administrative Appeals Tribunal
2
for review of the following decisions of the Secretary:
3
(a) a decision under subsection 7(4) to determine that section 7
4
does not apply in relation to a specified provider and to a
5
specified period;
6
(b) a decision under subsection 8(2) to determine that subsection
7
8(1) does not apply in relation to a specified person and to a
8
specified export.
9
55 Subparagraph 73(a)(iii)
10
Omit "is given to WEA under subsection 25(2) or 29(2)", substitute
11
"was given to WEA under subsection 25(2) or 29(2) of the old Act".
12
56 Subparagraph 73(a)(iv)
13
After "29(2)", insert "of the old Act".
14
57 Subparagraph 73(a)(v)
15
After "30(2)", insert "of the old Act".
16
58 Subparagraph 73(a)(vi)
17
After "31(1)(d)", insert "of the old Act".
18
59 Subsections 76(4) and (5)
19
Repeal the subsections, substitute:
20
(4) The pecuniary penalty payable under subsection (1) by a body
21
corporate must not exceed:
22
(a) in the case of a contravention of subsection 8(1) or (5)--
23
3,000 penalty units for each contravention; or
24
(b) in the case of a contravention of subsection 25(5) or (6)--
25
1,500 penalty units for each contravention; or
26
(c) in the case of a contravention of subsection 13(2), 13(4),
27
13(5), 14(2) or 14(3)--1,000 penalty units for each
28
contravention.
29
(5) The pecuniary penalty payable under subsection (1) by a person
30
other than a body corporate must not exceed:
31
Amendments relating to the wheat export accreditation scheme Schedule 1
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 19
(a) in the case of a contravention of subsection 8(1) or (5)--600
1
penalty units for each contravention; or
2
(b) in the case of a contravention of subsection 25(5) or (6)--300
3
penalty units for each contravention.
4
60 Subsection 77(1)
5
Repeal the subsection, substitute:
6
(1) Only the Secretary may apply for a civil penalty order in relation to
7
a contravention of any of the following provisions:
8
(a) subsection 8(1) or (5);
9
(b) subsection 25(5) or (6).
10
(1A) Only WEA may apply for a civil penalty order in relation to a
11
contravention of any of the following provisions:
12
(a) subsection 13(2), (4) or (5);
13
(b) subsection 14(2) or (3).
14
61 Subsection 86(1)
15
Repeal the subsection, substitute:
16
Scope
17
(1) This section applies to proceedings for a civil penalty order against
18
a person for a contravention of any of the following provisions:
19
(a)
subsection
8(1);
20
(b)
subsection
13(2);
21
(c)
subsection
13(4);
22
(d)
subsection
14(2);
23
(e)
subsection
25(5).
24
62 Section 87
25
Repeal the section, substitute:
26
87 Sharing information
27
Department
28
(1) An officer or employee of the Department may give:
29
(a)
WEA;
or
30
Schedule 1 Amendments relating to the wheat export accreditation scheme
Part 1 Amendments
20 Wheat Export Marketing Amendment Bill 2012 No. , 2012
(b)
Customs;
or
1
(c)
the
ACCC;
2
information that is relevant to determining either or both of the
3
following:
4
(d) whether a person is required to pass the access test in relation
5
to a particular port terminal service;
6
(e) whether a person passed the access test in relation to a
7
particular port terminal service at a particular time.
8
Customs
9
(2) A customs officer, or a member of the staff referred to in
10
subsection 15(1) of the Customs Administration Act 1985, may
11
give:
12
(a)
WEA;
or
13
(b) the Department; or
14
(c)
the
ACCC;
15
information that is relevant to determining either or both of the
16
following:
17
(d) whether a person is required to pass the access test in relation
18
to a particular port terminal service;
19
(e) whether a person passed the access test in relation to a
20
particular port terminal service at a particular time.
21
ACCC
22
(3) A member of the staff of the ACCC may give:
23
(a)
WEA;
or
24
(b)
Customs;
or
25
(c)
the
Department;
26
information that is relevant to determining either or both of the
27
following:
28
(d) whether a person is required to pass the access test in relation
29
to a particular port terminal service;
30
(e) whether a person passed the access test in relation to a
31
particular port terminal service at a particular time.
32
33
Amendments relating to the wheat export accreditation scheme Schedule 1
Consequential amendments Part 2
Wheat Export Marketing Amendment Bill 2012 No. , 2012 21
Part 2--Consequential amendments
1
Criminal Code Act 1995
2
63 Subparagraph 136.1(1)(c)(iii) of the Criminal Code
3
Omit "benefit; or", substitute "benefit; and".
4
64 Subparagraph 136.1(1)(c)(iv) of the Criminal Code
5
Repeal the subparagraph.
6
65 Subparagraph 136.1(4)(c)(iii) of the Criminal Code
7
Omit "benefit; or", substitute "benefit; and".
8
66 Subparagraph 136.1(4)(c)(iv) of the Criminal Code
9
Repeal the subparagraph.
10
67 Subsection 136.1(9) of the Criminal Code (definition of
11
wheat export accreditation scheme)
12
Repeal the definition.
13
14
Schedule 2 Amendments relating to Wheat Exports Australia
Part 1 Amendments
22 Wheat Export Marketing Amendment Bill 2012 No. , 2012
Schedule 2--Amendments relating to Wheat
1
Exports Australia
2
Part 1--Amendments
3
Wheat Export Marketing Act 2008
4
1 Section 5 (definition of Australian law)
5
Repeal the definition.
6
2 Section 5 (definition of business)
7
Repeal the definition.
8
3 Section 5 (definition of marketing year)
9
Repeal the definition.
10
4 Section 5 (definition of old Act)
11
Repeal the definition.
12
5 Section 5 (definition of protected confidential information)
13
Repeal the definition.
14
6 Section 5 (definition of related body corporate)
15
Repeal the definition.
16
7 Section 5 (definition of WEA Chair)
17
Repeal the definition.
18
8 Section 5 (definition of WEA member)
19
Repeal the definition.
20
9 Section 5 (definition of WEA staff)
21
Repeal the definition.
22
10 Section 5 (definition of wheat export charge amounts)
23
Repeal the definition.
24
Amendments relating to Wheat Exports Australia Schedule 2
Amendments Part 1
Wheat Export Marketing Amendment Bill 2012 No. , 2012 23
11 Division 5 of Part 2
1
Repeal the Division.
2
12 Part 4
3
Repeal the Part.
4
13 Part 5 (heading)
5
Repeal the heading, substitute:
6
Part 5--Wheat Industry Special Account
7
14 Divisions 1 to 5 of Part 5
8
Repeal the Divisions.
9
15 Division 6 of Part 5
10
Repeal the Division, substitute:
11
Division 6--Wheat Industry Special Account
12
58 Wheat Industry Special Account
13
(1) The Wheat Exports Australia Special Account that was,
14
immediately before the commencement of this subsection, in
15
existence under this Act, is continued in existence as the Wheat
16
Industry Special Account.
17
(2) The Wheat Industry Special Account is a Special Account for the
18
purposes of the Financial Management and Accountability Act
19
1997.
20
59 Credits to the Wheat Industry Special Account
21
There must be credited to the Wheat Industry Special Account
22
amounts equal to amounts received for the purpose of the Wheat
23
Industry Special Account.
24
Note:
An Appropriation Act may contain a provision to the effect that, if any
25
of the purposes of a Special Account is a purpose that is covered by an
26
item in the Appropriation Act (whether or not the item expressly refers
27
to the Special Account), then amounts may be debited against the
28
appropriation for that item and credited to that Special Account.
29
Schedule 2 Amendments relating to Wheat Exports Australia
Part 1 Amendments
24 Wheat Export Marketing Amendment Bill 2012 No. , 2012
60 Purpose of the Wheat Industry Special Account
1
The purpose of the Wheat Industry Special Account is funding a
2
measure or program, if the following conditions are satisfied:
3
(a) the purpose of the measure or program is to assist the wheat
4
export industry, or a sector of that industry;
5
(b) the Minister has approved the funding.
6
Note:
See section 21 of the Financial Management and Accountability Act
7
1997 (debits from Special Accounts).
8
16 Divisions 7 to 9 of Part 5
9
Repeal the Divisions.
10
17 Part 7
11
Repeal the Part.
12
18 Paragraph 76(4)(b)
13
Omit "contravention; or", substitute "contravention.".
14
19 Paragraph 76(4)(c)
15
Repeal the paragraph.
16
20 Subsection 77(1A)
17
Repeal the subsection.
18
21 Paragraphs 86(1)(b), (c) and (d)
19
Repeal the paragraphs.
20
22 Paragraphs 87(1)(a), (2)(a) and (3)(a)
21
Repeal the paragraphs.
22
23
Amendments relating to Wheat Exports Australia Schedule 2
Transitional provisions Part 2
Wheat Export Marketing Amendment Bill 2012 No. , 2012 25
Part 2--Transitional provisions
1
Division 1--Preliminary
2
23 Definitions
3
In this Part:
4
Appropriation Act means an Act appropriating money for expenditure
5
out of the Consolidated Revenue Fund.
6
asset means:
7
(a) any legal or equitable estate or interest in real or personal
8
property, whether actual, contingent or prospective; and
9
(b) any right, power, privilege or immunity, whether actual,
10
contingent or prospective.
11
assets official, in relation to an asset other than land, means the person
12
or authority who, under:
13
(a) a law of the Commonwealth, a State or a Territory; or
14
(b) a trust instrument; or
15
(c)
otherwise;
16
has responsibility for keeping a register in relation to assets of the kind
17
concerned.
18
commencement time means the commencement of this Part.
19
departmental item means a departmental item in the most recent
20
Appropriation Act.
21
Finance Minister means the Minister who administers the Financial
22
Management and Accountability Act 1997.
23
land means any legal or equitable estate or interest in real property,
24
whether actual, contingent or prospective.
25
land registration official, in relation to land, means the Registrar of
26
Titles or other proper officer of the State or Territory in which the land
27
is situated.
28
liability means any liability, duty or obligation, whether actual,
29
contingent or prospective.
30
Secretary means the Secretary of the Department.
31
WEA has the same meaning as in the Wheat Export Marketing Act
32
2008.
33
Schedule 2 Amendments relating to Wheat Exports Australia
Part 2 Transitional provisions
26 Wheat Export Marketing Amendment Bill 2012 No. , 2012
Division 2--Transfer of assets and liabilities
1
24 Vesting of assets of WEA
2
(1)
This item applies to the assets of WEA immediately before the
3
commencement time.
4
(2)
At the commencement time, the assets cease to be assets of WEA and
5
become assets of the Commonwealth without any conveyance, transfer
6
or assignment. The Commonwealth becomes the successor in law in
7
relation to the assets.
8
25 Vesting of liabilities of WEA
9
(1)
This item applies to the liabilities of WEA immediately before the
10
commencement time.
11
(2)
At the commencement time, the liabilities cease to be liabilities of WEA
12
and become liabilities of the Commonwealth without any conveyance,
13
transfer or assignment. The Commonwealth becomes the successor in
14
law in relation to the liabilities.
15
26 Certificates relating to vesting of land
16
(1)
This item applies if:
17
(a) any land vests in the Commonwealth under this Division; and
18
(b) there is lodged with a land registration official a certificate
19
that:
20
(i) is signed by the Minister; and
21
(ii) identifies the land, whether by reference to a map or
22
otherwise; and
23
(iii) states that the land has become vested in the
24
Commonwealth under this Division.
25
(2)
The land registration official may:
26
(a) register the matter in a way that is the same as, or similar to,
27
the way in which dealings in land of that kind are registered;
28
and
29
(b) deal with, and give effect to, the certificate.
30
(3)
A certificate made under subitem (1) is not a legislative instrument.
31
27 Certificates for vesting of assets other than land
32
Amendments relating to Wheat Exports Australia Schedule 2
Transitional provisions Part 2
Wheat Export Marketing Amendment Bill 2012 No. , 2012 27
(1)
This item applies if:
1
(a) an asset other than land vests in the Commonwealth under
2
this Division; and
3
(b) there is lodged with an assets official a certificate that:
4
(i) is signed by the Minister; and
5
(ii) identifies the asset; and
6
(iii) states that the asset has become vested in the
7
Commonwealth under this Division.
8
(2)
The assets official may:
9
(a) deal with, and give effect to, the certificate as if it were a
10
proper and appropriate instrument for transactions in relation
11
to assets of that kind; and
12
(b) make such entries in the register in relation to assets of that
13
kind as are necessary, having regard to the effect of this
14
Division.
15
(3)
A certificate made under subitem (1) is not a legislative instrument.
16
28 Exemption from stamp duty and other State or Territory
17
taxes
18
(1)
No stamp duty or other tax is payable under a law of a State or a
19
Territory in respect of an exempt matter, or anything connected with an
20
exempt matter.
21
(2) An
exempt matter is:
22
(a) the vesting of an asset or liability under this Division; or
23
(b) the operation of this Part in any other respect.
24
(3)
The Minister may certify in writing:
25
(a) that a specified matter is an exempt matter; or
26
(b) that a specified thing was connected with a specified exempt
27
matter.
28
(4)
A certificate made under subitem (3) is not a legislative instrument.
29
29 Certificates taken to be authentic
30
A document that appears to be a certificate made or issued under this
31
Part:
32
(a) is taken to be such a certificate; and
33
Schedule 2 Amendments relating to Wheat Exports Australia
Part 2 Transitional provisions
28 Wheat Export Marketing Amendment Bill 2012 No. , 2012
(b) is taken to have been properly given;
1
unless the contrary is established.
2
Division 3--Transfer of other matters
3
30 Transitional--acts of WEA to be attributed to the
4
Commonwealth
5
(1)
This item applies to anything done by, or in relation to, WEA before the
6
commencement time.
7
(2)
After the commencement time, the thing has effect as if it had been
8
done by, or in relation to, the Commonwealth.
9
31 Transitional--substitution of the Commonwealth as a
10
party in certain proceedings
11
(1)
This item applies to any proceedings:
12
(a) that were pending in any court or tribunal immediately before
13
the commencement time; and
14
(b) to which WEA was a party.
15
(2)
The Commonwealth is substituted for WEA, from the commencement
16
time, as a party to those proceedings.
17
32 Transitional--transfer of records to the Department
18
(1)
This item applies to any records or documents that:
19
(a) were in the possession of WEA immediately before the
20
commencement time; and
21
(b)
relate
to
WEA.
22
(2)
The records and documents are to be transferred to the Department after
23
the commencement time.
24
33 Transitional--transfer of Ombudsman investigations
25
If:
26
(a) before the commencement time, a complaint was made to the
27
Ombudsman, or the Ombudsman began an investigation,
28
under the Ombudsman Act 1976 in relation to action taken by
29
WEA; and
30
Amendments relating to Wheat Exports Australia Schedule 2
Transitional provisions Part 2
Wheat Export Marketing Amendment Bill 2012 No. , 2012 29
(b) immediately before the commencement time, the
1
Ombudsman had not finally disposed of the matter in
2
accordance with the Ombudsman Act 1976;
3
the Ombudsman Act 1976 applies after the commencement time as if
4
that action had been taken by the Department.
5
34 References in certain instruments to Wheat Exports
6
Australia
7
(1) If:
8
(a) an instrument is in force immediately before the
9
commencement of this item; and
10
(b) the instrument contains a reference to Wheat Exports
11
Australia;
12
the instrument has effect from the commencement time as if the
13
reference to Wheat Exports Australia was a reference to the
14
Commonwealth.
15
(2)
The Minister may, by writing, determine that subitem (1) does not apply
16
in relation to a specified reference.
17
(3)
A determination under subitem (2) is not a legislative instrument.
18
Division 4--Other transitional matters
19
35 Transitional--secrecy of information obtained under the
20
Wheat Export Marketing Act 2008
21
(1)
This item applies in relation to the following provisions (the
22
information provisions) of the Wheat Export Marketing Act 2008 as in
23
force immediately before the commencement time:
24
(a) the definition of WEA in section 5;
25
(b) the definition of WEA member in section 5;
26
(c) the definition of WEA staff in section 5;
27
(d) the definition of protected confidential information in
28
section 5;
29
(e)
Part
7.
30
(2)
Despite the repeal of the information provisions by this Schedule, those
31
provisions continue to apply, in relation to protected confidential
32
information disclosed to, or obtained by, a person before the
33
Schedule 2 Amendments relating to Wheat Exports Australia
Part 2 Transitional provisions
30 Wheat Export Marketing Amendment Bill 2012 No. , 2012
commencement time, as if those repeals had not happened and as if the
1
following paragraph were added at the end of subsection 74(3) of that
2
Act:
3
; (p) the disclosure is to an officer or employee of the Department
4
for a purpose that is relevant to a function of the Department.
5
36 Appropriation of money
6
(1)
For the purposes of the operation of an Appropriation Act after the
7
commencement time, references to WEA are to be read as references to
8
the Department.
9
(2)
If an amount (the Account balance) stands to the credit of the Wheat
10
Industry Special Account immediately after the commencement time,
11
the Minister must, by writing, determine that one or more specified
12
departmental items for the Department are to be increased by specified
13
amounts.
14
(3)
The sum of the amounts specified in the determination must equal:
15
(a) if the Account balance is not more than $500,000--the
16
Account balance; and
17
(b)
otherwise--$500,000.
18
(4)
In making the determination, the Minister must comply with any written
19
directions given by the Finance Minister.
20
(5)
If the Minister makes a determination under subitem (2):
21
(a) the sum of the amounts specified in the determination is
22
debited from the Wheat Industry Special Account; and
23
(b) the departmental items specified in the determination are
24
taken to be increased in accordance with the determination.
25
(6)
Neither a determination made under subitem (2) nor a direction under
26
subitem (4) is a legislative instrument.
27
37 Compensation for acquisition of property
28
(1)
If the operation of this Part would result in an acquisition of property
29
from a person otherwise than on just terms, the Commonwealth is liable
30
to pay a reasonable amount of compensation to the person.
31
(2)
If the Commonwealth and the person do not agree on the amount of the
32
compensation, the person may institute proceedings in a court of
33
Amendments relating to Wheat Exports Australia Schedule 2
Transitional provisions Part 2
Wheat Export Marketing Amendment Bill 2012 No. , 2012 31
competent jurisdiction for the recovery from the Commonwealth of
1
such reasonable amount of compensation as the court determines.
2
(3)
In this item:
3
acquisition of property has the same meaning as in paragraph 51(xxxi)
4
of the Constitution.
5
just terms has the same meaning as in paragraph 51(xxxi) of the
6
Constitution.
7
38 Delegation by Minister
8
(1)
The Minister may, by writing, delegate all or any of his or her powers
9
and functions under this Part to a person.
10
(2)
The delegate must be:
11
(a) the Secretary; or
12
(b) an SES employee, or acting SES employee, in the
13
Department.
14
Note: The
expressions
SES employee and acting SES employee are defined in the Acts
15
Interpretation Act 1901.
16
(3)
In exercising powers or functions under a delegation, the delegate must
17
comply with any directions of the Minister.
18
39 Transitional--regulations
19
(1)
The Governor-General may make regulations prescribing matters of a
20
transitional nature (including prescribing any saving or application
21
provisions) relating to the amendments or repeals made by this
22
Schedule.
23
(2)
The regulations may provide that the provisions of this Part are taken to
24
be modified as set out in the regulations. Those provisions then have
25
effect as if they were so modified.
26
(3)
Subitem (2) does not limit subitem (1).
27
28
Schedule 3 Repeal of the Wheat Export Marketing Act 2008
32 Wheat Export Marketing Amendment Bill 2012 No. , 2012
Schedule 3--Repeal of the Wheat Export
1
Marketing Act 2008
2
3
Wheat Export Marketing Act 2008
4
1 The whole of the Act
5
Repeal the Act.
6

 

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