Commonwealth Numbered Acts

HORTICULTURAL LEGISLATION AMENDMENT ACT 1989 No. 46 of 1989 - SECT 11

11. After section 7 of the Principal Act the following sections are inserted:
Liability of sellers of prescribed goods or services

"7A. (1) For better securing the payment of charge, a person who has been paid
an amount on account of charge or in relation to penalty under subsection (2),
shall, within a prescribed period after the receipt of that amount, pay that
amount to the Commonwealth.

"(2) Subject to this section, a person to whom prescribed goods or services in
relation to chargeable horticultural products of a particular kind are sold
shall, within a prescribed period after the purchase of those goods or
services, pay to the person selling those goods or services:

   (a)  an amount on account of the charge that would be payable by that
        first-mentioned person on products of that kind on their exportation
        from Australia after being subjected to the process facilitated by
        those goods or services; and

   (b)  an amount equal to the amount of any penalty payable by that
        first-mentioned person under section 8 in relation to charge by reason
        of a previous purchase of such prescribed goods or services.

"(3) A person is not required to make a payment under paragraph (2) (a) by
reason of the purchase of prescribed goods or services in relation to
chargeable horticultural products of a particular kind if he or she informs
the person selling those goods or services, by notice in writing:

   (a)  where chargeable horticultural products of that kind are not also
        leviable horticultural products:

        (i)    that he or she does not intend to use those goods or services
               in producing chargeable horticultural products of that kind; or

        (ii)   that he or she does intend to use those goods or services in
               producing chargeable horticultural products of that kind but
               does not intend to export those products from Australia; and

   (b)  where chargeable horticultural products of that kind are also leviable
        horticultural products:

        (i)    that he or she does not intend to use those goods or services
               in producing chargeable horticultural products, or leviable
               horticultural products, of that kind; or

        (ii)   that he or she does intend to use those goods and services in
               producing chargeable horticultural products, or leviable
               horticultural products, of that kind but does not intend, in
               the case of chargeable horticultural products, to export those
               products from Australia, or, in the case of leviable
               horticultural products, to sell those products or to use them
               in the production of other goods.

"(4) Where a person makes a payment to a seller of prescribed goods or
services in relation to chargeable horticultural products of a particular kind
on account of charge that would be payable on products of that kind if they
were exported from Australia after being subjected to the process facilitated
by those goods or services, the first-mentioned person is, on making that
payment, discharged from liability to pay charge to the Commonwealth on
chargeable horticultural products of that kind that are so exported after
being subjected to the process facilitated by those goods or services but the
liability of the seller under subsection (1) is not affected.

"(5) Where a person makes a payment of an amount of penalty to a seller of
prescribed goods or services in relation to chargeable horticultural products
of a particular kind, being penalty payable by reason of a previous purchase
of such goods or services, the person is, on making that payment, discharged
from liability to pay that penalty to the Commonwealth but the liability of
the seller under subsection (1) is not affected.

"(6) Notwithstanding that horticultural products of a particular kind are both
leviable horticultural products and chargeable horticultural products, those
horticultural products shall be taken, subject to the operation of subsection
7A (7) of the Levy Collection Act, to be leviable horticultural products only,
for all purposes relating to the operation of this section (other than
subsection (3)).

"(7) Where a person has paid charge in respect of horticultural products, that
person is not liable to pay an amount on account of charge in respect of those
products under this section. Collection agreements

"7B. (1) The Commonwealth may enter into an agreement with a State, the
Australian Capital Territory or the Northern Territory with respect to the
collection in that State or Territory, on behalf of the Commonwealth:

   (a)  of charge from the owner of chargeable horticultural products of a
        particular kind; or

   (b)  of amounts payable under subsection 7 (1) (in this section called
        'related amounts') from the exporting agent of the owner of such
        products; by that State or Territory or by an authority of that State
        or Territory that is specified in the agreement.

"(2) Without limiting the generality of the matters that may be provided for
in an agreement entered into with a State or Territory, such an agreement may
provide for:

   (a)  the keeping by the collecting authority in respect of the agreement of
        accounts and records in relation to amounts of charge or related
        amounts collected by the collecting authority;

   (b)  the payment by the collecting authority to the Commonwealth of amounts
        of charge or related amounts collected by the collecting authority;

   (c)  the giving by the collecting authority to the Minister of information
        with respect to amounts of charge or related amounts collected by the
        collecting authority and of amounts paid by the collecting authority
        to the Commonwealth; and

   (d)  the inspection and audit of accounts and records kept by the
        collecting authority with respect to amounts of charge or related
        amounts collected by the collecting authority.

"(3) While an agreement entered into under subsection (1) with a State or
Territory is in force in relation to chargeable horticultural products of a
particular kind:

   (a)  payment of charge or related amounts in respect of products of that
        kind exported from Australia that are despatched for that purpose from
        a place in that State or Territory shall be made to the collecting
        authority in respect of the agreement; and

   (b)  where the agreement provides that an authority of that State or
        Territory shall be the collecting authority in respect of the
        agreement-that authority may retain out of any money payable by it to
        any person an amount not exceeding an amount of charge or related
        amount that the person is liable to pay.

"(4) Where a person pays an amount of charge or a related amount in accordance
with paragraph (3) (a), or an amount in respect of charge or of a related
amount is deducted in accordance with paragraph (3) (b) from money payable to
the person, the person is, to the extent of the amount so paid or deducted,
discharged from liability to pay charge or a related amount, as the case
requires, to the Commonwealth.

"(5) The Audit Act 1901 does not apply in relation to charge or related
amounts collected by a collecting authority but the operation of that Act in
relation to money paid by a collecting authority to the Commonwealth is not
affected.

"(6) The Commonwealth shall not, in exercising its powers under subsection
(1):

   (a)  discriminate between States or parts of States within the meaning of
        paragraph 51 (ii) of the Constitution; or

   (b)  give preference to one State or any part thereof over another State or
        any part thereof within the meaning of section 99 of the
        Constitution.".