Commonwealth Numbered Acts

HORTICULTURAL LEGISLATION AMENDMENT ACT 1989 No. 46 of 1989 - SECT 23

23. 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 levy, a person who has been paid
an amount on account of levy 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 leviable 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 levy that would be payable by that
        first-mentioned person on products of that kind on their sale or use
        in the production of other goods 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 levy 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 leviable
horticultural products of a particular kind if he or she informs the person
selling those goods or services, by notice in writing:

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

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

        (ii)   that he or she does intend to use those goods or services in
               producing leviable horticultural products of that kind but does
               not intend to sell those products or use them in the production
               of other goods; and

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

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

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

"(4) Where a person makes a payment to a seller of prescribed goods or
services in relation to leviable horticultural products of a particular kind
on account of levy that would be payable on products of that kind if they were
sold, or used in the production of other goods, 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 levy on leviable
horticultural products of that kind that are so sold or used 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 leviable 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 subsection (7), to be
leviable horticultural products only, for all purposes relating to the
operation of this section (other than subsection (3)).

"(7) In the event that, after payment of an amount on account of levy under
this Act to the seller of prescribed goods or services, those goods or
services are used in the production, or preparation for export from Australia,
of chargeable horticultural products:

   (a)  the amount paid to the seller shall be taken to have been paid on
        account of charge under paragraph 7A (2) (a) of the Export Charge
        Collection Act; and

   (b)  any payment by the seller to the Commonwealth of an amount equal to
        the amount referred to in paragraph (a) shall be taken to have been
        made by the seller to the Commonwealth under subsection 7A (1) of the
        Export Charge Collection Act.

"(8) Where a person has paid levy in respect of horticultural products, that
person is not liable to pay an amount on account of levy 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 levy from a producer of leviable horticultural products of a
        particular kind; or

   (b)  of amounts payable under subsection 7 (1) (in this section called
        'related amounts') from a selling agent of, or a first purchaser from,
        a producer 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 levy or related amounts
        collected by the collecting authority;

   (b)  the payment by the collecting authority to the Commonwealth of amounts
        of levy 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 levy 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 levy 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 leviable horticultural products of a
particular kind:

   (a)  payment of levy or related amounts in respect of products of that kind
        that are sold in that State or Territory or used in that State or
        Territory in the production of other goods 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 or levy or related amount
        that the person is liable to pay.

"(4) Where a person pays an amount of levy or a related amount in accordance
with paragraph (3) (a), or an amount in respect of levy 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 levy or a related amount, as the case
requires, to the Commonwealth.

"(5) The Audit Act 1901 does not apply in relation to levy 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.".