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Primary Industries and Other Acts Amendment Bill 2008
Primary Industries and Other Acts
Amendment Bill 2008
Explanatory Notes
General Outline
Short title of the Bill
The short title of the Bill is the Primary Industries and Other Acts
Amendment Bill 2008 (`the Bill').
Policy objectives of the Bill
The Bill has two major policy objectives:
ˇ to amend the Rural and Regional Adjustment Act 1994, principally
to broaden the potential for QRAA's operations; and
ˇ to amend the Sugar Industry Act 1999, the Land Act 1994 and the
Land Title Act 1994 to dissolve the office of the Sugar Industry
Commissioner (`the commissioner') and to provide an alternative
approach for the future administration of sugar access rights.
The amendments to the Rural and Regional Adjustment Act 1994 will:
ˇ allow QRAA to administer approved assistance schemes for the
benefit of businesses and not for profit agencies in Queensland,
irrespective of their size and connection with the rural or regional
sector, when such administration is required by the Queensland
Government;
ˇ allow QRAA to administer authorised interstate schemes for the
benefit of the rural and regional sector, and primary producers
and small businesses when they are experiencing temporary
difficulty in and for the Commonwealth and other States;
ˇ allow the chief executives of Queensland Treasury and the
Department of Primary Industries and Fisheries (DPI&F) to each
nominate a senior executive (as defined in the Public Service Act
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Primary Industries and Other Acts Amendment Bill 2008
1996) to attend meetings of the QRAA board of directors and to
act in the role of director, and provide that the senior executive
need not be from the chief executive's department; and
ˇ clarify that a quorum of the board includes the government
directors.
The amendments to the Sugar Industry Act 1999, the Land Act 1994 and the
Land Title Act 1994 will:
ˇ dissolve the commissioner;
ˇ provide for the Land Court to assume jurisdiction for
applications regarding non consent sugar access rights matters;
ˇ preserve current sugar access rights and provide for future sugar
access rights;
ˇ provide that future sugar access rights are recorded on land titles
and allow cane railway easements to be registered as easements
on titles; and
ˇ deal with spent and expiring transitional provisions and relevant
consequential amendments that flow from the dissolution of the
commissioner.
Reasons for the Bill
Reasons regarding QRAA
QRAA is a statutory authority established under the Rural and Regional
Adjustment Act 1994 (RRA Act) to deliver financial and other assistance
and incentives. Primarily, the object of the assistance and incentives is to
foster the development of a more productive and sustainable rural and
regional sector.
QRAA's activities are principally directed at providing assistance to rural
and regional producers whose businesses show long-term viability,
although QRAA will also help persons leave rural and regional production.
QRAA may also assist small businesses (other than rural and regional
producers), and other elements of Queensland's economy, in periods when
they are experiencing temporary downturn.
As a result of a legislative review of the RRA Act in 2003, the QRAA
charter was expanded to include the regional sector but the metropolitan
area has until now remained outside the scope of QRAA's operations.
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Primary Industries and Other Acts Amendment Bill 2008
It is considered that the Government should have the flexibility to utilise
QRAA's expertise and systems to deliver targeted assistance to businesses
and not for profit organisations in Queensland, irrespective of their size and
connection with the rural or regional sector. This requires the scope of the
Act to expand beyond the rural and regional sector and those experiencing
temporary difficulty and, accordingly, amendments are included in the Bill
to enable this to occur for QRAA's operation within Queensland.
Further, the legislative review in 2003 also recommended that the RRA Act
be amended to empower QRAA to administer Government assistance
schemes for other jurisdictions within Australian borders.
In this regard, in July 2005, QRAA sought the support of the Minister for
Primary Industries and Fisheries to undertake the administration of a
Commonwealth Government assistance scheme in New South Wales.
However, it was considered at that time that the objects of the RRA Act
were not wide enough to enable QRAA to operate such an assistance
scheme. A provision in the Acts Interpretation Act 1954--which provides
that the jurisdiction of a Queensland legislative instrument is presumed to
be restricted to Queensland, unless otherwise expressly stated--was
considered applicable.
While there are not likely to be many future opportunities for QRAA to
administer schemes for the benefit of the rural and regional sector in other
jurisdictions, such opportunities do arise on occasions, and the Bill
provides the certainty for QRAA to provide such a service, subject to
Ministerial authorisation to enter into an arrangement to administer.
Administration of assistance schemes for other jurisdictions would be on a
full cost pricing basis and would strengthen QRAA's skills base and
potentially reduce overheads.
Under the RRA Act, the chief executive of the department which
administers the RRA Act (currently the DPI&F), and the chief executive of
the department which administers the Financial Administration and Audit
Act 1977 (currently Queensland Treasury) are ex officio directors of
QRAA. The amendments will clarify that each chief executive may
delegate his/her role as a director to a senior executive (as defined in the
Public Service Act 1996), who need not be from that chief executive's
department. The delegate will be required to have suitable skills and
experience.
The proposed amendments will also clarify that the government directors
will be counted towards a quorum of the QRAA board, this will assist a
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Primary Industries and Other Acts Amendment Bill 2008
quorum to be reached and thus allow for more efficient conduct of board
meetings.
Reasons regarding sugar
As a result of the sugar industry reforms in 2004, 2005 and 2007, the
responsibilities of the office of the commissioner have been considerably
reduced.
Over the course of the reforms, the future of the office has been subject to
consultation between the DPI&F and the sugar industry. In 2007, being
aware of the commissioner's reduced responsibilities following industry
deregulation, the Queensland government indicated its intention to phase
out the office.
Since the 2007 amendments to the commissioner's role under the Primary
Industries Acts Amendment and Repeal Act 2007, the commissioner's
remaining duties have been to:
ˇ decide the granting, variation and cancellation of sugar access
rights (namely permits to pass and cane railway easements);
ˇ maintain the access rights register; and
ˇ assist with the mediation and arbitration of disputes regarding the
supply contract process for 3 further years, in circumstances
where a cane supply contract had referred to the commissioner in
this capacity and that supply contract was on foot. (Note: Such
assistance has never been requested by the industry and,
accordingly, has never been provided by the commissioner.
Instead, parties to disputes have been using commercial dispute
resolution processes).
The Sugar Industry Act 1999 creates two types of statutory sugar access
rights:
ˇ Cane railway easements-These sugar access rights are granted to
a mill owner to facilitate harvest and supply of cane. They are
essentially a permanent encumbrance on the subject land while
the mill operates and the railway line remains in place.
ˇ Permits to pass-These sugar access rights confer a right to a cane
grower or mill owner to pass over another person's land to
facilitate harvest and supply of cane or to service a cane railway
easement.
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Primary Industries and Other Acts Amendment Bill 2008
As at 30 June 2007, there were 4,795 cane railway easements and 198
permits recorded in the access rights register.
Sugar access rights may be granted by consent (that is, with the agreement
of the landholder of the affected land).
Alternatively, in the absence of consent between the parties, sugar access
rights may be granted by the commissioner. In such circumstances, the
commissioner has the ability to order the immediate grant, or variation, of a
non consent access right. The normal process rights afforded to an affected
landholder-that is, notice, objections, appeals and compensation (payable
by the applicant to the landholder)-are determined after the event.
As part of the proposed phasing out process, an Access Rights Working
Group (`Working Group') was convened to investigate alternatives for the
future administration of sugar cane access rights. The Working Group was
chaired by the DPI&F and consisted of representatives from the Australian
Sugar Milling Council (ASMC), CANEGROWERS, Queensland
Transport, and the Departments of Natural Resources and Water and
Justice and Attorney-General.
The Working Group found that the office of the commissioner was not
sustainable and recommended that it be dissolved by 30 June 2008. The
commissioner supports this proposal and, in recent years, has been working
toward the dissolution of the office.
The major recommendations of the Working Group were that:
ˇ the office of the Sugar Industry Commissioner be dissolved by 30
June 2008;
ˇ there be ongoing legislation to preserve current sugar access
rights and to provide for future sugar access rights;
ˇ future sugar access rights are recorded on land titles and that
legislation regarding land titles be amended to allow cane railway
easements to be registered as easements on titles; and
ˇ the Land Court assume jurisdiction for applications regarding
non consent sugar access rights matters.
These recommendations are the basis of the policy to be implemented by
legislative changes to amend the Sugar Industry Act 1999, the Land Act
1994 and the Land Title Act 1994.
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Primary Industries and Other Acts Amendment Bill 2008
The Bill will continue to enable sugar access rights to be granted by
consent between the parties and will transfer the commissioner's existing
role regarding non consent sugar access rights to the Land Court.
Current access rights are at present being recorded on the relevant land title
registers as notices, and future access rights will be recorded on the
relevant land title registers when the Titles Office is notified of the interest
and then recorded or registered when the Titles Office formalities are
completed. Amendments to the Land Act 1994 and the Land Title Act
1994 will allow registration of future cane railway access rights as
easements on affected titles by inserting a 'public utility provider' category
for sugar mill owners to allow registration as an easement in gross. A time
period will need to be specified for future permits to pass.
In preparation for the dissolution of the commissioner, each current cane
railway easement and permit to pass is being recorded by the Titles Office
as a notice on the affected land title. The recording of notices will ensure
that all current access rights are recorded permanently and accurately as
notices on Queensland's Automated Titles System and that searches can be
conducted efficiently. Further, the notices will resolve a major difficulty
with the accuracy of the current access rights register, by providing
automatic updates for ownership and land description changes.
Amendments to Chapter 8 include a sunset clause to align the provision
with a related end date of the transitional arrangements that were in place
as part of the 2005 reforms to the single sugar desk. Further, the
amendments deal with spent and expiring transitional provisions and
relevant consequential amendments that flow from the dissolution of the
commissioner.
The new Chapter 9 sets out a range of necessary transitional provisions
including a provision to provide for the Land Court to assume
responsibility for the continuation of any matters not yet completed at the
date of dissolution, by the commissioner.
The existing transitional process regarding cane supply contract dispute
resolution in Chapter 9 of the Sugar Industry Act 1999, which was to expire
on 30 June 2010, is to be removed. This process has not been used by
industry since it was inserted in 2004. Instead, parties to a dispute are able
to use, and have been using, commercial processes for such disputes.
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Primary Industries and Other Acts Amendment Bill 2008
How the policy objectives will be achieved
Passage of the Bill will achieve Queensland's policy objectives by
amendment of the relevant legislative provisions.
The RRA Act requires that a review be conducted by October 2009 and
that a report be tabled in the Legislative Assembly. The required review
will provide an opportunity to fully consider QRAA's future direction and
to evaluate the impact of the proposed amendments.
Alternative method of achieving the policy objectives
There are no alternative methods of achieving the Government's policy
objectives in relation to the RRA Act amendments. The impact of these
amendments on the delivery of QRAA's core business is expected to be
minimal. QRAA's primary focus will continue to be Queensland's rural
and regional sector; however, QRAA will have the potential to deliver a
wider range of Government assistance measures.
In relation to sugar, the Working Group examined a range of options
including the removal of special purpose legislation and the adoption of
normal commercial practice for the acquisition of lands required for the
harvest and delivery of cane to a mill. Ongoing legislation was found to be
warranted, based mainly on consideration of the cane railway system's
contribution to Queensland's freight infrastructure, the need to maintain
harvest efficiency and industry competitiveness, and the continuing ability
to safeguard the property rights of individuals.
Estimated cost for Government implementation
There will be no appreciable administrative costs in relation to this Bill.
Empowering QRAA to administer broader schemes will strengthen
QRAA's capacity to maintain its existing core skills and infrastructure by
providing continuity of work and opportunities for skills development for
temporary staff. A pool of skilled staff will then be available to administer
assistance for any new event affecting the rural and regional and business
sectors in Queensland. In addition, authorised interstate schemes will be
provided on a full cost pricing basis.
No significant financial impacts are anticipated from the sugar
amendments. Currently, the commissioner's 2007-2008 budget is being
provided by the DPI&F, with costs shared jointly by DPI&F, the ASMC
and CANEGROWERS. Previously, industry had funded this office by
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Primary Industries and Other Acts Amendment Bill 2008
deductions from the now deregulated vesting of the Queensland sugar crop
in Queensland Sugar Limited. Upon dissolution of the commissioner's
office, the Land Court has indicated that it expects to be able to handle the
anticipated volume of access rights applications within its existing
resources and the Titles Office will register access rights on affected land
titles, also within their existing resources.
The amendments aim to provide an alternative, more cost effective means
of administering the existing access rights system in a way which better
accords with Government land registration practices.
Consistency with the Fundamental Legislative Principles
The Bill has been drafted with regard to fundamental legislative principles
as defined in section 4 of the Legislative Standards Act 1992.
Consultation
With regard to the RRA amendments, AgForce and the Queensland
Farmers Federation (QFF) were consulted. AgForce and QFF support
these proposals.
Consultation on the amendments has been undertaken with Queensland
Treasury and the Department of the Premier and Cabinet as well as QRAA.
In connection with the sugar amendments, consultation has been conducted
with the major sugar milling and growing organisations, namely the ASMC
and CANEGROWERS (both of which also participated in the Working
Group). The Boards of both ASMC and CANEGROWERS have endorsed
the proposal for the future administration of access rights.
Queensland Treasury, Queensland Transport, and the Departments of the
Premier and Cabinet, Natural Resources and Water, Justice and
Attorney-General, and Tourism, Regional Development and Industry have
been consulted and support the sugar amendments.
The proposal essentially involves the continuation of the existing system
for the administration of access rights by alternative means. Notification of
the new arrangements will be publicly available on the commissioner's
website and the commissioner will formally advise legal conveyancing
practitioners of the new arrangements prior to the dissolution of the office.
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Primary Industries and Other Acts Amendment Bill 2008
With respect to the spent and expiring provisions to be amended or
removed, the Sugar Industry Commissioner and Queensland Sugar Limited
were consulted and agreed there were no issues with the proposed changes.
Notes on Provisions
Part 1 Preliminary
Clause 1 Short Title
Clause 1 states that the short title of the Act is the Primary Industries and
Other Acts Amendment Act 2008.
Clause 2 Commencement
Clause 2 provides that Parts 3, 4 and 5, which relate to amendment of the
Sugar Industry Act 1999, Land Act 1994 and the Land Title Act 1994
commence on 1 July 2008 or the date of assent, whichever is the later.
Part 2 Amendment of Rural and
Regional Adjustment Act 1994
Act amended in pt 2
Clause 3 provides that Part 2 amends the Rural and Regional Adjustment
Act 1994 (RRA Act).
Replacement of s 3 (Object of Act)
Clause 4 removes the current section 3 regarding the objects of the RRA
Act, and inserts a new section which sets out objects that better fit the RRA
Act following the proposed changes to QRAA's activities by this Bill. The
new section 3 states that the primary ongoing object of the RRA Act is for
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Primary Industries and Other Acts Amendment Bill 2008
QRAA to administer assistance schemes that foster the development of a
more productive and sustainable rural and regional sector in Queensland.
The new section 3 states that QRAA may also administer schemes that give
assistance to primary producers, small businesses or other elements of
Queensland's economy, in periods where they are experiencing temporary
difficulty or to otherwise benefit Queensland's economy. Further, QRAA
may also administer schemes for the Commonwealth and other States in
rural and regional sectors outside Queensland.
Amendment of s 4 (Definitions)
Clause 5 inserts new definitions into section 4 of the RRA Act. It inserts a
definition of `authorised interstate scheme' and provides that an `approved
scheme' is an authorised interstate scheme or an approved assistance
scheme. Further, it amends the definition of `authority's assistance funds'
so that the definition encompasses authorised interstate schemes as well as
approved assistance schemes.
Amendment of s 8 (Authority's functions)
Clause 6 inserts a new function of QRAA, to provide that such functions
include providing for administering authorised interstate schemes.
Amendment of s 9 (Authority's powers)
Clause 7 inserts a new power of QRAA, to expressly provide that QRAA
may exercise its powers both inside and outside of Queensland, within the
ambit of the amended object (section 3).
Insertion of new s 10
Clause 8 inserts a new section 10 which provides that QRAA may only
give financial assistance under an approved scheme.
Amendment of s 11 (Approved assistance schemes)
Clause 9 removes subsection 11(6), as this subsection is redundant. The
intent of subsection 11(6) is achieved with regard to approved schemes by
the abovementioned insertion of a new section 10.
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Primary Industries and Other Acts Amendment Bill 2008
Insertion of new s 11A
Clause 10 inserts a new section 11A regarding authorised interstate
schemes, describing the criteria that the Minister will have regard to, in
considering the relevant authorisation. Unless the Minister has authorised
QRAA to enter into arrangements to administer such a scheme, QRAA
must not tender in relation to it, or agree to administer it. The Minister may
give authorisation of such administration only if satisfied that the scheme's
main purpose is to foster the development of the other State's rural or
regional sector, or to give assistance to primary producers or small
businesses in the other State that are experiencing temporary difficulty. The
authorisation may be subject to conditions, which may relate to ensuring
that QRAA's performance of its functions in Queensland is not affected.
Schemes that are authorised by the Minister are an `authorised interstate
scheme'. QRAA must comply with the Minister's requests to provide the
Minister with information relating to a tender or arrangements that have
been made (or are proposed to be made) in relation to the administration of
an authorised interstate scheme. However, subsection (5) is limited by
subsection (6) to the extent that such a request may not contravene a
confidentiality agreement to which the authority may be a party, in order to
ensure commercial confidence can be maintained in QRAA's dealings with
other jurisdictions.
Amendment of s 12 (Administering approved assistance
schemes)
Clause 11 amends section 12 so that it encompasses authorised interstate
schemes as well as approved assistance schemes.
Amendment of s 13 (Funding of approved assistance schemes)
Clause 12 amends section 13 so that it relates to authorised interstate
schemes as well as approved assistance schemes.
Amendment of s 13A (Who may apply for internal review)
Clause 13 amends section 13A so that it incorporates authorised interstate
schemes as well as approved assistance schemes.
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Primary Industries and Other Acts Amendment Bill 2008
Insertion of new s 16D
Clause 14 inserts a new section, empowering a director of QRAA's board
mentioned in paragraphs 16(1)(a) or (b) to be able to delegate the director's
functions under the RRA Act (including powers) to an appropriately
qualified senior executive in the public service. A definition of
`appropriately qualified' is provided to aid the provision's clarity.
Amendment of s 20 (Conduct of proceedings)
Clause 15 omits the word `appointed' from paragraph 20(3)(a) to remove
the ambiguity previously caused regarding government directors who were
technically not appointed. This amendment allows for government
directors to be counted for the purposes of achieving a quorum.
Amendment of s 44 (Regulations)
Clause 16 amends the heading of section 44 to bring the section heading
into line with current drafting practice.
Part 3 Amendment of Sugar Industry
Act 1999
Act amended in pt 3
Clause 17 provides that Part 3 amends the Sugar Industry Act 1999 (Sugar
Industry Act).
Amendment of s 63 (Access right to harvest and supply cane)
Clause 18 replaces the commissioner with the Land Court in subsection
63(1), so as to provide that access rights are granted by the Land Court, not
the commissioner, when the consent of the land-holder is not obtained.
A new subsection 63(4) provides that it is mandatory that a time frame be
specified for a permit to pass, so as to give the other parties more certainty
as to the validity of the permit when it is noted on a title. To accommodate
the new subsection 63(4), the existing subsections 63(4) to 63(6) are
renumbered as subsections 63(5) to (7).
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Primary Industries and Other Acts Amendment Bill 2008
Amendment of s 64 (Land-holder may grant an access right)
Clause 19 inserts a note at the foot of section 64 regarding grants of access
rights when the consent of the land-holder is obtained, to refer the reader to
sections 70 and 71 regarding the requirements to notify the person who is
the registrar under the Land Act 1994 or the Land Title Act 1994 of the
access right.
Replacement of s 65 (Commissioner may grant an access right)
Clause 20 inserts a new section 65, which sets out when the Land Court
may grant an access right on an application. Further, it specifies the
requirements regarding the applicant's service of copies of the application.
The new section 65 provides that the Land Court may grant an application
for an access right and impose reasonable conditions on the grant.
Subsection (5) provides that in order to make such a grant the Land Court
must be satisfied: that the applicant has failed, after reasonable attempts, to
negotiate an agreement with the land-holder for the access right; that the
access right is necessary for a purpose mentioned in subsections 63(2) or
(5) regarding the applicant; and that the access right will not affect native
title or, if it will, there is an indigenous land use agreement that consents to
the access right. A note at the foot of subsection 65(5) refers the reader to
sections 70 and 71 regarding the requirements to notify the person who is
the registrar under the Land Act 1994 or the Land Title Act 1994 of the
access right.
Omission of s 66 (Notice of decision)
Clause 21 removes section 66, which required the commissioner to provide
an information notice to the applicant and any person who may be entitled
to claim compensation. Instead, under the new amendments the Land
Court's judicial processes will apply, rendering the previous section 66
redundant.
Omission of s 67 (Grant of access right takes effect on
registration)
Clause 22 removes section 67, which provided that a grant of access rights
took effect when the commissioner was notified of the right and recorded it
in the sugar access register. This provision is redundant under the new
amendments. Access rights are created by agreement or Land Court order.
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Primary Industries and Other Acts Amendment Bill 2008
New sections 70 and 71 set out the requirements for notice, recording and
registration of details of a new access right under the Land Act 1994 and
the Land Title Act 1994.
Amendment of s 68 (Compensation on grant of access right)
Clause 23 replaces the commissioner with the Land Court in subsections
68(1) and (6), so as to provide that when the grantee and land-holder
cannot reach an agreement regarding the amount of the compensation
payable to the land-holder regarding the grant of an access right, the Land
Court decides the amount.
Clause 23 simplifies subsection 68(1) by introducing a new term `grantee'
to describe the `mill owner or grower to whom the access right is granted'.
This definition is inserted into the Dictionary in clause 38.
The new subsections 68(2) to (5) provide that when the grantee and
land-holder cannot reach an agreement regarding the amount of the
compensation payable to the land-holder, either the grantee or land-holder
can apply to the Land Court for an order for payment. Subsections 68(4)
and 68(5) detail matters that the Land Court must have regard to when
deciding the amount of compensation.
Replacement of ss 69-71
Clause 24 removes the previous sections 69 to 71, which set out matters
relating to the commissioner's access rights register, and inserts new
sections 70 and 71.
The new section 70 relates to a `permit event'--namely, when a permit to
pass is granted or relinquished, and when a permit to pass or a condition on
which the permit is held is varied or cancelled under section 72. The
grantee must, within 28 days, give notice of the permit event to the registrar
under the Land Act 1994 or the Land Title Act 1994 in the form required
and provide a copy of the relevant document. A penalty applies for failure
to give such notice. The registrar must ensure that a notice regarding the
permit event appears in the register kept under the Land Act 1994 or the
Land Title Act 1994 in such a way that a search will show that permit event.
The new section 71 relates to an `easement event'--namely, when a cane
railway easement is granted or relinquished, and when a cane railway
easement or a condition on which the easement is held is varied or
cancelled under section 72. The grantee must, within 28 days, give notice
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Primary Industries and Other Acts Amendment Bill 2008
of the easement event to the registrar under the Land Act 1994 or the Land
Title Act 1994. It is considered sufficient for the grantee to provide to the
registrar the documents required to register the easement event. A penalty
applies for failure to give such notice. The registrar must ensure that a
notice regarding the easement event appears in the register kept under the
Land Act 1994 or the Land Title Act 1994 in such a way that a search will
show that easement event. The registrar may register the easement event
under the Land Act 1994 or the Land Title Act 1994 in accordance with the
requirements of those Acts.
Amendment of s 72 (Variation and cancellation of access right,
dispute resolution and enforcement)
Clause 25 replaces the words `the holder' in subsection 72(1) with `the
grantee' to achieve consistent terminology. Further, clause 25 removes the
previous subsections 72(2) to (10), which relate to applications to the
commissioner to vary or cancel access rights, and inserts new subsections
72(2) to (6).
The new subsection 72(2) provides that a party to an access right may
apply to the Land Court to vary or cancel an access right or a condition on
which the access right is held. A `party' is defined in clause 38 to be `a
land-holder or a grantee'.
The new subsection 72(3) specifies requirements regarding the applicant's
service of copies of the application.
The new subsections 72(4) and (5) provide that the Land Court may grant a
party's application to vary or cancel a cane railway easement if satisfied
that it has not been used for at least 2 years, and may otherwise grant an
application to vary or cancel an access right if satisfied that there are
special circumstances. Subsection 72(5) provides that a change in use of
the land affected by the access right is not considered to be special
circumstances under subsection 72(4)(b).
A new subsection 72(6) provides that a cane railway easement may be
varied only in compliance with the provisions regarding amendment of
easements in the Land Act 1994 or the Land Title Act 1994.
Replacement of ss 73 and 74
Clause 26 removes the previous sections 73 and 74, and inserts new
sections 73, 74 and 74A.
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Primary Industries and Other Acts Amendment Bill 2008
The new section 73 provides that when the parties to an access right have
by agreement, varied or cancelled an access right or a condition on which it
is held but can not reach an agreement regarding the amount of the
compensation payable, either party may apply to the Land Court for an
order for the payment of compensation. The Land Court may make an
order regarding the amount of compensation payable on application of the
party under this section. Additionally, the Land Court may make an order
regarding the amount of compensation payable in circumstances where the
Land Court has made an order under section 72. Matters that the Land
Court must have regard to when deciding the amount of compensation are
set out under subsections 73(4) & (5).
The new section 74 provides that when the Land Court cancels an access
right, or varies an access right in a way that excludes land affected by the
right, the Land Court may order the grantee or former grantee to carry out
rectification or reinstatement of the land as directed.
The new section 74A provides that if the Land Court makes an order under
Part 4 of Chapter 3, the registrar of the Land Court must give a copy of the
order to the registrar of the Supreme Court, who must then file it. The order
is then enforceable as if it were an order of the Supreme Court.
Amendment of s 75 (Construction etc. of railways, obstruction
of access right)
Clause 27 replaces the previous subsection 75(1)(a) with a more concise
provision and specifies, in a new subsection 75(2), constraints imposed by
the Local Government Act 1993 and the Transport Infrastructure Act 1994
that apply to paragraph 75(1)(a).
The previous subsection 75(2), which provides that it is an offence to
obstruct the use of an access right or a right under subsection 75(1), has not
been replaced, as it is not necessary for such obstruction to be an offence in
order for the Land Court to effectively deal with the obstruction (by making
orders that restrain the obstruction).
So that the Land Court, rather than the Magistrates Court, is the court that
considers applications regarding the obstruction of an access right or a right
under subsection 75(1), subsection 75(3) is amended and subsection 75(4)
is deleted. Subsections 75(5) and 75(6) are renumbered subsections 75(4)
and (5) to accommodate the deletion of subsection 75(4).
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Primary Industries and Other Acts Amendment Bill 2008
Renumbering and relocation of s 108 (Minister may establish
advisory bodies)
Clause 28 renumbers and relocates section 108 in Chapter 4 as section 246
in Chapter 7.
Omission of chs 4 and 5
Clause 29 removes Chapters 4 and 5 except for relocation of the previous
section 108, which is renumbered as section 246 (see clause 28). Chapter 4
sets out the Minister's powers with regard to the commissioner and general
provisions regarding the commissioner, while Chapter 5 sets out the
appeals process regarding decisions made by the commissioner. The
removal of Chapters 4 and 5 are to achieve the dissolution of the office of
the sugar industry commissioner.
Amendment of s 245 (Pooled export and domestic contract)
Clause 30 removes subsection 245(3), which relates to a spent provision
under subsection 244(3) which expired on 30 September 2007.
Amendment of s 249 (Statutory declaration)
Clause 31 amends section 249 so that it does not apply to the
commissioner, as applications and submissions will no longer be made to
the commissioner. Section 249 will continue to apply to 'an entity
established under this Act'. Currently, there are no entities established
under the Sugar Industry Act to which applications or submissions may be
made. However, the new section 246 (previously section 108 - see clause
28) provides that the Minister may establish an advisory committee or
other body to help the Minister in the administration of the Sugar Industry
Act. Should the Minister establish any such entity in the future, section 249
will enable that entity to require verification of particular information by
statutory declaration.
Amendment of s 253 (Improper use of information prohibited)
Clause 32 amends subsection 253(1) to recognise that the commissioner
goes out of office on the day that the transitional provisions in the new
Chapter 9 commence. Section 253 provides that persons who have been the
commissioner or members, directors, officers or employees of an entity
established under the Sugar Industry Act must not make improper use of
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Primary Industries and Other Acts Amendment Bill 2008
information. Further, section 253 will continue to provide that persons who
are members, directors, officers or employees of an entity which may be
established under the new section 246 (previously section 108 - see clause
28) of the Sugar Industry Act must not make improper use of information.
Omission of ch 8, pts 1-6
Clause 33 removes Parts 1 to 6 of Chapter 8, which set out transitional
provisions that were inserted into the Sugar Industry Act at the time of the
2005 sugar industry reforms by the Sugar Industry Amendment Act 2005.
Amendment of s 281 (Definition for pt 7)
Clause 34 inserts the definition of the commencement date previously
contained in repealed section 258, into Part 7 of Chapter 8.
Insertion of new s 283A
Clause 35 inserts a new section 283A into Part 7 of Chapter 8, which
provides that Part 7 expires on either the day that section 243 expires or the
day that section 245 expires, whichever is the later.
Omission of ch 8, pt 8
Clause 36 removes Part 8 of Chapter 8, which sets out transitional
provisions that were inserted into the Sugar Industry Act at the time of the
2005 sugar industry reforms by the Sugar Industry Amendment Act 2005.
Replacement of ch 9
Clause 37 removes Chapter 9, which set out transitional provisions that
were inserted at the time of the 2007 sugar industry reforms by the Primary
Industries Acts Amendment and Repeal Act 2007. Further, clause 37
inserts a new Chapter 9, consisting of the new sections 284 to 297, which
sets out transitional provisions for the purposes of these amendments of the
Sugar Industry Act.
The new section 284 is a transitional provision that sets out definitions of
`access rights register', `commencement day' and `commissioner' for the
purposes of Chapter 9.
The new section 285 is a transitional provision that provides that a permit
to pass in force immediately before the commencement day will remain in
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Primary Industries and Other Acts Amendment Bill 2008
force, regardless of the requirement in the new section 63(4) that a permit
to pass must specify a timeframe. This requirement does not apply to
current permits to pass and they are taken to have effect until cancelled or
otherwise ceasing under the Sugar Industry Act.
The new section 286 is a transitional provision that provides that an access
right in force immediately before the commencement day remains in force
according to its terms as if it had been granted by the Land Court.
The new section 287 is a transitional provision that provides that an
application to the commissioner under the previous sections 65 or 72, or an
application to a Magistrates Court under the previous section 75, that has
not been decided or finally dealt with immediately before the
commencement day, is taken to be an application to the Land Court. The
president of the Land Court may direct that the application and associated
material held by the commissioner or the Magistrates Court are part of
proceedings before the Land Court, and give any necessary directions as to
how such proceedings are to be dealt with. The chief executive and
registrar of the Magistrates Court must take all reasonable steps to make
applications and material associated with them available to the Land Court.
The new section 288 is a transitional provision that provides that where a
valuer was appointed under either the previous section 68 or the previous
section 73 and the valuer has not decided an amount immediately before
the commencement day, those sections continue to apply.
The new section 289 is a transitional provision that provides that on the
commencement day, the commissioner's access rights register becomes the
property of the registrar under the Land Act 1994 or the Land Title Act
1994. The registrar must ensure that, for each current access right recorded
in the access rights register immediately before the commencement day, a
notice appears in the relevant register kept under the Land Act 1994 or the
Land Title Act 1994, so that a search of the register will show the existence
of the right.
The new section 290 is a transitional provision that provides that an order
made by the commissioner under section 74 that was in force immediately
before the commencement day continues in force as if it had been made by
the Land Court.
The new section 291 is a transitional provision that provides that the
commissioner goes out of office on the commencement day, and no
compensation is payable to the commissioner.
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Primary Industries and Other Acts Amendment Bill 2008
The new section 292 is a transitional provision that provides that the State
replaces the commissioner in agreements or arrangements between the
commissioner and other entities in force immediately before the
commencement day. Further, the State replaces the commissioner in
proceedings that could have been started or continued by or against the
commissioner before the commencement day.
The new section 293 is a transitional provision that provides that the State
assumes the assets or liabilities of the commissioner, in the commissioner's
capacity as the commissioner, immediately before the commencement day.
The new section 294 is a transitional provision that provides that the
employment of a person employed by the commissioner immediately
before the commencement day is taken to be lawfully terminated under the
Industrial Relations Act 1999. The person may exercise the rights of an
employee whose employment has been lawfully terminated against the
State, as if the State was the employer who lawfully terminated the
person's employment.
The new section 295 is a transitional provision that provides that a
document to which the previous section 271 applied immediately before
the commencement day continues to be exempt matter under the Freedom
of Information Act 1992.
The new section 296 is a transitional provision that provides that, where a
person has a right of appeal under the previous section 234 regarding a
decision of the commissioner, the appeal may be started or continued, on or
after the commencement day, and for this purpose the chief executive is the
respondent, and the prior section 234 continues to apply. Relevantly for the
operation of the new section 296, the previous subsection 234(3) provides
that an appeal must be commenced within 28 days after the appellant is
given notice of the decision.
The new section 297 is a transitional provision that provides that, where a
person has a right of appeal under the previous section 235 regarding a
decision of the commissioner, the appeal may be started or continued, on or
after the commencement day, and for this purpose the chief executive is the
respondent, and the previous section 235 continues to apply. Relevantly for
the operation of the new section 297, the previous subsection 235(2)
provides that an appeal must be commenced within 28 days after the
appellant is given notice of the decision.
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Primary Industries and Other Acts Amendment Bill 2008
Amendment of schedule (Dictionary)
Clause 38 removes definitions that are no longer necessary as a result of the
amendments to the Sugar Industry Act. Further, clause 38 inserts the
definitions of `grantee', `party' and `registrar'. Accordingly, the definition
of `cane railway easement' is amended to refer to the appropriately
renumbered section 63(5).
Part 4 Amendment of Land Act 1994
Act amended in pt 4
Clause 39 provides that Part 4 amends the Land Act 1994.
Amendment of s 369 (Public utility easements)
Clause 40 inserts an additional paragraph in subsection 369(2) of the Land
Act 1994, which provides that public utility easements may be registered by
the registrar of titles for various types of infrastructure and purposes. The
additional paragraph provides that the registrar of titles may register a cane
railway easement in favour of a mill owner for a purpose for which a cane
railway easement may be granted under the Sugar Industry Act.
Amendment of sch 6 (Dictionary)
Clause 41 inserts and adds to definitions in the Dictionary in Schedule 6 of
the Land Act 1994. The definitions of `cane railway easement' and `mill
owner' are inserted, and require the reader to refer to the Sugar Industry
Act. Further, the definition of `public utility provider' is expanded, to
provide that a mill owner is a `public utility provider', but only for the
registration of a cane railway easement.
Part 5 Amendment of Land Title Act
1994
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Primary Industries and Other Acts Amendment Bill 2008
Act amended in pt 5
Clause 42 provides that Part 5 amends the Land Title Act 1994.
Amendment of s 81A (Definitions for div 4)
Clause 43 inserts and adds to definitions in section 81A of the Land Title
Act 1994. The definitions of `cane railway easement' and `mill owner' are
inserted, and require the reader to refer to the Sugar Industry Act. Further,
the definition of `public utility provider' is expanded, to provide that a mill
owner is a `public utility provider', but only for the registration of a cane
railway easement.
Amendment of s 89 (Easements for public utility providers)
Clause 44 inserts an additional subparagraph in section 89(2)(a) of the
Land Title Act 1994, which provides that public utility easements may be
registered by the registrar of titles for various types of infrastructure and
purposes. The additional subparagraph provides that the registrar of titles
may register a cane railway easement in favour of a mill owner for a
purpose for which a cane railway easement may be granted under the Sugar
Industry Act.
ŠThe State of Queensland 2008
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