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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 108
As laid on the table and read a first time, 30 June 2004
South Australia
A Bill For
An Act relating to the exporting of barley; to repeal the Barley
Marketing Act 1993; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Application of this Act
Part 2—Controls over exporting
barley
Division 1—Controlled activities
5 Obligation of barley exporters to be
licensed
Division 2—Export controls
Subdivision 1—Classes of licences
6 Classes of licences
Subdivision 2—Main export licence
7 Grant of main export licence
8 Term of main export licence
9 Conditions of main export licence
10 Property in barley passes to main
exporter on delivery
11 Declaration of season
Subdivision 3—Special export licence
12 Grant of special export licence
13 Term of special export licence
14 Conditions of special export licence
15 Matters to be specified in special
export licence
16 Publication of information about
special export licences
Subdivision 4—General
licensing provisions
17 Licences not transferable
18 Applications for licences
19 Appeals
Part 3—Miscellaneous
20 Licensing authority must take advice
into account
21 Annual report
22 Regulations
Schedule 1—Repeal of Barley
Marketing Act 1993
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Barley Exporting Act 2004.
(1) This
Act will come into operation on a day to be fixed by proclamation.
(2) Section
7(5) of the Acts Interpretation Act 1915 does not apply to this Act
or any provision of this Act.
In this Act, unless the contrary intention
appears—
ABB Grain Export Ltd means ABB Grain Export Ltd (ACN 084 962 112);
barley means the grain derived from the barley
plant in unprocessed form but does not include grain excluded from the ambit of
this definition by the regulations;
barley plant means the cereal plant of the genus Hordeum;
export of barley means export to which this Act
applies—see section 4;
licence means a main export licence or a special
export licence issued under Part 2;
licensing authority means—
(a) a body established by the regulations as the licensing
authority; or
(b) some other body to which the functions of the licensing
authority under this Act are assigned by the regulations;
main exporter means the holder of a main export
licence;
main export licence means a main export licence issued under
Part 2;
season means a period of 12 months commencing on
1 October;
special export licence means a special export licence issued
under Part 2.
(1) This
Act applies to the export of barley from a South Australian port to a
destination outside Australia.
(2) This
Act does not apply to the export of barley that is packed in a bag or container
capable of holding not more than 50 tonnes of barley.
Part 2—Controls over exporting barley
Division 1—Controlled activities
5—Obligation of barley exporters to be licensed
A person must not export barley except as
authorised by a licence issued under this Part.
Maximum penalty:
(a) for a first offence—$500 000;
(b) for a subsequent offence—$1 000 000.
Subdivision 1—Classes of licences
The following classes of licence may be
granted for the purposes of this Act:
(a) main export licence;
(b) special export licence.
Subdivision 2—Main export licence
7—Grant of main export licence
(1) The
licensing authority may grant a main export licence authorising the holder of
the licence to export barley.
(2) The
first grant of a main export licence is to be made to ABB Grain Export Ltd with
effect from the commencement of this section.
(3) Any
later grant of a main export licence may be made to an applicant for the
licence.
(4) There
may not be more than one main export licence in force at any time.
A main export licence will terminate 5 years after coming into
effect unless earlier surrendered to the licensing authority or cancelled by
the licensing authority after consultation with the Minister.
9—Conditions of main export licence
(1) The
licensing authority may grant a main export licence subject to any conditions
that the licensing authority thinks appropriate.
(2) Without limiting the conditions that may be
imposed under subsection (1), the conditions may include the following:
(a) a condition that the main exporter will establish pools in
relation to barley of a season delivered to it for export;
(b) a condition that the main exporter will export or otherwise
dispose of, to the best advantage, all barley delivered to it under this Act.
(3) The
licensing authority may, at the request of the licence holder or of its own
motion, by notice in writing to the main exporter, vary or revoke a condition
of the licence or impose a new condition.
10—Property in barley passes to main exporter on delivery
(1) The main exporter must accept delivery of
barley if the barley—
(a) meets standards determined by the main exporter; and
(b) is delivered to the main exporter in accordance with
conditions determined by the main exporter.
(2) On
delivery of barley to the main exporter, the property in the barley immediately
passes to the main exporter unless otherwise agreed.
(3) The
barley is, while in the hands of the main exporter, free from any encumbrance
or other interest in favour of the person who delivers the barley to the main
exporter or any other person.
(1) A
person who, after the declared day in relation to a season, delivers to the
main exporter barley harvested before that day, must
make and forward to the main exporter a declaration stating the season during
which that barley was harvested.
(2) For the purposes of this section—
declared day means, in respect of a season, the day which is declared
by the main exporter by notice published in the Gazette and on the main
exporter's website to be the final day for delivery of barley of that season.
Subdivision 3—Special export licence
12—Grant of special export licence
(1) Subject
to this section, the licensing authority may grant a special export licence
authorising the holder of the licence to export barley specified in the licence
to a market specified in the licence.
(2) The licensing authority may not grant a
special export licence to an applicant without first—
(a) inquiring
as to whether the main exporter exports barley to the market for which the
special export licence is sought; and
(b) if
the main exporter does export barley to that market—deciding whether the price
at which the main exporter so exports the barley incorporates a premium
resulting from the exercise by it of its market power as the main exporter.
(3) If the licensing authority reaches the
opinion that the price set by the main exporter incorporates such a premium,
the licensing authority—
(a) must consult the main exporter before granting the special
export licence; and
(b) must not grant the special export licence if to do so would
be likely to affect the premium to an extent that the licensing authority
considers to be significant.
13—Term of special export licence
(1) The
licensing authority may grant a special export licence for any term that the
licensing authority thinks appropriate.
(2) The licensing authority may, by notice in
writing to the holder of a special export licence—
(a) cancel the licence; or
(b) reduce or extend the term of the licence.
(3) A
special export licence has effect during the term of the licence unless the
licence is cancelled.
14—Conditions of special export licence
(1) The
licensing authority may grant a special export licence subject to any conditions
that the licensing authority thinks appropriate.
(2) Without limiting the conditions that may be
imposed under subsection (1), the conditions may include the following:
(a) a condition as to the quality of the barley that may be
bought or exported under the licence;
(b) a condition as to the season of production of the barley
that may be bought or exported under the licence;
(c) a condition as to how barley bought or exported under the
licence may be described;
(d) a condition that the holder of the licence provide the
licensing authority with a report containing such information as the licensing
authority requires on the activities carried out under the licence.
(3) The
licensing authority may, at the request of the holder of the licence or of its
own motion, by notice in writing to the holder of a special export licence,
vary or revoke a condition of the licence or impose a new condition.
15—Matters to be specified in special export licence
A special export licence must specify the
following matters:
(a) the term of the licence;
(b) the quantity of barley to which the licence applies;
(c) the market to which the licence applies;
(d) any conditions to which the licence is subject.
16—Publication of information about special export licences
The licensing authority must, at the end
of each season, on the licensing authority's website publish the following
information:
(a) the number of applications made for special export licences
in the previous season;
(b) the total amount of barley produced in the season for which
a special export licence was sought;
(c) the total amount of barley produced in the season for which
a special export licence was granted;
(d) any other prescribed information.
Subdivision 4—General licensing provisions
A licence under this Part is not transferable.
(1) An application for a licence under this
Part must—
(a) be made to the licensing authority in the manner and form
approved by the licensing authority; and
(b) be accompanied by the fee fixed by regulation.
(2) An
applicant for a licence must provide the licensing authority with such evidence
in support of the application as the licensing authority may require.
(1) A
person aggrieved by a licensing decision may appeal to the Administrative and
Disciplinary Division of the District Court against a licensing decision of the
licensing authority.
(2) Subject
to subsection (4), an appeal must be commenced within one month of the
making of the licensing decision appealed against.
(3) The
licensing authority must, if so required by the applicant, state in writing the
reasons for the licensing authority's licensing decision.
(4) If
the reasons of the licensing authority are not given in writing at the time of
making the licensing decision and the appellant (within one month of the making
of the decision) requires the licensing authority to state the reasons in
writing, the time for commencing an appeal runs from the time at which the
appellant receives the written statement of those reasons.
(5) In this section—
licensing decision means a decision of the licensing
authority—
(a) to refuse to grant a licence; or
(b) to cancel a licence; or
(c) to vary, or impose, a condition on a licence.
20—Licensing authority must take advice into account
(1) The
Minister may establish an advisory committee to advise the Minister on the
operation of, and any matter arising under, this Act.
(2) The
licensing authority must, when exercising its functions under this Act, take
into account any advice given by the advisory committee and referred to the
licensing authority by the Minister.
The main exporter must give to the licensing authority a copy of
its annual report under the Corporations Act 2001 of the Commonwealth
together with such information about the operations of the main exporter as the
licensing authority requires.
The Governor may make such regulations as are contemplated by, or
as are necessary or expedient for the purposes of, this Act.