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1998-99
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AGRICULTURE, FISHERIES AND
FORESTRY LEGISLATION AMENDMENT BILL (NO 2)
1999
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister
for Agriculture, Fisheries and Forestry,
the Hon Mark Vaile, MP)
ISBN: 0642 406065
AGRICULTURE, FISHERIES AND FORESTRY LEGISLATION
AMENDMENT BILL (NO 2) 1999
The Bill amends the Plant Breeders Rights Act 1994 (PBR Act)
by: providing relief to applicants affected by a reduction of the allowable
period for ‘prior sale’ during the transition from the Plant
Variety Rights Act 1987 to the current Act; improving the efficiency of the
Plant Breeders Rights (PBR) office by removing the requirement to maintain
multiple copies of the Register; attributing costs associated with a request for
a test growing; improving public access to information; clarifying the payment
of prescribed fees and correcting transcription errors.
The amendments
are of a minor technical nature and are aimed at improving the efficient
operation of the PBR scheme.
When the PBR Act was introduced it replaced
the previous Plant Variety Rights Act 1987 and in doing so, reduced the
allowable period of prior sale for most new plant varieties from 6 years to 4
years. A number of applicants found that the change meant their eligibility to
apply for rights had expired up to two years earlier. The proposed transitional
arrangement will allow affected applicants the opportunity to have their
applications reinstated.
Currently a person who objects to an application
must bear the cost of any test growing. The proposed amendment requires the
unsuccessful party in the opposition to bear the costs of the test growing and
is in line with the normal practice of the court in awarding costs. It is
anticipated that this change will remove the ‘up-front’ financial
barrier which may inhibit genuine objections whilst at the same time maintaining
the disincentive for frivolous and vexatious claims.
These amendments
will also ensure that costs to the Commonwealth associated with any test growing
conducted on behalf of another country can be recovered in full. Australia is
one of approximately 43 countries who are members of the International Union for
the Protection of New Varieties of Plants (UPOV). There is a spirit of
cooperation amongst these countries and test growings are commonly conducted on
behalf of another where facilities or expertise do not exist in the requesting
country. This amendment will ensure the costs associated with conducting these
test growings are recovered even if no application is lodged for the variety in
Australia.
Currently the Registrar is required to maintain a copy of the
Register in each state capital. These Registers are seldom if ever used so it is
proposed that a single hard copy of the Register be maintained by the PBR Office
and an electronic version be included on the Internet. This will provide a
better service at lower cost. Copies of individual entries on the Register can
still be obtained on request.
Amendments are also suggested to clarify
the time, manner and circumstances in which fees, imposed under the PBR Act, are
paid to the Commonwealth may be specified in the regulations. In addition, it is
specified that the prescribed fee must be paid before an application for
objection or revocation is accepted.
The amendments also include an
extension of time for the notification of assignments from 7 days to 30 days and
corrects a number of transcription errors.
The Primary Industries Levies and Charges Collection Act 1991
contains measures which allow for cost effective and efficient levy and export
charge collection. It provides a single Act to deal with levy and export charge
collection. It allows for uniformity of collection methods and permits a
consistency of approach to procedural matters.
The levies and charges
collection system operates on a self-assessment basis. For better securing the
payment and to reduce the collection costs to industry, levies and charges are
for the most part collected by intermediaries such as first purchasers, buying
agents, selling agents, exporters, exporting agents and importers and importing
agents.
The effect of the amendments will be to update and enhance the
levy and export charge collection techniques. Many of the amendments clarify and
update customs used in rural industries; such as the use of settlement agents
and solicitors in arranging property sales incorporating the sale of
live-stock.
Other amendments sought relate to the association between
producers and intermediaries. In many horticultural industries, there are
growers who operate stands at licensed wholesale produce markets but shun
lodgement of payments and returns (other than annually, as is the case for most
producer retail (farm gate) sales). They deal with not only their own produce
but also that of other producers. This gives them an unfair advantage over their
counterparts, who act for producers generally, and must lodge returns and make
payments on a monthly or quarterly basis. Changes are being made so that all
will operate on an even playing field.
The powers for authorised persons
are being upgraded to bring them into line with those used by inspectors under
the Export Control Act 1982. This is consistent with administrative
arrangements made within the portfolio after the 1998 general election.
Schedule 3 of the Bill provides for technical corrections to the
following Acts:
Australian Horticultural Corporation Act
1987;
Farm Household Support Act 1992; and
Primary
Industries and Energy Legislation Amendment Act (No 1) 1996.
To amend the Natural Resources Management (Financial Assistance) Act
1992 for the purpose of replacing the name National Landcare Advisory
Committee with a new name, the Australian Landcare Council.
The National
Landcare Advisory Committee was established under the Natural Resources
Management (Financial Assistance) Act 1992, to advise the Minister for
Agriculture, Fisheries and Forestry (then the Minister for Primary Industries
and Energy) and the Minister for the Environment and Heritage (then the Minister
for the Arts, Sport, the Environment and Territories) on natural resource
management issues.
In July 1997 the then Minister for Primary Industries
and Energy, the Hon John Anderson MP announced that the National Landcare
Advisory Committee was to be called the Australian Landcare Council.
The
structure and the functions of the body remain unchanged.
The Schedule in the Primary Industry Councils Act 1991 which
provides for the establishment of a Grains Industry Council is to be repealed.
The need for a forum to advise the Government on the strategic direction of the
grains industry is no longer relevant following privatisation of the Australian
Wheat Board and on
going reforms to State grain marketing
arrangements.
The Bill amends the Rural Adjustment Act 1992 by changing the name
of the Rural Adjustment Scheme Advisory Council (RASAC) to the National Rural
Advisory Council, and changing the role and functions of the Council.
The
amendments are relatively minor, aimed at redefining the roles and functions of
the advisory council in the light of the wind-down of the Rural Adjustment
Scheme (RAS).
Previously, the major role for the advisory council was
advising the Minister on direction and funding for RAS. Currently, its primary
role is to advise the Minister on exceptional circumstances applications and
adjustment issues generally.
As RAS no longer provides new funding, the
amendments more appropriately define the functions for the advisory council to
undertake. The redefined roles and functions include advising the Minister on
rural adjustment and regional issues generally, as well as exceptional
circumstances applications.
The amendments to the Australian Wine and Brandy Corporation Act
1980 are to sections dealing with inspection powers and record keeping and
clarify the definitions for wine and the origin of wine.
No new
requirements have been added rather the existing requirements in relation to
label law have been made clearer.
Also the amendments rectify the
anomalous situation where the Australian Wine and Brandy Corporation was
required to prove whether a wine was a single wine or a blend in order to
successfully prosecute.
The amendments also provide for a more consistent
Act with the removal of a few cross-referencing errors.
As the intention of the amendments to the Plant Breeder’s Rights
Act 1994 is to facilitate the operation of the Plant Breeders Rights scheme
there are no foreseeable financial implications for the Commonwealth, other than
savings involved when improvements are made to operations.
As the
intention of the amendments to the Primary Industries Levies and Charges
Collection Act 1991 is to update and enhance the levy and export charge
collection techniques there are no immediate financial implications for the
Commonwealth, other than savings involved when improvements are made. As the
incidence of collection of levy and charge improves, there will be a small
increase in the amount required for the Commonwealth’s matching
contribution to research and development.
There are no financial
implications for the Commonwealth from the amendments to the Rural Adjustment
Act 1992. The current Rural Adjustment Scheme Advisory Council (RASAC) is
funded through Departmental running costs, and the new National Rural Advisory
Council can be accommodated within Budget arrangements.
The Australian Wine and Brandy Corporation (AWBC) commenced operations on
1 July 1981, succeeding the Australian Wine Board which had operated since 1929.
The chief functions of the Corporation were initially to promote and control the
export of grape products from Australia; and to promote and control the sale and
distribution, after export, of Australian grape products. As a consequence of
Australia’s Wine Agreement with the EU (signed in 1994), these functions
have been expanded to include a compliance regime for exports to the EU and the
determination of conditions for the registration and use of wine expressions
such as geographical indications and traditional expressions.
The AWBC
has the responsibility to enforce the Label Integrity Program under Part VIA of
the Australian Wine and Brandy Corporation Act 1980 (the Act). The Label
Integrity Program was introduced in 1989 amendments to the Act to enforce truth
in labelling in relation to claims made on wine labels. Such claims would
include date of manufacture, vintage, variety and region of origin. Wine
manufacturers are required to keep records on wine including: date of receipt,
quantity, supplier, vintage, variety and region of origin, and composition of
blended wines. Other information required to be kept includes records of wine
disposals, transfers and sales. Since 1994 LIP has also ensured compliance with
treaty obligations under the EU/Australia Wine Agreement (date of effect - 1
March 1994).
In 1993 amendments to the Act were introduced to reflect new
obligations to be entered into under the EU/Australia Wine Agreement. Firstly,
existing Australian wine blending requirements under the Food Standards Code
were updated and transferred to the Regulations under the Australian Wine and
Brandy Corporation (AWBC) Act. This had little effect on wine manufacturers,
amending allowable blending percentages slightly (which in some cases resulted
in more flexible rules than the original blending rules). This was done to give
the AWBC control of matters for which it is seen in the treaty as being
responsible (“the competent body”).
Secondly, the
EU/Australia Wine Agreement provided for mutual protection of the Contracting
Parties’ wine names including geographical indications and traditional
expressions. The Act included protection against false or misleading claims as
to a country or region of origin of wine and included phase-out provisions on
the use of certain EU names which historically had been commonly used in
Australia.
The Wine Agreement with the EU allows wine shipments to be
cleared in Australia by the Australian Wine and Brandy Corporation which ensures
all export labels are in accordance with EU requirements. Further, the required
analytical testing is able to be performed in Australia by accredited
laboratories. This saves considerable time and ensures that in most cases
exports reach their destinations promptly. In non-EU countries, exporters may
have to commit considerable resources to ensuring wine labels meet the
requirements of national regulatory bodies. The USA market is an example of
this. Major wine exporters have offices in the USA to liaise with the Bureau of
Alcohol, Tobacco and Firearms to gain permission for each and every wine
label.
In most cases, Australian wine is subject to the same rules in the
EU as wine which originates in the EU. Both parties have agreed to accept each
other’s differing wine manufacturing practices but also adhere to the
labelling laws of the importing Party. Thus the Agreement allows for Australian
wines made by certain winemaking practices which are not common in the EU to be
exported to the EU and a similar standard is adopted for EU wines imported into
Australia.
The Australian Wine Industry is regulated sufficiently to
ensure the health and safety of consumers and to prevent false and misleading
labelling. There is no desire by industry to introduce regulations which go
beyond these parameters. Nevertheless, industry has a well defined strategic
plan to increase Australia’s share of the world wine market from just over
2% to 6.5% by 2025 and accepts that to gain market access there are some
obligations that need to be undertaken. Exports have become increasingly
important to the industry comprising over 35% of total Australian
production.
Due to several anomalies in the legislation the Corporation is finding it
extremely difficult to enforce compliance of the Act. The proposed amendments do
not impose any new compliance measures but seek to clarify provisions which have
made the enforcement of the AWBC Act difficult and thus also jeopardise
Australia’s ability to meet its international obligations.
The
proposed amendments relate to the definition of inspection powers under Section
39C; requirements to make and keep an audit trail Part VIA (covering sections
39A - 39ZL); alter Part VIA so that it is not necessary to establish for
prosecution purposes whether a wine is a “single wine” or a
“blend”, clarify the meaning of the word “exclusively”
under Section 40G (2) (Part VIB) and ensure consistent definition of
“grape (wine) products” and “blend of grapes”.
At
present investigations are limited to “wine premises” which means
investigations are unable to extend to other premises such as a vineyard,
contract storage facilities, agents, blenders, wholesalers, retailers,
exporters, transport storage and vehicles. Being unable to inspect vineyards and
vineyard records particularly hampers any investigation into label claims made
either by the grape grower and/or wine manufacturer. Without sufficient
inspection powers the AWBC is unable to ensure all label claims accord with
Australia’s agreement on wine trade to the EU.
LIP provisions have
been widely disseminated to industry and there is a very high level of
compliance, as evidenced by the several hundred LIP audits conducted to date.
The Australian Wine and Brandy Corporation supplies at no cost to manufacturers
up to date brochures on Australian Wine Law, Australian Wine Label Law and the
Label Integrity Program. Changes to compliance requirements are also advised
through its newsletter, The Wine Contact.
The wine industry as a whole
recognises that in the competitive international marketplace the image of
Australian wine, and thus all Australian wine businesses, could be seriously
affected by one unscrupulous operator. Thus it is important to maintain high
standards of compliance.
Only a very small minority of wine manufacturers
keep LIP records to the letter of the law, as they see it, where these records
do not enable an audit trail to be followed. In the AWBC Act, the object of LIP
is to achieve truthfulness in labelling. This cannot be achieved unless the
records required to be kept provide an audit trail from grape crush to point of
sale.
Proposed amendments will remove the need to establish whether a
wine is a single wine or a blend as it is in fact irrelevant to the central
issue of whether proper records have been kept. In a recent case, where no
records were found to have been kept, it was impossible to prove whether the
wine was a single wine or a blend, highlighting the need to clarify the Act.
Amendments to the LIP legislation do not impose any new requirements on
wine manufacturers and therefore no cost is involved. Around 90% of wine is
manufactured by the largest 20 companies and these use sophisticated computer
systems which fully meet requirements and can provide an adequate audit trail.
The majority of the remaining wine companies, over 900, also record an adequate
audit trail. To meet the law, the rest only need to link the wine manufacturing
records they already keep. Compliance costs are absolutely minimal. Clearly,
Part VIA, Division 2, implies an unbroken audit trail by setting out records to
be kept at various steps involved in the manufacture and sale of wine but does
not clearly spell out that every step in the manufacturing and blending process
must be recorded so that a label claim for the final blend can be
justified.
Clarification of the meaning of the word
“exclusively” under Section 40G (2) (Part VIB) and ensuring
consistency in the legislation of the definitions of “grape (wine)
products” and “blend of grapes” are to remove ambiguity and
ensure the provisions are operable.
Under the provisions of the EU/Australia Wine Agreement (Article 3)
Australia is required to take all general and specific measures to ensure treaty
obligations are fulfilled. While proposed amendments to the Act arose out of the
knowledge that it would be difficult to enforce compliance, a recent case
further highlights the problems that will continue to be encountered unless the
amendments are made. Also, there is increasing potential Australia will be
unable to assure the EU that label claims are accurate. Given Australia exports
$400 million worth of wine to the EU per year it is important to ensure
necessary compliance especially as some matters under the EU/Australia Wine
Agreement are still to be finalised. Any doubt about Australia’s ability
to meet its treaty obligations could stall further negotiations creating a deal
of uncertainty over retention of current market share in the EU.
To meet Australia’s obligations under the EU/Australia Wine
Agreement by giving surety to our trading partner that the treaty is adequately
protected by domestic legislation and thus facilitating Australia’s wine
trade with the EU.
Option 1. Provide winemakers with sufficient information to meet their
obligations.
As explained above winemakers are supplied with
sufficient information to understand their obligations, at no additional cost.
The AWBC Act already incorporates penalty provisions for non-compliance. The
amendments do not seek to change or extend these penalty provisions, only to
ensure that the regulator is able to carry out legislative functions to ensure
compliance where the law is breached. The amendments seek to clarify
requirements for compliance so that wine audit trails can clearly be followed
and so that definitions are unambiguous and consistent.
The cost of
non-compliance even by one business may have a significant commercial effect on
the industry as a whole if provisions in the Act cannot be enforced.
Option 2. Amend the Legislation.
While this clearly
addresses the problem of legislative anomalies it does not necessarily inform or
educate the winemakers of their responsibilities and could engender an “us
and them” mentality between the regulator and the industry. This is not
desired and is also not the present circumstance where the AWBC and industry
work cooperatively in formulating a low regulation, high compliance, export
oriented industry.
Option 3. Amend the Legislation and Provide
Information to Wine Businesses.
As explained, the AWBC already
notifies the wine industry on requirements which need to be met. Notification on
changes to the AWBC will be provided through established processes: letters to
all winemakers, AWBC newsletter and the existing LIP and Wine Law labels will be
amended and issued widely to industry, educational bodies etc. This will not
involve additional costs to industry. Clearly Option 3 is the preferred
one.
The impact on the Australian wine industry will be negligible as the
amendments directly relating to the Australia/EU Agreement are just that,
amendments to clarify the existing legislation which complements the Agreement.
The impact of these amendments on small business is the same as for the rest of
the industry. Small wine businesses will not be subject to any increase in
requirements for record-keeping.
While the widened inspection powers
will have potential implications for all participants in the wine industry they
will have no significant impact on the industry in practice as the industry as a
whole seeks to meet its legislative obligations. The proposed amendments provide
for the AWBC to investigate label claims made by a wholesaler, retailer or any
other person already covered by the Act. The power to investigate is not
extended beyond investigation of possible breaches of “label law”.
Nevertheless, ensuring that the legislation is effective where prosecutions are
sought will maintain appropriate respect for the regulator and for
Australia’s wine label compliance regime. It is not expected there will be
any increase in the rate of charges brought against non-compliant
businesses.
The AWBC will not be increasing audit activity as a result of
these legislative changes and no extra AWBC resources will be required.
Any impact on consumers or the community will be positive as a well run
Label Integrity Program ensures the integrity of wine sold domestically and
internationally.
All proposed amendments are the result of extensive consultation within
industry and between industry, the Australian Wine and Brandy Corporation and
Government and have been agreed by the relevant parties in particular the
Legislative Review Committee of the Australian Wine and Brandy Corporation and
the Technical Committee of the Winemakers’ Federation of
Australia.
The Legislative Review Committee of the Australian Wine and
Brandy Corporation (AWBC) which recommends legislative changes to the Department
of Primary Industries and Energy (DPIE) is chaired by an AWBC Board member and
comprises staff of the AWBC, a staff member of the Australian Wine Research
Institute (AWRI), industry representatives, a staff member of the Australia and
New Zealand Food Authority (ANZFA) and an officer of DPIE. The Winemakers
Federation of Australia (WFA) Technical Committee which recommends legislative
changes to the AWBC Legislative Review Committee comprises industry
representatives, and staff members of WFA, AWRI and AWBC.
WFA is the peak
winemakers’ industry body comprised of two electoral colleges; the
Australian Regional Winemakers’ Forum, representing regional (small)
winemakers and the Australian Wine and Brandy Producers’ Association
representing medium and large winemakers. Thus there are appropriate channels to
ensure winemaking businesses are part of the process.
The recommended option is Option 3 to amend legislation so that
compliance obligations are met including international treaty obligations under
the EU/Australia Wine Agreement and make certain that sufficient information is
circulated to wine businesses, educational bodies etc. ensuring compliance
requirements are well known and understood.
The AWBC will not require further staff or procedures to implement the
proposed amendments.
Industry has been closely informed of intended
changes. The amendments to the Act have been referred to the AWBC Legislative
Review Committee and the WFA Technical Committee for clearance, to ensure they
are operable and satisfactory to the industry. Winemakers will again be notified
by WFA and the AWBC when the legislation has passed to ensure they are fully
aware of their compliance responsibilities.
There are no sunset clauses
to be built into these amendments as the functions of the AWBC are ongoing,
however, the existing committee processes will ensure that the legislation
remains relevant and sufficient to maintain a viable wine industry without
imposing burdensome regulation.
Further, under the AWBC Act there is an
annual meeting of industry at which winemaking businesses can vote to recommend
changes to industry policy and legislation.
Clause 1 - Short Title
This clause provides for the Act to
be called the Agriculture, Fisheries and Forestry Legislation Amendment Act
(No 2) 1999.
Clause 2 - Commencement
This clause
provides for the Act to commence on Royal Assent other than the items listed
below.
Schedule 2 will commence on the first day of the first month after
the Act receives Royal Assent.
Items 2 and 3 of Schedule 3 commence on 28
June 1996. This is the day that the Primary Industries and Energy Legislation
Amendment Act (No 1) 1996 commenced which these technical amendments are
correcting.
Schedule 4 is taken to have commenced on 1 April
1999. The key changes reflect the cessation of the
Rural Adjustment Scheme. On 1 April 1999, a new Council was appointed, with
their period of appointment ending on 31 December 2001. It is the intention that
this new Council concentrate on the new role of the Advisory Council and not
continue with its currently legislated role in reporting on the outgoing Rural
Adjustment Scheme. Therefore, it is important that the changes to the Act be
backdated so that the new Council can concentrate on this new
role.
Clause 3 - Schedule(s)
This clause provides that the
Acts referred to in the Schedules are amended as set out in the Schedules and
the other items in the Schedules have effect according to their
terms.
Item 1: Subsection 21(1)
This item extends the notification
of change in assignment by the applicant from 7 days to within 30
days.
Item 2: Subsection 21(3)
This item extends the time
in which the Registrar must notify all parties of a change in the assignment of
rights from 7 days to within 30 days.
Item 3: After subsection
35(2)
This item determines that before an objection can be accepted
by the Secretary it must be accompanied by the prescribed fee.
Item
4: Paragraph 37(5)(c)
This item determines who bears the cost of a
test growing in dealing with a request for revocation of a PBR. If revocation
action is successful, the grantee bears the cost otherwise costs are borne by
the objector.
Item 5: After subsection 37(5)
This item
ensures that the full costs of undertaking a test growing of a variety on behalf
of another UPOV Member State are met by that country.
Item
6: Subsection 43(6)
This item corrects a transcription error. It
clarifies that a variety is ineligible for protection if it has been sold in
Australia for one year or more or 4 to 6 years overseas, depending on the
species.
Item 7: Transitional provision
This item provides
opportunity for specific applications to be reinstated which were made
ineligible due to the reduction of the allowable prior sale period from 6 to 4
years when the Plant Breeder’s Rights Act 1994 was introduced.
Item 8: Subsection 50(5)
This item corrects an error of
placement in the definition of ‘initial variety’.
Item
9: After subsection 50(9)
This item specifies that before an
application for revocation of a grant or an application for revocation of a
declaration that a plant variety is essentially derived from another variety is
accepted by the Secretary it must be accompanied by the prescribed
fee.
Item 10: Subsection 61(2)
This item removes the
requirement to maintain a copy of the Register of Plant Varieties in each State
and Territory. A replacement provision allows the use of alternative media in
disseminating information contained in the Register.
Item
11: Subparagraph 80(2)(a)(iv)
This item is a consequential change
resulting from item 12.
Item 12: At the end of paragraph
80(2)(a)
This item clarifies that, if not already specified in the
Act, the time, circumstances and manner in which prescribed fees are paid may be
specified in the regulations.
SCHEDULE 2 – PRIMARY
INDUSTRIES LEVIES AND CHARGES COLLECTION ACT 1991
Item
1: Subsection 4(1) (definition of buying agent)
This item
amends the definition of buying agent to cover persons (including settlement
agents or solicitors) who in the course of operating a business buy products
on behalf of first purchasers or processors. Settlement agents and solicitors
often act as agents for producers in transactions involving the purchase or sale
of property that also include live-stock (“walk-in-walk-out” sales).
Where they arrange the purchase of property, they are to be regarded as buying
agents. [See also item 9: Subsection 4(1) (definition of selling
agent)].
Item 2: Subsection 4(1) (paragraphs (b) and (c) of the
definition of examinable documents)
This item amends the
definition of examinable documents to ensure that where persons are involved in
the buying and selling of collection products or prescribed goods and services
relating to collection products, an authorised person will be able to access
those records and documents relating to all transactions.
Item
3: Subsection 4(1) (definition of leviable weight)
This
item repeals the definition of leviable weight. As all grains’ levies are
now struck on a value basis, the definition is redundant.
Item
4: Subsection 4(1) (at the end of paragraphs (da), (fa), (fb), (fc) and (ga) of
the definition of producer)
This item corrects minor
typographical omissions by adding “or” at the end of each of
the paragraphs.
Item 5: Subsection 4(1) (subparagraph (h)(ii) of the
definition of producer)
This item, and the next, amends the
definition of producer in relation to fresh grapes, dried grapes or grape juice
and any other prescribed products. The changes update the attributes mirrored in
changes to the administration of the Wine Grapes Levy in 1994/95 and shown in
subparagraph (ah) of the definition of producer.
Item
6: Subsection 4(1) (subparagraph (h)(iii) of the definition of
producer)
This item, and the previous one, amends the definition of
producer in relation to fresh grapes, dried grapes or grape juice.
The effect of the amendments is to redefine:
a) the person, who is both the grower of the grapes and the
proprietor of the place where the grapes are processed, as the producer,
or
b) in any other case, confirm that it is the owner of the grapes
immediately before delivery to the processing establishment who is the
producer.
Item 7: Subsection 4(1) (at the end of paragraphs (hb) and
(ha) of the definition of producer)
This item corrects minor
typographical omissions by adding “or” at the end of each
paragraph.
Item 8: Subsection 4(1) (definition of
proprietor)
This item redefines who is meant to be the
proprietor of an abattoir or another processing establishment.
Anomalies
had been highlighted as to who is legally the proprietor or operator of a
processing establishment, particularly an abattoir. Under laws of most States
and Territories, it is necessary for a proprietor to have a licence to carry out
the activities of an abattoir. Thus, the person who holds this kind of licence
will, for levy collection purposes, be deemed to be the proprietor. In other
cases where such a licence is not mandatory, the proprietor is being defined as
the person carrying on the business of operating the processing establishment.
It is not intended to mean just the person in charge, because this could
merely be the head slaughterer or office manager, but it is intended that the
“proprietor” be the person who has overall legal
responsibility for the operations of the establishment (such as an owner or
lessee). In the case of an abattoir, the proprietor is taken to be the person
who holds the necessary licence to conduct the activities at an abattoir, or
where no licence is needed, the proprietor is the person who is carrying on the
business of operating the establishment. For other processing establishments,
such as canneries, juicing plants or wineries, the proprietor is taken to be the
person who is carrying on the business of operating the establishment.
Item 9: Subsection 4(1) (definition of selling
agent)
This item amends the definition of selling agent to
clarify the intention that persons (including settlement agents or
solicitors) who in the course of operating a business sell products, on
behalf of first purchasers or processors, are to be regarded as selling agents.
Settlement agents and solicitors often act as buying or selling agents for
persons in transactions involving the sale or purchase of property that also
include live-stock (these are sometimes known as “walk-in-walk-out”
sales). Where they arrange the sale of property for a producer, they are to be
regarded as selling agents. [See also item 1: re subsection 4(1) (definition of
buying agent)].
Item 10: Paragraphs 7(1)(d), (2)(c), (3)(a) and (3A)(a)
The item amends each of the listed paragraphs to clarify the role of the intermediary in relation to payments of levy, charge and related penalties. The intermediary is liable to pay, on behalf of the producer, amounts of levy, charge and related late payment penalties. Despite these changes, subsection 7(6) continues to operate so that the intermediary will not have to pay anything under section 7 if the producer has already paid the amount of levy, charge or related late payment penalties. Nevertheless, this and the next item place the emphasis onto the intermediary to collect moneys out of the producers’ proceeds in order that the intermediary can pay amounts of levy, charge or related late payment penalties on the producers’ behalf. There is no intention that both the intermediary and the producer pay the same occurrence of levy, charge or related late payment penalty.
Item 11: After subsection 7(3A)
This item inserts a new subsection 7(3B). The intention is to ensure that where an intermediary would be liable to pay an amount in relation to levy or charge, on behalf of the producer, then any arrangement (express or implied) that would change this obligation is void.
The practice of making arrangements to thwart this purpose or by
pressuring producers to pay their own levy (particularly if that intermediary or
person controls the gross proceeds of the dealings) merely to avoid a duty to
assist their industry maximise levy collections is unsatisfactory. This and the
previous item put the emphasis onto the intermediary to collect moneys out of
the producers’ proceeds so the intermediary can pay amounts in relation to
levy, charge or late payment penalties on the producers’ behalf.
As an intermediary often deals with many producers, it is reasonable to expect, and to minimise the number of collection points, that the intermediary ought to deduct any levy payable from the gross proceeds of the dealing before paying the balance of them to the producer. The intermediary would then be able to aggregate all such deductions and pay the moneys deducted to the collecting authority (where there is an agreement under section10), or the collection organisation (where there is an agreement under section11), or to direct to the Commonwealth, in accordance with the provisions of subsection 7(4).
Item 12: Subsection 8(1)
The item clarifies the provision.
It makes unambiguous that the reference is to the amount of levy or charge that
the intermediary is liable to pay on behalf of the producer. The subsection
allows an intermediary to deduct from proceeds payable to the producer, an
amount necessary to pay any levy or charge on behalf of the
producer.
Item 13: Subsection 8(2)
The item replaces the
existing subsection 8(2). It is intended to put beyond doubt that the producer
is discharged from further liability to pay levy or charge to the extent of the
amount that the intermediary has deducted moneys from the producers’
proceeds.
In addition, there is a new requirement for the intermediary
to provide acknowledgment, to the producer, of the amount deducted and pay it on
behalf of the producer. It is anticipated that most intermediaries will either
issue a formal receipt or provide a suitable record on other documents, such as
sale invoices or payment advices.
This subsection is one of the ancillary
provisions in relation to intermediaries and should be read in conjunction with
section 7.
Item 14: Paragraph 15(3)(a)
This item and the
next correct previous drafting errors in subparagraph 15(3)(a). In the original
drafting the terms “collection products” and “prescribed
goods” were inadvertently substituted by the hybrid expression
“collection goods”.
The paragraph outlines when penalty for
late payment of levy is due with respect to purchase of prescribed goods or
services and collection products.
Item 15: Paragraph
15(3)(a)
This item and the previous item correct previous drafting
errors. In the original drafting the terms “prescribed goods” and
“collection products” were inadvertently substituted by the hybrid
expression “collection goods”.
Item 16: Paragraph
15(4)(a)
This item corrects a previous drafting error in subparagraph
15(4)(a). In the original, drafting the terms “prescribed goods” and
“collection products” were inadvertently substituted by the hybrid
expression “collection goods”.
The heading to section 15 is
also amended to reflect the true intention of the section. The section heading
previously referred to “penalty for non-payment”, the fairer
description is “penalty for late payment”. The penalty
described in the section is applied to late payment of levies and charges rather
than to non-payment of those amounts. It accrues at the rate of 2% per month
compounding on outstanding balances so long as any primary levy or charge debt
remains.
Item 17: Paragraph 16(2)
This item changes the
upper limit of penalty that an authorised person may remit from $2,000 to
$5,000. The limit relates to each instance of penalty incurred. This change
reflects the change of many levies and changes from being struck on a flat by
weight (avoirdupois) or unit rate basis to an ad valorem (by
value) rate. Consequently the number of routine cases in the $2,000 to $5,000
bracket has increased. To achieve proper administrative efficiencies the
increase in the upper limit that an authorised person may remit from $2,000 to
$5,000 is appropriate.
Item 18: Subsection 19(1)
This item
amends the subsection to include the “person in charge” as being
able to give consent for an authorised person to enter premises to carry out an
inspection of examinable documents or other matters under the
Act.
Item 19: Subsection 19(2)(b)
This item amends the
subsection to ensure that an authorised person can physically examine and
inspect examinable documents.
Item 20: After section
19
§ New section 19A: Offence of
obstructing an authorised officer acting under a warrant
This item makes it an offence for a person to obstruct or hinder an authorised person carrying out his/her duties if the authorised person has entered using a warrant.
The maximum penalty, on conviction, is 30 penalty units ($3,300). As at 1
June 1999, one penalty unit equals $110. The value of a penalty unit is
prescribed by subsection 4AA(1) of the Crimes Act 1914 (Clth.).
Subsection 4AB(1) of the Crimes Act 1914 (Clth.) also converts
pecuniary penalties expressed in dollar amounts to penalty
units.
§ New section 19B: Persons to
assist authorised person acting under a warrant
This item provides a
new subsection specifying that the occupier or person in charge of any premises
must provide reasonable assistance to an authorised person carrying out his/her
duties in accordance with a warrant issued under section 20. For example, an
authorised person enters premises under a warrant and it becomes necessary to
examine records stored in a computer or other electronic device, it would be
reasonable to expect that the occupier or person in charge should assist the
authorised person with access to those documents.
The maximum penalty for
failing to render assistance, on conviction, is 30 penalty units.
Item 21: Subsection 22(5)
This item adds to the subsection by obliging an authorised person to present
their identity card to the occupier or the person in charge before
entering premises to carry out inspections or audits.
Item
22: Subsection 24(1) (penalty)
This item replaces the existing penalty, expressed in dollars, with one
expressed in penalty units. The penalty of 60 penalty units equates to $6,600 as
at June 1999. The value of a penalty unit is prescribed by subsection 4AA(1) of
the Crimes Act 1914 (Clth.). Subsection 4AB(1) of the Crimes
Act 1914 (Clth.) also converts pecuniary penalties expressed in dollar
amounts to penalty units
Item 23: At the end of section 24
This item provides that where a person fails to provide a return or information, under subsection 24(1), a Court may direct that the person to provide the return or information and within the time specified.
Item 24: After paragraph 30(2)(b)
This item inserts a provision
into the section to clarify that the regulation making powers include the power
to require persons who produce, or are involved in the production of, prescribed
goods and services to make and keep proper accounts and records.
Item 25: After paragraph 30(2)(c)
This item inserts a provision
into the section to clarify that the regulation making powers include the power
to require persons who produce, or are involved in the production of, prescribed
goods and services to give returns or information for the purposes of the
Act.
Item 26: Paragraph 30(2)(d)
This item replaces the
existing wording to clarify that the provision is intended to allow offences to
be established under the regulations for failure to comply with the requirements
of the regulations. The penalty, on conviction, is a fine not exceeding 10
penalty units.
Item 27: Saving Provision
Despite the repeal
and substitution of paragraph 30(2)(d), this item allows for the continuation of
offences as if they occurred under the amended provision and proceedings,
already in progress, to continue unaffected by the amendments.
SCHEDULE 3 – TECHNICAL AMENDMENTS
These items provide for technical amendments to correct errors in the
Acts.
This item changes the name of the National Landcare Advisory Committee to
the Australian Landcare Council.
Item 2: Subsection 4(1) (definition
of Committee)
This item repeals the definition of Committee as it is
to be replaced with Council to mean the Australian Landcare
Council.
Item 3: Subsection 4(1)
This item inserts Council
which means the Australian Landcare Council established by section
13.
Item 4: Part 4 (heading)
This item repeals the heading
National Landcare Advisory Committee and substitutes it with Australian Landcare
Council.
Item 5: Division 1 of Part 4 (heading)
This item
omits “Committee” and is substituted with
“Council”.
Item 6: Subsection 13(1)
This item
omits “a National Landcare Advisory Committee” and is substituted
with “an Australian Landcare Council”. The heading to section 13 is
replaced by the heading “Australian Landcare
Council”.
Item 7: Division 2 of Part 4 (heading)
This
item omits “Committee” and is substituted with
“Council”.
Item 8: Subsection 27(3)
This item
is repealed because the reference, ‘the first report of the
Committee’, becomes redundant. The Council reports continue unaffected by
the name change.
These items under Part 2 change the name of the “Committee”
to the “Council”, as specified below.
Item 10: Subsection
4(1) (definition of Chairperson)
Item 11: Subsection 4(1)
(definition of member)
Item 12: Paragraph
11(5)(b)
Item 13: Subsection 13(2)
Item 14: Subsection
14(1)
Item 15: Subsection 14(7)
Item 16: Subsection
15(1)
Item 17: Subsection 19(1)
Item 18: Paragraph
20(3)(a)
Item 19: Subsection 20(4)
Item 20: Subsection
23(1)
Item 21: Subsection 23(2)
Item 22: Subsection
23(3)
Item 23: Subsection 27(1)
These items change the name
of “Committee” to “Council”.
Item 24: Transitional – continuity of membership etc. not
effected by amendments
This item means that the continuity of
membership etc. is not affected by amendments. That is, the amendments made by
this Schedule do not affect:
the continuity of the existence of the newly
renamed body, the Australian Landcare Council; or
the continuing validity of
the appointment of the members, the Chairperson, and any deputy members, of the
Council.
This item repeals Part 1 of the Schedule to the Act which provided for
the establishment of a Grains Industry Council. With the repeal of this Part
there will be no industry councils established by this Act.
The definition of “Council” is being changed from the Rural
Adjustment Scheme Advisory Council (RASAC) to the ‘National Rural Advisory
Council’. This definition change is consistent with the dissolution of the
Rural Adjustment Scheme (RAS) and will reflect the broader role that the Council
will undertake in advising the Minister on adjustment issues.
Therefore, the references to the Council in the heading to Part 2 and in
section 5 of the Act need to be changed to read “National Rural Advisory
Council”.
Item 4: Subsection 6(4)
Omitting the word
“functions” and substituting the word “function” is
consistent with drafting practice whereby the singular is used rather than the
plural.
As RAS will no longer be providing any new funding, the whole of Section
8 has been deleted and replaced with more appropriate functions for the National
Rural Advisory Council to undertake.
This new Council will provide the
Minister with such advice and any other information as the Minister requests
about the following matters:
- rural adjustment generally;
- regional
issues, particularly matters regarding entering into agreements with States
relating to rural adjustment;
- matters relating to declarations of
exceptional circumstances;
- training issues, and in particular the Farm
Business Improvement Program; and
- any other matter that the Minister
requests advice or information about.
Omitting the word “functions” and substituting the word
“function” is consistent with drafting practice whereby the singular
is used rather than the plural.
This item ensures that the amendments do not affect the continuity of the
existence and the membership of the body that is renamed as the National Rural
Advisory Council.
Item 1: Subsection 4(1) (at the end of the definition of
wine)
This item, together with item 4, provides a single
definition for wine in the Act.
Item 2: Paragraph 5D(a)
The
origin of wine is accepted by the Australian wine industry to be the region from
where the grapes are sourced not the place where the wine is made. This item
clarifies this principle.
Part VIA of the Act, which includes Section 39C, provides for the Label
Integrity Program. Item 3 adds to the definition of ‘examinable
document’ to allow inspection of other relevant documents.
The definition for wine that applies only to Part VIA of the Act is
deleted by this item.
Item 5 repeals the existing definition for wine premises and adds a new
definition to allow inspection of relevant records which may be kept at a
location away from a winery building.
Item 6: Paragraph
39G(2)(c)
Item 7: Paragraph 39H(2)(c)
Item 8: Paragraph
39J(2)(c)
Item 9: Paragraph 39K(2)(c)
Item 10: Paragraph
39M(2)(e)
Item 11: Paragraph 39N(3)(c)
Item 12: Paragraph
39P(2)(c)
Item 13: Paragraph 39Q(2)(c)
Item 14: Paragraph
39R(3)(e)
The addition of the words “and other details”
to these paragraphs, in conjunction with changes to Section 39W, is to ensure
adequate records are made and kept to ensure an unbroken audit trail to verify
label claims.
The additional words are to ensure an unbroken audit trail is made to
enable the verification of label claims.
This item makes clear that amendments to Items 6-15 will not apply
retrospectively.
Item 17 clarifies the intention of the Act is not to require proof as to
whether a wine is a blend or a single wine but rather whether adequate records
have been kept about the wine to enable label verification.
This item corrects a cross-referencing error.
Item
19: Subsection 39ZL(2)
This item corrects a cross-referencing
error.
Item 20 adds Section 40ZF which clarifies that inspection powers under
Part VIA and Part VIB are the same.
Inspection powers under Part VIA and Part VIB also apply to the export of
grape products. The addition to Section 44 clarifies this.