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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
PIG
INDUSTRY BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the Minister for Agriculture, Fisheries and Forestry,
the Hon Warren
Truss MP)
ISBN: 0642 454167
PIG INDUSTRY BILL 2000
GENERAL OUTLINE
The Bill is designed to allow for the
creation of a pig industry services body responsible for the industry’s
strategic policy development as well as the industry’s marketing and
R&D services, formerly provided by the Australian Pork Corporation (APC) and
the Pig Research and Development Corporation (PRDC). The Bill will repeal the
enabling legislation for the APC and PRDC and provide for the transfer of
assets, liabilities and staff of the statutory authorities to the new industry
services body.
The new not for profit industry services body, limited
by guarantee, will operate under Corporations Law and all statutory levy payers
will be eligible to register for membership and full voting rights in the
industry services body. To deliver its objects and strategic and operational
plans, the board of the industry services body will be required to supplement
the skill mix of its five member elected directors with specialist skilled
directors, including an independent director highly skilled in corporate
governance.
The Bill provides the Minister with the power to enter into a
funding contract with an eligible body to enable it to receive and administer
levies collected by the Commonwealth for industry marketing and promotion,
research and development (R&D), and the Commonwealth’s matching
funding for eligible R&D expenditure. The Minister may then declare the body
with which the contract is made to be the industry services body.
The
contract will also include provisions relating to the transfer of assets and
liabilities from the statutory corporations and will impose certain obligations
and accountability requirements on the industry services body. The detail of the
new industry services body’s accountability arrangements to its members
and to the Commonwealth will be outlined in the industry services body
constitution and the contract between the body and the Commonwealth.
The
Bill provides for recognition of accrued entitlements of employees of the
statutory authorities who are transferring to the industry services body. These
entitlements relate to annual and long service leave, continuity of service and
other employment conditions. It also provides for the final reports of the APC
and PRDC.
The Bill provides for the transfer of assets and liabilities of the
Australian Pork Corporation and the Pig Research and Development Corporation to
the new industry services body.
The net value of assets to be transferred
is approximately $7.4m, principally involving funds held in marketing and
promotion and R&D accounts on behalf of industry levy payers.
Part 1 - Preliminary
Clause 1: Short
title
This clause provides for the Act to be called the Pig
Industry Bill 2000.
Clause 2: Commencement
This clause
provides for the Act to commence on the day on which it receives Royal Assent,
with Schedule 1 (other than item 107) to commence immediately after transfer.
Item 107 of Schedule 1 recognises the Administrative Appeals Tribunal is to be
changed to the Administrative Review Tribunal in the near future when its
enabling legislation comes into effect.
Clause 3:
Schedule(s)
This clause provides for the Act to amend or repeal
earlier Acts.
Clause 4: Crown to be bound
This clause
provides for the Act to bind the Crown but not make it liable to be prosecuted
for an offence.
Clause 5: External Territories
This clause
provides for the Act to extend to all the external Territories.
Clause 6: Extraterritorial operation
This clause provides
for the Act to extend to acts, omissions, matters and things outside Australia,
whether or not in a foreign country.
Part 2 -
Interpretation
Clause 7: Definitions
This clause
provides for terms in this Act to be defined.
Part 3 – Provision
of pig industry services
Division 1 – Transitional functions
of statutory authorities
Clause 8: Functions of statutory
authorities
This clause provides that the functions of the existing
statutory authorities (the Australian Pork Corporation, APC, and the Pig
Research and Development Corporation, PRDC) be extended to include a function
enabling them to assist in the transition to the new industry arrangements,
including meeting expenses. In respect of this, the Minister may provide
direction in writing to the APC and PRDC to ensure they assist in the industry
transition.
Division 2 – Funding contract
Clause
9: Funding contract
This clause provides for the Minister, on behalf
of the Commonwealth, to enter into a contract with an eligible body which will
allow the Commonwealth to make marketing, research and development and matching
R&D payments to the body.
The clause ensures the contract satisfies
the Minister that the public accountability requirements of the Commonwealth are
met. The public accountability requirements relate to the use of marketing
payments for marketing, promotion, strategic policy development and other
activities for the benefit of the Australian pig industry; R&D payments for
research and development activities for the benefit of the Australian pig
industry; and Commonwealth matching payments on eligible expenditure on research
and development activities for the benefit of the Australian pig industry and
the Australian community in general.
The clause also provides that the
Commonwealth is not obliged to pay the full amounts that could be paid from the
money collected by the Commonwealth as the pig industry levy.
In
addition, the clause provides the contract may include provisions relating to
the industry assets and liabilities being transferred from the statutory
authorities to the industry services body.
Clause 10: Appropriation
for payments under funding contract
This clause provides for the
amounts payable for marketing, R&D, and matching payments to be appropriated
from Consolidated Revenue.
The clause defines the marketing levy and the
R&D levy and provides an overall limit for marketing payments, R&D
payments, and Commonwealth matching payments for eligible R&D expenditure.
The clause also provides an annual limit for Commonwealth matching
payments for eligible R&D expenditure. This amount is not to exceed the
lesser of either the 0.5% of the gross value of pig meat production (GVP) for
the financial year or 50% of the amount spent by the eligible body on activities
that qualify under the funding contract in that financial year, in line with the
Commonwealth's matching funding policy. It provides for the Minister to
determine the GVP of pigmeat production.
Division 3 – Industry
services body
Clause 11: Declaration of industry services
body
In order for the Minister to be able to provide for the new pig
industry services body to deliver the marketing, research and development and
strategic policy services to the pig industry as intended, there is a need to
formally declare the company that has these functions. This is achieved in this
clause by providing for the Minister to declare a body to be the industry
services body if a funding contract has been made that provides for payments to
an eligible body.
Clause 12: Ministerial directions to industry
services body
This clause provides for the Minister to give a written
direction to the industry services body. The direction must meet the criteria of
being in the national interest because of exceptional and urgent circumstances.
The industry services body must comply with any such direction.
The
clause requires the Minister to be satisfied that the direction would not
require the industry services body to incur expenses greater than amounts
provided under the Act and that the Minister has given the industry services
body's directors an adequate opportunity to discuss the need for the proposed
direction. The direction must be laid before each House of Parliament within 15
sitting days, unless the Minister makes a written determination that doing so
would prejudice either the national interest or the industry services body's
commercial activities.
Division 4 - Transfer of assets etc. of
statutory authorities
Clause 13: Transfer time
This
clause provides for the Minister to declare in writing the specific time of
transfer of assets, liabilities and staff from the statutory authorities,
immediately after which the APC and PRDC will cease to exist.
Clause
14: Successor body
This clause provides that the company which has
been declared as the industry services body then becomes the successor body to
the APC and PRDC.
Clause 15: Transfer of assets of statutory
authorities
This clause provides a mechanism to transfer an asset of
one statutory authority (the transferor) to either the industry
services body or to the Commonwealth (the transferee). It provides
for the Minister to declare that the ownership of specific assets automatically
vests in the transferee without any other conveyance or transfer. In addition
instruments relating to asset ownership apply to the transferee after the
transfer time. It also provides that the transferee becomes the transferor's
successor-in-law in relation to the assets. The Minister may sell any asset that
vests in the Commonwealth.
Clause 16: Transfer of liabilities of
statutory authorities
This clause provides a mechanism to transfer a
liability of one statutory authority (the transferor) to either
the industry services body or to the Commonwealth (the
transferee). It provides for the Minister to make declarations
specifying that particular liabilities become liabilities of the transferee
without any other conveyance or transfer. In addition instruments relating to
those liabilities are to apply to the transferee after the transfer time. It
also provides that the transferee becomes the transferor's successor-in-law in
relation to those liabilities. The Commonwealth may use the Consolidated Revenue
Fund to discharge liabilities which it obtains from the statutory
authorities.
Clause 17: Adjustment payments by
Commonwealth
This clause provides that after the transition is
complete, the Minister may authorise payments from the Consolidated Revenue Fund
to the industry services body. These payments are limited to the value of
assets received from the APC and PRDC at the time of transfer, plus the proceeds
of any asset sales, interest or dividends earned after transfer, less any
expenses or liabilities incurred by the Commonwealth or other person or body as
part of the industry restructure. This clause provides that all net industry
assets held by the Commonwealth after transition are to be forwarded to the
industry services body.
Clause 18: Registration of land
transfers
This clause allows for the registration of any right, title
or interest in land transferred to a transferee as part of an asset transfer
under clause 17. It provides for the lodgement of an appropriate certificate
signed by the Minister and for a land registration official to register that
transfer in accordance with the certificate. The clause also provides that the
Lands Acquisition Act 1989 does not apply in relation to anything done
under this clause.
Clause 19: Certificates in relation to assets other
than land
This clause allows for the registration of an asset other
than land transferred to the transferee as part of an asset transfer under
clause 17. It provides for the lodgement of an appropriate certificate signed by
the Minister and for an assets official to register that transfer in accordance
with the certificate. The clause may apply, for example, to registered patents
and trade marks.
Clause 20: Exemption from stamp duty
etc.
This clause provides that the transfer or sale of an asset under
Clause 17 or the transfer or discharge of a liability under Clause 18 do not to
give rise to stamp duty or other tax liability under any State or Territory law.
This is intended to ensure that the steps taken in the pork industry restructure
do not give rise to any stamp duty or other State/Territory tax liability that
would not have occurred if the restructure had not taken place.
The
clause also provides that the Minister may certify in writing that a specified
matter is an exempt matter or is a specified thing done in
connection with an exempt matter.
Clause 21: Operation
of GST Law
The clause provides that, for the purposes of the GST Law
(as defined in A New Tax System (Goods and Services Tax) Act 1999),
the transfer of assets of the statutory authorities to the new industry
services body is deemed to be consideration given by the Commonwealth (which for
this purpose will be regarded as acting through AFFA) to the body in connection
with the obligations entered into by the body in the funding contract under
clause 9. This will ensure that the Commonwealth is entitled to receive an
input tax credit corresponding to the full GST liability of industry services
body for taxable supplies arising under the funding contract.
Division
5 – Transferring employees of statutory
authorities
Subdivision A – Leave entitlements and
continuity of service
Clause 22: Leave entitlements and continuity
of service
This clause provides that staff members transferring from
the APC and PRDC to the industry services body will be entitled for the industry
services body to recognise their years of service as well as their accrued long
service leave, recreation leave and sickness leave entitlements at the time of
transfer.
Subdivision B – Safety, Rehabilitation and
Compensation Act
Clause 23: Expressions defined in SRC
Act
This clause provides that expressions defined in the SRC Act and
used in this Subdivision have the same meanings as in that Act.
Clause
24: Continued application of SRC Act
This clause provides for the
continued application of the SRC Act after the transfer time in relation to
injuries to employees and loss of, or damage to, property incurred by an
employee of a statutory authority before the transfer time.
Clause 25:
Commonwealth liability to meet certain SRC Act liabilities
This
clause provides for the Commonwealth to continue to be liable after the transfer
time for the liabilities of the Australian Pork Corporation under section 128A
of the SRC Act incurred before the transfer day.
Clause 26:
Rehabilitation provisions
This clause provides for the Commonwealth
to receive co-operation from the industry services body in order for the
Commonwealth to continue to fulfil its obligations under the SRC Act arising
from liabilities which occurred prior to the transfer time. This clause also
provides that the SRC Act will apply to the industry services body in some
situations, as the relevant employer, after the transfer time.
Clause
27: Premiums under the SRC Act
Subdivision C – Deferred DFRDB Act benefits
Clause
28: Saving of deferred benefits
This clause provides for a
transferring employee to retain deferred benefits under the DFRDB Act if the
employee was entitled to such benefits immediately before the transfer time.
Further, employment with the industry services body after the transfer time is
considered to be public employment for the purposes of the DFRDB Act, providing
the employee continues with the industry services body.
Subdivision D
– Maternity leave
Clause 29: Maternity leave starting before
transfer time
This clause provides for a transferring female employee
of the APC or PRDC who was on maternity leave before the transfer time to
continue to have access to maternity leave after the employee is transferred to
the industry services body.
Clause 30: Maternity leave starting after
transfer time
This clause provides for the continuation of maternity
leave entitlements for transferring female employees after they have transferred
from the statutory authority to the industry services body, for up to 9 months
after the transfer time.
Subdivision E – Long Service
Leave
Clause 31: Expressions defined in Long Service Leave
Act
This clause provides that expressions used in this Subdivision
that are defined in the Long Service Leave Act have the same meanings as in that
Act.
Clause 32: Long Service Leave for employees with less than 10
years service
This clause provides for former employees of the APC
and PRDC with less than 10 years service at the time of transfer to carry over
their accrued long service leave entitlements to the industry services body. If
the employees combined service period both before and after transition time
subsequently becomes at least 10 years, the industry services body may
grant the long service leave entitlement on full salary. If the employee
with less than 10 years continuous service stops being an employee of the
industry services body after reaching minimum retiring age or because of
retrenchment, and they have had at least one year continuous employment (before
and after transition time), they may be granted their leave credit on full
salary.
The clause also provides leave may be granted at half pay and
provides that the rate of salary to be used is as intended in the Long Service
Leave Act.
Clause 33: Payments in lieu of long service leave for
employees with less than 10 years service
This clause provides that
the industry services body must pay the long service leave entitlement
for former employees of the APC and PRDC in the circumstances as described in
Clause 38. In addition, this clause provides for payments of accrued long
service leave entitlements in the case of ill-health.
Clause 34:
Payments on the death of an employee
This clause provides that the
industry services body must pay the long service leave entitlement for employees
with less than 10 years combined service, but more than one year continuous
service and with one or more dependants, who dies after the transfer time. The
benefit is to be paid to their dependants.
Clause 35: Employee's long
service leave credit for the purposes of sections 32 and 33
This
clause provides for the calculation of the long service leave credit of a
transferred employee, for use in clauses 38 and 39. In respect of clause 38 the
long service leave credit commences when the employee commenced with the APC or
PRDC and ended at the transfer time. In respect of clause 39 the long service
leave credit is as for clause 38 less any long service leave credit that has
been used.
Clause 36: Employees with at least 10 years
service
This clause provides for the long service leave benefits
accrued by transferring employees of the APC and PRDC with at least 10 years
service to continue to be available as intended by the Long Service Leave Act
when the employee is transferred to the industry services body. However, the
transferred employee is not entitled to receive payment simply because they have
ceased to be employed in the Australian Public Service.
Clause 37:
Division not to affect post-commencement long service leave
rights
This clause provides that this Division does not affect any
long service leave rights acquired by the employee after the transfer
time.
Subdivision F - Miscellaneous
Clause 38: Cessation
of mobility rights
This clause provides for employees where relevant
to cease to have rights under section 6 or 7 of the Public Service Act 1999 and
to cease to be employees of the Australian Public Service after transfer to the
industry services body.
Clause 39: Transferring employees who accept
employment with equivalent terms and conditions
This clause provides
that transferring staff employed by the industry services body on terms and
conditions at least equivalent to those they received while in employment with
the APC or PRDC, as relevant, will not be entitled to receive any payment or
redundancy or other benefit merely because they cease to be an employee of the
statutory authority because of this Act.
Under this clause the
determination of equivalent terms and conditions of employment, when taken as a
whole after transfer time, is to be determined by the Minister. An application
to review the Minister’s determination can be made to the Administrative
Appeals Tribunal. The clause also defines how equivalent terms and conditions
are determined.
Division 6 - Miscellaneous
Clause 40:
Operation of Archives Act
This clause requires that Commonwealth
records are transferred or otherwise dealt with as permitted under the
Archives Act 1983 and as administered by National Archives of
Australia.
Clause 41: Certificates, declarations etc. taken to be
authentic etc.
This clause provides that a certificate, declaration
or other document that appears to be made or issued under Part 3 of the Bill is
taken to be authentic unless the contrary is established.
Clause 42:
Publication of declarations
This clause provides that declarations
made by the Minister under Part 3 of the Bill are to be published in the Gazette
within 14 days. However, failure to comply with this will not affect the
validity of a declaration.
Part 4 - Miscellaneous
Clause
43: Delegation
This clause provides for the Minister to delegate any
or all of his or her powers and functions to either the Secretary of the
Department or an SES employee or acting SES employee of the Department. The
delegate, in exercising these powers or functions, must comply with any
directions of the Minister.
Clause 44: Compensation for acquisition
of property
This clause provides for compensation to be paid by the
Commonwealth to a person from whom property is acquired on other than just terms
as a result of the operation of the Bill. If the Commonwealth and the person in
question cannot agree on the amount of any such compensation to be paid, the
Federal Court may, on application by the person from whom the property was
acquired, determine what is a reasonable amount of compensation for the
acquisition of the property.
Clause 45: Commonwealth expenses in
connection with abolition of statutory bodies etc.
This clause
provides for the Commonwealth to make payments from the Consolidated Revenue
Fund to meet expenses or liabilities incurred whilst participating in the
abolition of the APC and PRDC and in implementing the new pork industry
structure. Payments may also be made to reimburse a person or body who has
incurred expenses whilst participating in the same activities.
The amount
paid from the Consolidated Revenue Fund is limited to the value of assets
received from the APC and PRDC at the time of transfer, plus the proceeds of any
asset sales, interest or dividends earned after transfer less any expenses or
liabilities incurred by the Commonwealth or other person or body as part of the
industry restructure.
Clause 46: Regulations
This clause
provides for the Governor-General to make regulations to carry out this Act.
Schedule 1 – Amendments and repeals
Part 1
– Amendments and repeals of Acts
This item provides that the Australian Pork Corporation is no longer subject
to providing documents in respect of its commercial activities under the FOI
Act.
This item repeals the Pig Industry Act 1986 with the result that the
Australian Pork Corporation will cease to exist.
Item 3 Subsection ^39(3)
This item covers the proposed change
from the Administrative Appeals Tribunal to the Administrative Review
Tribunal.
Item 4 Clause 1 of Schedule 22 (definition of
Corporation)
This item repeals the definition of
Corporation in this Clause.
This item adds the definition ‘industry services body’ to
ensure it has the same meaning as in the Pig Industry Act 2000
.
Item 6 Clause 1 of Schedule 22 (definition of R&D
authority)
This item repeals the definition of R&D
authority in this Clause.
Item 7 Clause 1 of Schedule 22
(definition of R&D Corporation)
This item repeals the
definition of R&D Corporation in this Clause.
Item 8 Clause
1 of Schedule 22 (definition of R&D Council)
This item repeals
the definition of R&D Council in this Clause.
Item 9 Clause
1 of Schedule 22 (definition of R&D Fund)
This item repeals
the definition of R&D Fund in this Clause.
Item 10 Clause 3
of Schedule 22 (notes 1 and 2)
This item corrects a drafting error in the
Act which incorrectly identified the destination of amounts available under the
Pig Industry Act 1986.
This item replaces the term “R&D authority” with the
term “industry services body” in this Subclause.
This item replaces the term “that authority” with the term
“that body” in this Subclause.
This item replaces the first occurring reference to “Corporation”
in this Subclause with the term “industry services body”.
This item replaces the last occurring reference to “Corporation”
in this Subclause with the term “body”.
Item 15 Subsection 128A(4) (paragraph (m) of the definition of
prescribed Commonwealth authority)
This item
provides that the Australian Pork Corporation is no longer a prescribed
Commonwealth Authority under the Safety, Rehabilitation and Compensation Act
1988.
Part 2 – Repeal of regulations
Pig
Research and Development Corporation Regulations
This item repeals the Pig Research and Development Corporation Regulations
with the result that the Pig Research and Development Corporation will cease to
exist.
Part 3 – Transitional and savings
This item provides for the directors of the APC and PRDC to prepare an annual
report in relation to the final reporting period for each Corporation. The final
reporting period is from the commencement of the financial year in which the
transfer time occurred up to immediately before the transfer time. The reports
are to be consistent with the requirements set out under the Commonwealth
Authorities and Companies Act 1997 as well as the requirements of their
respective enabling legislation as if it continued to have effect after the
transfer time.
This item also provides for the directors of the
Corporations to be treated as continuing directors with entitlements to
allowances and remuneration whilst preparing the final reports. Their expenses
as directors will be paid by the Commonwealth and the Consolidated Revenue Fund
is appropriated for that purpose.