BARLEY MARKETING ACT 1993 TABLE OF PROVISIONS PART 1--Preliminary 1. Short title 3. Interpretation 5. Review of operation of Part 4 PART 4--Marketing 33. Delivery of barley 33A. Authorisation 34. Property in barley passes to ABB Grain Export Ltd on delivery 35. Authorised receivers 36. Declaration of season of barley delivered to ABB Grain Export Ltd 37. ABB Grain Export Ltd to market barley 41. No claim against ABB Grain Export Ltd in respect of rights in barley PART 10--General 73. Annual report 74. Regulations PART 11--Transfer of property 75. Transfer of property and dissolution of Board 76. Issue and vesting of shares 77. Substitution of party to agreement 78. Board instruments 79. Proceedings 80. Stamp duty 81. Staff 82. Operation of this Part does not place a person in breach of contract etc Legislative history BARLEY MARKETING ACT 1993 - LONG TITLE An Act relating to the marketing of barley and for other purposes. BARLEY MARKETING ACT 1993 - SECT 1 1--Short title This Act may be cited as the Barley Marketing Act 1993. BARLEY MARKETING ACT 1993 - SECT 3 3--Interpretation (1) In this Act-- "ABB Grain Ltd" means ABB Grain Ltd A.C.N. 084 962 130; "ABB Grain Export Ltd" means ABB Grain Export Ltd A.C.N. 084 962 112; "authorised receiver" means a person authorised under Part 4 to receive barley on behalf of ABB Grain Export Ltd; "barley" includes the grain known by that name, growing crops of that grain, gristed grain of that name and grain of that name treated in any other manner or by any process converted into the product of grain of that name; "Board" means the Australian Barley Board constituted under this Act as in force before the commencement of section 17 of the Barley Marketing (Miscellaneous) Amendment Act 1999; "Board instrument" means an instrument (including a legislative instrument other than this Act) subsisting immediately before the relevant date-- (a) to which the Board was a party; or (b) that was given to or in favour of the Board; or (c) that refers to the Board; or (d) under which-- (i) money is, or may become, payable to or by the Board; or (ii) other property is to be, or may become liable to be, transferred to or by the Board; "grower" means-- (a) a person by whom or on whose behalf, barley is grown or produced for sale; and (b) where barley is grown or produced for sale by a partnership or under a share-farming agreement, the members of the partnership or the parties to that agreement, but does not include a person who grows or produces barley for sale as an employee of another person; "instrument" includes a document and an oral agreement; "liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective; "pooled grain" means barley of a season commencing before 1 July 1999 delivered to the Board that became part of a pool established by the Board; "property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description; "relevant date" means the date fixed under subsection (2) or 30 June 1999, whichever is the earlier; "rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective; "season" means a period of 12 months commencing on 1 July; "transferred property" means property, rights and liabilities that, under Part 11, have vested in, or become liabilities of, ABB Grain Ltd or ABB Grain Export Ltd. BARLEY MARKETING ACT 1993 - SECT 5 5--Review of operation of Part 4 (1) The Minister must, at the end of two years from the commencement of this section, review the operation of Part 4. (2) A report on the review must be prepared and laid before both Houses of Parliament. BARLEY MARKETING ACT 1993 - SECT 33 33--Delivery of barley (1) Subject to this Act, a person must not sell or deliver barley to a person other than ABB Grain Export Ltd. (2) A person must not transport barley which has been sold or delivered in contravention of subsection (1) or bought in contravention of subsection (4). (3) Subsections (1) and (2) do not apply to-- (a) barley retained by the grower for use on the farm where it is grown; (b) barley purchased from ABB Grain Export Ltd; (c) barley sold or delivered for consumption in Australia; (d) barley which does not meet the standards determined by ABB Grain Export Ltd. (4) A person, other than ABB Grain Export Ltd, must not buy barley from another person except for consumption in Australia. (5) Subsections (1) and (4) do not apply to a sale, delivery or purchase of barley for consumption outside Australia if the barley is packed in a bag or in a container not capable of holding more than 50 tonnes of barley and the barley-- (a) meets the prescribed standards (if any); and (b) is so packed in accordance with the prescribed requirements (if any). (5a) Subsections (1) and (4) do not apply to a sale, delivery or purchase of propagating material of a plant variety covered by a plant breeder's right if the sale, delivery or purchase is for use of the propagating material for a purpose involving the production or reproduction of the propagating material (terms used in this subsection having the same meanings as in the Plant Breeder's Rights Act 1994 of the Commonwealth as in force from time to time). (6) The maximum penalty for an offence against this section is-- (a) for a first offence--$500 000; (b) for a subsequent offence--$1 000 000. BARLEY MARKETING ACT 1993 - SECT 33A 33A--Authorisation For the purposes of Part IV of the Trade Practices Act 1974 of the Commonwealth and the Competition Code, the following are specifically authorised: (a) the export of barley by ABB Grain Export Ltd; (b) anything done by ABB Grain Export Ltd in connection with the export of barley. BARLEY MARKETING ACT 1993 - SECT 34 34--Property in barley passes to ABB Grain Export Ltd on delivery On delivery of barley to ABB Grain Export Ltd, unless it is otherwise agreed or the barley does not meet the standards determined by ABB Grain Export Ltd-- (a) the property in the barley immediately passes to ABB Grain Export Ltd; and (b) the owner of the barley is to be taken to have sold it to ABB Grain Export Ltd at the price for the time applicable. BARLEY MARKETING ACT 1993 - SECT 35 35--Authorised receivers (1) ABB Grain Export Ltd may, by instrument, appoint a person to be an authorised receiver for the purposes of this Act. (2) A person may deliver barley to an authorised receiver. (3) Delivery of barley to an authorised receiver is, for the purposes of this Act, delivery to ABB Grain Export Ltd. (4) An authorised receiver-- (a) holds, on behalf of ABB Grain Export Ltd, all barley the property of ABB Grain Export Ltd which is at any time in the receiver's possession; (b) must not part with the possession of any such barley except in accordance with instructions from ABB Grain Export Ltd or from a person authorised by ABB Grain Export Ltd to give such instructions. BARLEY MARKETING ACT 1993 - SECT 36 36--Declaration of season of barley delivered to ABB Grain Export Ltd (1) Any person who, after the declared day in relation to a season, consigns or delivers to an authorised receiver any barley harvested before that day, must make and forward to the authorised receiver a declaration stating the season during which that barley was harvested. Maximum penalty: $10 000. (2) For the purposes of this section-- "declared day" means the day which, in respect of a season, is declared by ABB Grain Export Ltd by notice in the Gazette, to be the final day for delivery of barley of that season. BARLEY MARKETING ACT 1993 - SECT 37 37--ABB Grain Export Ltd to market barley (1) ABB Grain Export Ltd must market or otherwise dispose of, to the best advantage, all barley delivered to it under this Act. BARLEY MARKETING ACT 1993 - SECT 41 41--No claim against ABB Grain Export Ltd in respect of rights in barley A person does not have a claim against ABB Grain Export Ltd in respect of any right, title or interest in barley delivered to ABB Grain Export Ltd. BARLEY MARKETING ACT 1993 - SECT 73 73--Annual report ABB Grain Ltd must give to the Minister a copy of its annual report under the Corporations Law together with such information about the operations of ABB Grain Ltd and ABB Grain Export Ltd as the Minister requires. BARLEY MARKETING ACT 1993 - SECT 74 74--Regulations (1) The Governor may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations-- (a) may be of general or limited application; (b) may apply, adopt or incorporate, with or without modification, any code, standard or other document prepared or approved by a body or authority referred to in the regulation as in force from time to time or as in force at a specified time; (c) may differ according to differences in time, place or circumstances; (d) may impose a maximum penalty of $10 000 for a breach of a regulation. (3) Where a code, standard or other document is applied, adopted or incorporated in a regulation-- (a) a copy of the code, standard or other document must be kept available for inspection by members of the public, without charge and during normal office hours, at a place approved by the Minister; and (b) in any legal proceedings, evidence of the contents of the code, standard or other document may be given by production of a document apparently certified by or on behalf of the Minister as a true copy of the code, standard or other document. BARLEY MARKETING ACT 1993 - SECT 75 75--Transfer of property and dissolution of Board (1) On the relevant date-- (a) the property and rights of the Board, wherever located, other than property and rights in pooled grain or which relate to pooled grain or in shares in ABB Grain Ltd, vest in ABB Grain Ltd; and (b) the liabilities of the Board, wherever located, other than liabilities in respect of pooled grain, become liabilities of ABB Grain Ltd. (2) On the relevant date-- (a) the property and rights of the Board, wherever located, in pooled grain or which relate to pooled grain vest in ABB Grain Export Ltd; and (b) the liabilities of the Board, wherever located, in respect of pooled grain, become liabilities of ABB Grain Export Ltd. (3) The Board is dissolved on the day after the relevant date. BARLEY MARKETING ACT 1993 - SECT 76 76--Issue and vesting of shares (1) Before the relevant date, in consideration for the transfer of property of the Board under section 75-- (a) a number of A class shares in ABB Grain Ltd are to be issued to the Board, being a number equal to the number of persons who are to have shares vested in them in accordance with an arrangement determined by the Minister and the Victorian Minister, notice of which has been published in the Gazette; and (b) a number of B class shares in ABB Grain Ltd are to be issued to the Board, being a number equal to the sum of the number of those shares that are to be vested in persons in accordance with an arrangement determined by the Minister and the Victorian Minister, notice of which has been published in the Gazette. (2) On the day after the relevant date-- (a) a number of A class shares in ABB Grain Ltd are vested in the persons who are to have such shares vested in them in accordance with the arrangement referred to in subsection (1)(a), each such person receiving one such share; (b) a number of B class shares in ABB Grain Ltd are vested in the persons who are to have such shares vested in them in accordance with the arrangement referred to in subsection (1)(b), each such person receiving the number of such shares determined in accordance with that arrangement. (3) Each person in whom a share is vested under this section becomes a member of ABB Grain Ltd and will be taken to have consented to be such a member. (4) In this section-- "A class share" means an A class share as provided for in the constitution of ABB Grain Ltd; "B class share" means a B class share as provided for in the constitution of ABB Grain Ltd. (5) This section has effect despite anything in the Corporations (South Australia) Act 1990. BARLEY MARKETING ACT 1993 - SECT 77 77--Substitution of party to agreement If, under section 75, rights and liabilities of the Board under an agreement vest in, or become liabilities of, ABB Grain Ltd or ABB Grain Export Ltd-- (a) ABB Grain Ltd or ABB Grain Export Ltd, as the case requires, becomes, on the relevant date, a party to the agreement in place of the Board; and (b) on and after the relevant date, the agreement has effect as if ABB Grain Ltd or ABB Grain Export Ltd, as the case requires, had always been a party to the agreement. BARLEY MARKETING ACT 1993 - SECT 78 78--Board instruments Each Board instrument relating to transferred property continues to have effect according to its tenor on and after the relevant date as if a reference in the instrument to the Board were a reference to ABB Grain Ltd or ABB Grain Export Ltd, as the case requires. BARLEY MARKETING ACT 1993 - SECT 79 79--Proceedings If, immediately before the relevant date, proceedings (including arbitration proceedings) relating to transferred property to which the Board was a party were pending or existing in any court or tribunal, then, on and after the relevant date, ABB Grain Ltd or ABB Grain Export Ltd, as the case requires, is substituted for the Board as a party to the proceedings and has the same rights in the proceedings as the Board. BARLEY MARKETING ACT 1993 - SECT 80 80--Stamp duty No stamp duty is chargeable in respect of anything done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of this Part. BARLEY MARKETING ACT 1993 - SECT 81 81--Staff A person who, immediately before the relevant date, was an employee of the Board-- (a) becomes, on that date, an employee of ABB Grain Ltd with the same rights and entitlements as he or she had immediately before that date; and (b) is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the Board. BARLEY MARKETING ACT 1993 - SECT 82 82--Operation of this Part does not place a person in breach of contract etc To avoid doubt, the operation of this Part is not to be regarded as-- (a) placing a person in breach of contract or confidence; or (b) otherwise making a person guilty of a civil wrong; or (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating-- (i) the assignment or transfer of any asset, liability, right or obligation; or (ii) the disclosure of any information; or (d) releasing any surety from any of the surety's obligations in relation to a liability or obligation that is transferred under this Part. BARLEY MARKETING ACT 1993 - NOTES Legislative history Notes * Please note--References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. * Earlier versions of this Act (historical versions) are listed at the end of the legislative history. * For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Repeal of Act The Barley Marketing Act 1993 was repealed by Sch 2 cl 1 of the Barley Exporting Act 2007 on 1.7.2007. Legislation repealed by principal Act The Barley Marketing Act 1993 repealed the following: Barley Marketing Act 1947 Principal Act and amendments Year No Title Assent Commencement 1993 23 Barley Marketing Act 1993 15.4.1993 11.10.1993 (Gazette 7.10.1993 p1677) 1998 6 Barley Marketing (Application of Parts 4 and 5) Amendment Act 1998 2.4.1998 2.4.1998 1998 37 Barley Marketing (Deregulation of Stockfeed Barley) Amendment Act 1998 30.7.1998 15.10.1998 (Gazette 13.8.1998 p400) 1998 44 Wheat Marketing (Grain Deductions) Amendment Act 1998 27.8.1998 15.10.1998 (Gazette 8.10.1998 p1058) 1999 31 Barley Marketing (Miscellaneous) Amendment Act 1999 10.6.1999 1.7.1999 (Gazette 1.7.1999 p2) 1999 77 Barley Marketing (Miscellaneous No. 2) Amendment Act 1999 2.12.1999 2.12.1999 2000 67 Barley Marketing (Miscellaneous) Amendment Act 2000 30.11.2000 30.11.2000 Provisions amended Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1 s 2 omitted under Legislation Revision and Publication Act 2002 s 3 s 3(1) ABB Grain Ltd inserted by 31/1999 s 3(a) 1.7.1999 ABB Grain Export Ltd inserted by 31/1999 s 3(a) 1.7.1999 authorised receiver substituted by 31/1999 s 3(a) 1.7.1999 Board amended by 31/1999 s 3(b) 1.7.1999 Board instrument inserted by 31/1999 s 3(c) 1.7.1999 Committee deleted by 31/1999 s 3(c) 1.7.1999 grain deleted by 31/1999 s 3(c) 1.7.1999 instrument inserted by 31/1999 s 3(d) 1.7.1999 liabilities inserted by 31/1999 s 3(d) 1.7.1999 marketing deleted by 31/1999 s 3(d) 1.7.1999 oats deleted by 31/1999 s 3(d) 1.7.1999 pooled grain inserted by 31/1999 s 3(d) 1.7.1999 property inserted by 31/1999 s 3(d) 1.7.1999 relevant date inserted by 31/1999 s 3(d) 1.7.1999 rights inserted by 31/1999 s 3(d) 1.7.1999 Selection Committee deleted by 31/1999 s 3(e) 1.7.1999 South Australian Department deleted by 31/1999 s 3(e) 1.7.1999 transferred property inserted by 31/1999 s 3(e) 1.7.1999 Victorian Act deleted by 67/2000 s 2(a) 30.11.2000 Victorian Department deleted by 31/1999 s 3(f) 1.7.1999 Victorian Minister deleted by 67/2000 s 2(a) 30.11.2000 s 3(2) substituted by 31/1999 s 3(g) 1.7.1999 deleted by 67/2000 s 2(b) 30.11.2000 s 4 deleted by 31/1999 s 4 1.7.1999 s 5 amended by 6/1998 s 2 2.4.1998 substituted by 31/1999 s 4 1.7.1999 substituted by 67/2000 s 3 30.11.2000 ss 6 and 7 deleted by 67/2000 s 3 30.11.2000 Pt 2 deleted by 31/1999 s 5 1.7.1999 Pt 3 deleted by 31/1999 s 5 1.7.1999 Pt 4 s 33 s 33(1) amended by 31/1999 s 6(a), (b) 1.7.1999 s 33(2) amended by 31/1999 s 6(c) 1.7.1999 s 33(3) amended by 37/1998 s 3(a)--(c) 15.10.1998 amended by 31/1999 s 6(d), (e) 1.7.1999 s 33(4) amended by 37/1998 s 3(d) 15.10.1998 substituted by 31/1999 s 6(f) 1.7.1999 s 33(4a) inserted by 37/1998 s 3(e) 15.10.1998 s 33(5) amended by 37/1998 s 3(f) 15.10.1998 substituted by 31/1999 s 6(f) 1.7.1999 s 33(5a) inserted by 77/1999 s 2 2.12.1999 s 33(6) substituted by 31/1999 s 6(f) 1.7.1999 s 33A inserted by 31/1999 s 7 1.7.1999 s 34 substituted by 31/1999 s 8 1.7.1999 s 35 s 35(1) amended by 31/1999 s 9(a) 1.7.1999 s 35(2) amended by 31/1999 s 9(c) 1.7.1999 s 35(3) amended by 31/1999 s 9(b), (c) 1.7.1999 s 35(4) amended by 31/1999 s 9(b)--(d) 1.7.1999 s 35(5) amended by 31/1999 s 9(b), (c) 1.7.1999 deleted by 77/1999 s 3 2.12.1999 s 36 s 36(1) amended by 31/1999 s 10(a)--(c) 1.7.1999 s 36(2) declared day amended by 31/1999 s 10(a), (d) 1.7.1999 37 s 37(1) amended by 31/1999 s 11(a), (b) 1.7.1999 s 37(2) deleted by 31/1999 s 11(c) 1.7.1999 ss 38 and 39 deleted by 31/1999 s 12 1.7.1999 s 40 deleted by 44/1998 s 4 15.10.1998 s 41 amended by 31/1999 s 13 1.7.1999 Pt 5 amended by 37/1998 ss 4, 5 15.10.1998 deleted by 31/1999 s 14 1.7.1999 Pt 6 deleted by 31/1999 s 14 1.7.1999 Pt 7 deleted by 31/1999 s 14 1.7.1999 Pt 8 deleted by 31/1999 s 14 1.7.1999 Pt 9 deleted by 31/1999 s 14 1.7.1999 Pt 10 ss 69--72 deleted by 31/1999 s 15 1.7.1999 s 73 deleted by 31/1999 s 15 1.7.1999 inserted by 67/2000 s 4 30.11.2000 s 74 s 74(1) amended by 67/2000 s 5(a) 30.11.2000 s 74(2) amended by 31/1999 s 16 1.7.1999 s 74(3) amended by 67/2000 s 5(b) 30.11.2000 Pt 11 substituted by 31/1999 s 17 1.7.1999 s 83 deleted by 67/2000 s 6 30.11.2000 Sch deleted by 31/1999 s 18 1.7.1999 Historical versions Reprint No 1--2.4.1998 Reprint No 2--15.10.1998 Reprint No 3--1.7.1999 Reprint No 4--2.12.1999