Apple and Pear
Export Underwriting Act 1981
No. 14 of 1981
An
Act relating to the underwriting of returns from the export from Australia of
apples and pears
[Assented to 25 March 1981]
BE IT ENACTED by the Queen, and the
Senate and the House of Representatives of the Commonwealth of Australia, as
follows:
Short title
1.This
Act may be cited as the Apple and Pear
Export Underwriting Act 1981.
Commencement
2.This
Act shall come into operation on the day on which it receives the Royal Assent.
Interpretation
3.(1) In this Act, unless the
contrary intention appears—
“Audit Act” means the Audit Act 1901;
“authorized person” means a
person who is, by virtue of an appointment under section 20, an authorized
person for the purposes of the provision in which the expression occurs;
“average export return
rate”, in relation to a relevant season in respect of a kind of fruit, means
the amount per reputed box determined by the Minister under section 6 to be the
average export return rate for that season in respect of that kind of fruit;
“container”, in relation to
fruit, means the receptacle in which the fruit is enclosed on export, but does
not include a receptacle that contains one or more smaller receptacles;
“Corporation” means the
Australian Apple and Pear Corporation established by the Australian Apple and Pear Corporation Act 1973;
“export” means export from
Australia;
“exported fruit” means—
(a) fruit that, having been
sold in Australia for delivery to a place outside Australia or for delivery to
a ship or aircraft for export, has been exported in pursuance of the contract
of sale; or
(b) fruit (not being fruit
referred to in paragraph (a) ) that has been exported for the purpose of sale
outside Australia and has been so sold before the end of the season in which it
was so exported;
“export sale”, in relation
to exported fruit, means the sale of that fruit by virtue of which it became,
or became on export, exported fruit;
“fruit” means apples and
pears;
“guaranteed minimum export
return rate”, in relation to a relevant season in respect of a kind of fruit,
means the amount per reputed box determined by the Minister under section 5 to
be the guaranteed minimum export return rate for that season in respect of that
kind of fruit;
“relevant season” means the
season that commenced on 1 October 1980, and each of the next 4 succeeding
seasons;
“reputed box” means 18
kilograms;
“season” means a period of
12 months commencing on 1 October in any year;
“underwriting payment”
means an underwriting payment under section 8.
(2)In
this Act, a reference to a kind of fruit shall be read as a reference to apples
only or pears only.
(3)For
the purposes of this Act—
(a) a container that contains
not more than five-eighths of a reputed box of fruit shall be deemed to contain
one-half of a reputed box of the fruit;
(b) a container that contains
more than five-eighths, but not more than seven-eighths, of a reputed box of
fruit shall be deemed to contain three-quarters of a reputed box of the fruit;
and
(c) a container that contains
more than seven-eighths of a reputed box of fruit but not more than one and
one-quarter reputed boxes of fruit shall be deemed to contain one reputed box
of the fruit.
Act to bind Crown
4. (1) This Act binds the Crown in
right of each of the States and of the Northern Territory, but does not bind
the Crown in right of the Commonwealth.
(2) Nothing in this Act shall be
deemed to subject the Crown in right of a State or of the Northern Territory,
or any person in the employment of the Crown in right of a State or of the
Northern Territory, to liability to be prosecuted for an offence.
Guaranteed minimum export return rates for
apples and pears
5.(1) As soon as practicable
after the commencement of this Act, the Minister shall, for the purposes of
this Act, determine, in accordance with this section, in respect of each kind
of fruit, the amount per reputed box that is the guaranteed minimum export return
rate for the relevant season that commenced on 1 October 1980 in respect of
that kind of fruit.
(2)As
soon as practicable after the end of a relevant season (other than the season
commencing on 1 October 1984), the Minister shall, for the purposes of this
Act, determine, in accordance with this section, in respect of each kind of
fruit, the amount per reputed box that is the guaranteed minimum export return
rate for the next succeeding relevant season in respect of that kind of fruit.
(3) The amount per reputed box
that is the guaranteed minimum export return rate for a relevant season in
respect of a kind of fruit shall be determined by—
(a) ascertaining the aggregate
of the amounts of the net proceeds of export sales of exported fruit of that
kind exported during the 4 seasons immediately preceding that season;
(b) dividing the amount so
ascertained by a number equal to the number of reputed boxes of exported fruit
of that kind exported during those 4 seasons; and
(c) deducting from the amount
calculated in accordance with paragraph (b) an amount equal to 5% of the amount
so calculated.
(4)Where
the Minister has determined the guaranteed minimum export return rate for a
relevant season in respect of a kind of fruit, he shall publish in the Gazette a notice specifying the rate so
determined.
Average export return rate
6.(1) As soon as practicable
after the end of a relevant season, the Minister shall, for the purposes of
this Act, determine, in respect of each kind of fruit, the amount per reputed
box that is the average export return rate for that season in respect of that
kind of fruit by—
(a) ascertaining the aggregate
of the amounts of the net proceeds of export sales of exported fruit of that
kind exported during that season; and
(b) dividing the amount so
ascertained by a number equal to the number of reputed boxes of exported fruit
of that kind exported during that season.
(2) Where the Minister has
determined the average export return rate for a relevant season in respect of a
kind of fruit, he shall publish in the Gazette
a notice specifying the rate so determined.
Amount of net proceeds of export sale
7.(1) For the purposes of
paragraph 5 (3) (a) and 6 (1) (a), the amount of the net proceeds of an export
sale of exported fruit shall be taken to be—
(a) in the case of fruit
exported in pursuance of a guaranteed advance contract—the amount, or the
aggregate of the amounts, payable, under the contract, to the owner of the
fruit so exported in respect of that fruit; or
(b) in any other case—the
amount of the proceeds of that sale,
less an
amount equal to the amount of any costs, charges or expenses that, in the
opinion of the Minister, were necessarily incurred in respect of that sale by
reason of the carriage of the fruit from the port or airport of export to a
place outside Australia, including—
(c) the insuring of the fruit
in respect of any period after it was placed on board a ship or aircraft for
export; and
(d) any moving, handling or
processing of, or any dealing in, the fruit after it was placed on board a ship
or aircraft for export.
(2) In this section,
“guaranteed advance contract”, in relation to fruit, means a contract or
arrangement between the owner of the fruit and another person under which—
(a) the owner agrees to supply
the fruit for sale outside Australia by the other person on commission on
behalf of the owner; and
(b) the other person agrees—
(i) to endeavour to sell the
fruit in accordance with the contract or arrangement; and
(ii) whether or not he does so
sell the fruit and irrespective of the price received on any such sale of the
fruit, to pay to the owner an advance payment in respect of the fruit at a rate
fixed by the contract or arrangement.
Underwriting payments
8.(1) Where the average export
return rate for a relevant season in respect of a kind of fruit is less than
the guaranteed minimum export return rate for that season in respect of that
kind of fruit, an underwriting payment is payable in respect of exported fruit
of that kind exported during that season.
(2)An
underwriting payment in respect of fruit shall be calculated separately in
respect of the fruit contained in each container.
(3) The rate of an underwriting
payment in respect of exported fruit exported during a relevant season is an
amount per reputed box, or part of a reputed box, in each container of the
fruit equal to the amount by which the amount per reputed box that constitutes
the average export return rate for that season in respect of the kind of fruit
in which the exported fruit is included is less than the amount per reputed box
that constitutes the guaranteed minimum export return rate for that season in
respect of that kind of fruit.
(4) Where a container of fruit
contains one-half or three-quarters of a reputed box of the fruit, the
underwriting payment in respect of that fruit is an amount equal to one-half or
three-quarters, as the case may be, of the amount forming part of the rate of
underwriting payment that would, but for this sub-section, be applicable in
relation to the fruit under this section.
To whom underwriting payments payable
9.An
underwriting payment in respect of exported fruit is payable to—
(a) where the fruit was
exported in pursuance of a sale of the kind referred to in paragraph (a) of the
definition of “exported fruit” in sub-section 3 (1)—the person who was the
owner of the fruit immediately before that sale; or
(b) in any other case—the
person who was the owner of the fruit at the time of export.
Assignment of underwriting payment to be
void
10.An
assignment of an underwriting payment is void as against the Commonwealth.
Payment of underwriting payments to the
Corporation for distribution
11.(1) The Minister may, on behalf
of the Commonwealth, enter into an arrangement with the Corporation to perform
the function of making underwriting payments on behalf of the Commonwealth and,
while such an arrangement is in force, the Corporation may do all things that
are necessary or convenient to be done by it in pursuance of the arrangement.
(2) Without prejudice to the
generality of sub-section (1), an arrangement under that sub-section may
provide for—
(a) the keeping by the
Corporation of accounts and records in relation to underwriting payments
received and distributed by the Corporation;
(b) the inspection and audit of
the accounts and records referred to in paragraph (a); and
(c) the furnishing by the
Corporation to the Minister of information with respect to anything done by the
Corporation in pursuance of the arrangement.
(3) An underwriting payment to
which an arrangement under this section relates may be paid to the Corporation
for distribution in accordance with the arrangement.
(4)The
Audit Act does not apply in relation to amounts of underwriting payments in the
hands of the Corporation.
(5)Moneys
paid to the Corporation under this section shall, until they are distributed in
accordance with the arrangement under which they are paid, be deemed to be
moneys held in trust for the Commonwealth.
Payments to exporter as agent
12.(1) For the purpose of making
underwriting payments in respect of fruit, that was exported by a person (in
this section referred to as the “exporter”) on behalf of other persons who are
entitled to those payments, the Commonwealth or the Corporation may arrange for
the exporter to pay, as agent of the Commonwealth or of the Corporation, as the
case may be, to each of those other persons the underwriting payment payable to
him, and payment may be made by the Commonwealth or by the Corporation, as the
case may be, to the exporter in accordance with the arrangement.
(2)The
Audit Act does not apply in relation to amounts of underwriting payments in the
hands of an exporter.
(3)Moneys
paid to an exporter under this section shall, until they are distributed in
accordance with the arrangement under which they are paid, be deemed to be
moneys held in trust for the Commonwealth.
(4)Notwithstanding
section 10, where—
(a) an arrangement has been
made between the Commonwealth or the Corporation and an exporter in accordance
with sub-section (1);
(b) moneys are paid, in
accordance with the arrangement, by the Commonwealth or by the Corporation, as
the case may be, to the exporter as an underwriting payment that is payable to
a person in respect of any fruit; and
(c) the person is indebted to
the exporter by reason of a loan or advance made to the person by the exporter
and the person has authorized the exporter to retain moneys payable by the
exporter to the person in respect of the fruit concerned in or towards the
discharge of that indebtedness,
the exporter
may apply the whole or a part of the moneys so paid by the Commonwealth or by
the Corporation, as the case may be, to the exporter in or towards the
discharge of that indebtedness and, where the exporter so applies an amount,
the amount so applied shall, for the purposes of this Act, be deemed to have
been received by the person from the exporter as an underwriting payment in
respect of the fruit concerned.
Appropriation
13.Underwriting
payments are payable out of the Consolidated Revenue Fund, which is
appropriated accordingly.
Directions by Minister with respect to
overseas price of fruit
14.Where
regulations in force under the Australian
Apple and Pear Corporation Act 1973 authorize the Corporation, or a person
authorized by the Corporation, to determine the price at which fruit may be
sold overseas, the Corporation—
(a) shall comply with any
direction of the Minister with respect to the making of any such determination
in respect of fruit picked during a relevant season; and
(b) if such a determination
is made, shall, except as otherwise approved by the Minister, take all action
that the Corporation can lawfully take with a view to ensuring that fruit to
which the determination relates is not sold for export at a price less than the
price applicable under the determination.
Furnishing of returns
15.(1) An authorized person may,
by notice in writing given, or sent by post, to a person, require the person to
furnish, within such time as is specified in the notice, such return or
information in relation to matters relevant to the operation of this Act as is
specified in the notice.
(2)A
person shall not, without reasonable excuse, fail or neglect duly to furnish a
return or information that he is required to furnish by virtue of anotice given, or sent by post, to him
under sub-section (1).
(3) A person is not excused
from furnishing a return or information that he is required to furnish by
virtue of a notice given, or sent by post, to him under sub-section (1) on the
ground that the return or information might tend to incriminate him or make him
liable to a penalty, but any return or information so furnished is not
admissible in evidence against him in proceedings other than proceedings for an
offence against sub-section (4).
(4) A person shall not furnish
a return or information that, to his knowledge, is false or misleading in a
material particular.
Penalty: $1,000.
Offences in relation to underwriting
payments
16. (1) A person who receives, in
respect of an underwriting payment, a payment that, to his knowledge, is not
payable to him, or exceeds the amount payable to him, shall, as soon as
practicable, inform—
(a) where the payment was made
by the Corporation—the Corporation; or
(b) in any other case—the
Department that deals with matters arising under this Act,
accordingly.
Penalty:
$2,000 or imprisonment for 12 months, or both.
(2)Where
a person is convicted of an offence under sub-section (1), the court may, in
addition to imposing a penalty under that sub-section, order the person to
repay to the Commonwealth the amount of the payment in respect of an
underwriting payment or the amount by which the payment in respect of an
underwriting payment exceeded the amount properly payable, as the case may be.
(3) Where a court has made an
order under sub-section (2), a certificate under the hand of the clerk or other
appropriate officer of the court specifying the amount ordered to be repaid and
the person by whom the amount is payable may be filed in a court having civil
jurisdiction to the extent of that amount and is thereupon enforceable in all
respects as a final judgment of the last-mentioned court.
Overpayments
17.Where a person has
received, in respect of an underwriting payment, a payment that was not payable
to him or exceeds the amount that was payable to him, the amount of the
payment, or of the excess, as the case may be, if not otherwise recovered, may
be recovered by the Commonwealth from the person, as a debt due to the
Commonwealth, by action in a court of competent jurisdiction.
Exporter to keep proper books and
accounts, &c.
18. (1) A person who exports fruit
shall—
(a) maintain, in respect of
each relevant season, proper books and accounts in respect of his operations,
receipts and expenditure in relation to the export of fruit picked during that
season, and enter promptly in those books and accounts full and correct particulars
of all such operations, receipts and expenditure;
(b) retain those books and
accounts for a period of 3 years after the end of that season; and
(c) upon demand by an
authorized person at any time during that season or within the period of 3
years referred to in paragraph (b), produce to the authorized person all or any
of those books or accounts.
Penalty:
$1,000.
(2) A prosecution for an
offence against paragraph (1) (a) may be commenced at any time within 3 years
after the commission of the offence.
Access to premises
19. (1) An authorized person may,
with the consent of the occupier of any premises, enter the premises for the
purpose of exercising the functions of an authorized person under this section.
(2)Where
an authorized person is of the opinion that there is reasonable ground for
believing that there are on any premises books, documents or other papers
relating to the export, the sale for export or the sale after export of fruit
picked during a relevant season, the authorized person may make application to
a Justice of the Peace for a warrant authorizing the authorized person to enter
the premises for the purpose of exercising the functions of an authorized
person under this section.
(3)If,
on an application under sub-section (2), the Justice of the Peace is satisfied
by information on oath or affirmation—
(a) that there is reasonable
ground for believing that there are on the premises any books, documents or
papers referred to in sub-section (2); and
(b) that the issue of the
warrant is reasonably required for the purposes of this Act,
the Justice
of the Peace may grant a warrant authorizing the authorized person, with such
assistance as he thinks necessary, to enter the premises during such hours of
the day or hight as the warrant specifies or, if the warrant so specifies,
at any time,
if necessary by force, for the purpose of exercising the functions of an
authorized person under this section.
(4)A
warrant under sub-section (3) shall specify a date after which the warrant
ceases to have effect.
(5)Where
an authorized person has entered any premises in pursuance of sub-section (1)
or in pursuance of a warrant under sub-section (3), he may exercise the
functions of an authorized person under this section.
(6)The
functions of an authorized person under this section are to search for,
inspect, take extracts from and make copies of books, documents or papers
referred to in sub-section (2).
(7)In
this section, “occupier”, in relation to premises, includes the person in
charge of the premises.
Appointment of authorized persons
20.The
Minister may, by writing signed by him, appoint a person, or persons included
in a class of persons, to be an authorized person, or authorized persons, as
the case may be, for the purposes of a specified provision of this Act.
Regulations
21.The
Governor-General may make regulations, not inconsistent with this Act,
prescribing all matters that are required or permitted by this Act to be
prescribed, or are necessary or convenient to be prescribed, for carrying out
or giving effect to this Act and, in particular—