Australian Horticultural Corporation (Apple and Pear Export Control) Regulations (Amendment) (Cth)

Statutory Rules 1989 No. 341

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Australian Horticultural Corporation (Apple and Pear Export Control) Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Australian Horticultural Corporation Act 1987.

Dated 13 March 1989.

BILL HAYDEN

Governor-General

By His Excellency's Command,

JOHN KERIN

Minister of State for Primary Industries

and Energy

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Principal Regulations

1. In these Regulations, "Principal Regulations" means the Australian Horticultural Corporation (Apple and Pear Export Control) Regulations.

Interpretation

2. Regulation 3 of the Principal Regulations is amended by omitting "7 (3)" from the definition of "permit" and substituting "7 (1)".

Licences, permits etc.

3. Regulation 4 of the Principal Regulations is amended:

(a) by omitting from paragraphs (a) and (b) "the" (wherever occurring);

(b) by omitting from subparagraph (b) (ii) "7 (3)" and substituting "7(1)".

Applications for licences

4. Regulation 5 of the Principal Regulations is amended:

(a) by omitting paragraph (4) (f);

(b) by omitting paragraphs (5) (a) and (b) and substituting:

"(a) grant the licence (whether or not subject to compliance by the licensee with conditions and restrictions specified in the licence) for a future period that does not exceed 3 years specified in the licence; or

(b) refuse the licence.";

(c) by adding at the end the following subregulation:

"(7) The Corporation shall inform an applicant for a licence, of its decision to grant or refuse a licence, by notice in writing not later than 14 days following the making of the decision.".

Refusal or restriction of licences

5. Regulation 6 of the Principal Regulations is amended:

(a) by omitting subregulations (1) and (2) and substituting the following subregulation:

"(1) Where the Corporation decides under subregulation 5 (5) to grant a licence subject to a condition or restriction, or to refuse a licence, the notice referred to in subregulation 5 (7) shall include:

(a) the reasons for the decision;

(b) a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975,an application may be made to the Administrative Appeals Tribunal, within the period of 60 days after the date on which the notice was sent to the applicant, for review of the decision; and

(c) except where subsection 28 (4) of that Act applies—a statement to the effect that a person whose interests are affected by the decision may request a statement under section 28 of that Act.";

(b) by omitting from subregulation (3) "subregulation (1)" and substituting "subregulation 5 (7)";

(c) by omitting from subregulation (4) "subregulation (2)" and substituting "subregulation (1)".

6. Regulation 7 of the Principal Regulations is repealed and the following regulation substituted:

Grant of permits

"7. (1) Subject to subregulation (2), before 1 December of the calendar year immediately preceding each calendar year during which a licence will be in force, the Corporation shall:

(a) grant a permit to export (whether or not subject to compliance by the permit-holder with conditions and restrictions specified in the permit); or

(b) refuse a permit to export;

to a licensee or, following application in an approved form and in accordance with subregulation (5), to a corporation wholly owned by a licensee.

"(2) Where, by reason of the date of grant of a licence or the date of lodgment of an application for grant of a permit to a corporation wholly owned by a licensee, it is not practicable for the Corporation to comply with subregulation (1), the Corporation shall, as soon as practicable, but not later than 30 days after the date of grant of licence or date of lodgment, grant or refuse a permit in accordance with that subregulation, as the case requires.

"(3) The Corporation shall inform a licensee or, in the case of an application for a permit, the applicant, of its decision to grant or refuse a permit, by notice in writing not later than 14 days following the making of the decision.

"(4) A permit referred to in paragraph (1) (a) shall be granted for all or part of a calendar year, but not extending beyond the date of expiry of the licence.

"(5) An application for the grant of a permit to a corporation wholly owned by a licensee shall be lodged with the Corporation before 1 November in the calendar year immediately preceding the calendar year to which the application relates or, with the consent of the Corporation, at any other time.

"(6) In deciding whether to grant a permit, the Corporation shall have regard to:

(a) such matters that concern exports under such permits as are specified or referred to in any orders; and

(b) in the case of a person who has previously exported apples or pears:

(i) any contravention of the regulations by that person;

(ii) any contravention of a condition or restriction to be complied with by that person, subject to which a previous permit was issued to that person; or

(iii) any failure by that person to export, or to make arrangements in writing to export, during the relevant period, not less than 5% of the prescribed quantity referred to in regulation 13.".

Refusal or restriction of permits

7. Regulation 8 of the Principal Regulations is amended:

(a) by omitting subregulations (1) and (2) and substituting the following subregulation:

 

"(1) Where the Corporation decides under subregulation 7(1) to grant a permit subject to a condition or restriction, or to refuse a permit, the notice referred to in subregulation 7 (3) shall include:

(a) the reasons for the decision;

(b) a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975,an application may be made to the Administrative Appeals Tribunal, within the period of 60 days after the date on which the notice was sent to the applicant, for review of the decision; and

(c) except where subsection 28 (4) of that Act applies—a statement to the effect that a person whose interests are affected by the decision may request a statement under section 28 of that Act.";

(b) by omitting from subregulation (3) "subregulation (1)" and substituting "subregulation 7 (3)";

(c) by omitting from subregulation (4) "7 (3)" and substituting "7 (1)";

(d) by omitting from subregulation (4) "subregulation (2)" and substituting "subregulation (1)".

Repeal of regulation 10

8. Regulation 10 of the Principal Regulations is repealed.

Rates of commission

9. Regulation 11 of the Principal Regulations is amended:

(a) by omitting from subregulation (1) all the words after "sale of the apples or pears" and substituting the following word and paragraphs:

"is:

(a) not more than the maximum rate of commission; and

(b) not less than the minimum rate of commission;

(if any) specified in the permit in relation to such an export.";

(b) by inserting in subregulation (2) "or a minimum rate of commission" after "commission".

10. After regulation 11 of the Principal Regulations the following regulations are inserted:

Purchasers to be approved

"11 A. The Corporation may specify in a permit a restriction requiring the purchaser of exports to a specified country to be a person approved by the Corporation.

Composition of exports

"11B. The Corporation may specify in a permit a restriction requiring exports to a specified country to be:

(a) of a particular kind of apple or pear; or

(b) of a particular quality, colour, shape or size.".

Packaging and labelling

11. Regulation 12 of the Principal Regulations is amended:

(a) by omitting paragraph (a);

(b) by omitting from paragraph (b) "or";

(c) by inserting after paragraph (b) the following paragraph:

"(ba) the number, the maximum number or the minimum number of apples or pears to be contained in a specified kind of package, with which packages of that kind shall comply; or".

Revocation or suspension of licences: failure to export

12. Regulation 13 of the Principal Regulations is amended:

(a) by inserting in subregulation (1) the following definition:

"'licensee' includes a corporation wholly owned by a licensee;";

(b) by omitting from paragraph (2) (a) "from the port or ports specified in the licensee's licence";

(c) by omitting subregulation (3) and substituting the following subregulations:

"(3) It is a condition of a licence that, during the period commencing on 1 January in a calendar year and ending on 31 August in that year, the licensee:

(a) export fruit; or

(b) make arrangements in writing to export fruit;

unless the licensee is unable to do so for a prescribed reason.

"(3a) The Corporation may revoke or suspend a licence for the contravention by the licensee of a condition specified in subregulation (3).".

13. Regulation 14 of the Principal Regulations is repealed and the following regulation substituted:

Revocation and suspension of licences: other reasons

"14. (1) In this regulation:

'fruit' means apples or pears;

'licensee' includes a corporation wholly owned by a licensee.

"(2) It is a condition of a licence that the licensee shall not:

(a) export fruit in respect of which a permit has not been granted;

(b) contravene a condition or restriction specified in the licence or in a permit;

(c) fail to pay within 28 days a fee under regulation 18 that is payable by the licensee;

(d) fail, without reasonable excuse, to comply with subregulation 19 (1), (1C) or (3); or

(e) provide information that is false or misleading in a material particular:

(i) in the form of application for the licence; or

(ii) in a return required to be lodged with the Corporation under regulation 19.

"(3) The Corporation may revoke or suspend a licence for the contravention by the licensee of a condition specified in subregulation (2).".

14. After regulation 14 of the Principal Regulations the following regulation is inserted:

Revocation or suspension of permits

"14a. (1) It is a condition of a permit that:

(a) the permit-holder; or

(b) where the permit-holder is a corporation wholly owned by a licensee, the licensee;

be the holder of a licence in force.

"(2) The Corporation:

(a) may revoke or suspend a permit for a contravention by the permit-holder of a condition or restriction specified:

(i) in the permit; or

(ii) in the licence held by the permit-holder or, where the permit-holder is a corporation wholly owned by a licensee, held by the licensee;

(b) shall revoke a permit for a contravention of the condition specified in subregulation (1) arising from the revocation under these Regulations of a licence; and

(c) shall suspend a permit for a contravention of the condition specified in subregulation (1) arising from the suspension under these Regulations of a licence.

"(3) The period of suspension of a permit shall not exceed:

(a) in respect of a suspension referred to in paragraph (2) (a)—the period during which the contravention continues, or 3 months, whichever is the lesser; or

(b) in respect of a suspension referred to in paragraph (2) (c)—the period during which the licence referred to in that paragraph is suspended.".

Procedure for revocation or suspension of licences and permits

15. Regulation 15 of the Principal Regulations is amended:

(a) by omitting subregulation (2) and substituting the following subregulation:

"(2) Where the Corporation is of the opinion that a licence may be revoked or suspended under regulation 13 or 14, or a permit revoked or suspended under regulation 14A, the Corporation shall, by notice given to the licensee or the permit-holder, as appropriate, inform that person of that opinion and of the reasons for that opinion and require that person to show cause in writing, not later than 21 days after the date of giving that notice, why the licence or permit should not be revoked or suspended.";

(b) by inserting in subregulation (3) "or permit-holder" after "licensee" (wherever occurring);

(c) by inserting in subregulation (4):

(i) "or suspended" after "revoked" (wherever occurring);

(ii) "or suspend" after "revoke";

(iii) "or suspension" after "revocation";

(d) by inserting after subregulation (4) the following subregulation:

"(4A) Where the Corporation decides that a permit-holder has failed to show adequate cause why the permit-holder's permit should not be revoked or suspended and that the permit should be revoked or suspended, the Corporation shall, by notice given to the permit-holder not later than 30 days after the date of the decision, revoke or suspend the permit and inform the permit-holder of the reasons for the revocation or suspension.";

(e) by inserting in subregulation (5) "or (4A)" after "subregulation (4)";

(f) by omitting from subregulation (6) "or (4)" and substituting ", (4) or (4A)";

(g) by inserting in subregulation (7) "or (4A)" after "subregulation (4)".

Review of decisions

16. Regulation 16 of the Principal Regulations is amended:

(a) by omitting paragraph (b) and substituting the following paragraph:

"(b) a decision by the Corporation under subregulation 5 (5) to grant a licence subject to a condition or restriction;";

(b) by omitting from paragraph (d) "7 (3)" and substituting "7 (1)";

(c) by omitting from paragraph (e):

(i) "7 (3)" and substituting "7 (1)";

(ii) "or";

(d) by inserting in paragraph (f) "or suspend" after "revoke";

(e) by adding at the end the following word and paragraph:

"; or (g) a decision by the Corporation under subregulation 15 (4A) to revoke or suspend a permit.".

 

Returns

17. Regulation 19 of the Principal Regulations is amended:

(a) by omitting the penalty at the foot of subregulation (1);

(b) by inserting after subregulation (1) the following subregulations:

"(1A) The Corporation may, by notice given to a person who exports apples or pears, require that person to lodge with the Corporation before the last day of each month, a return in writing setting out, in respect of each consignment during the immediately preceding month and in respect of each purchaser of such consignment:

(a) the total quantity of each variety of apples and pears;

(b) the total value of each variety of apples and pears;

(c) the port of export;

(d) the country of destination of the consignment and the name of the purchaser;

(e) the name or other identification of the ship or aircraft by means of which the consignment was exported;

(f) the date of the consignment;

(g) the rate of commission paid to the licensee or permit-holder; and

(h) where there is specified in the permit to export a condition or restriction specified in regulation 11Bor 12, information sufficient to enable the Corporation to ascertain whether the permit-holder has complied with the condition or restriction.

"(1B) Where parts of a consignment referred to in subregulation (1A)are transported by different ships or aircraft, a return referred to in that subregulation shall be lodged in respect of the part transported by each such ship or aircraft.

"(1C) A person to whom a notice is given under subregulation (1A)shall not, without reasonable excuse, fail to give effect to the requirement of the notice.";

(c) by omitting the penalty at the foot of subregulation (3).

Transitional

18. Notwithstanding the amendments of the Principal Regulations by regulation 14 of these Regulations, the Principal Regulations as in force immediately before the commencement of these Regulations continue to apply in relation to a decision of the Corporation referred to in paragraph 16(b) made before the commencement of these Regulations as if the amendments of the Principal Regulations by regulation 14 of these Regulations had not been made.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 14 March 1989.

2. Statutory Rules 1988 No. 187.