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

Statutory Rules 1988 No. 187

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Australian Horticultural Corporation (Apple and Pear Export Control) Regulations

TABLE OF PROVISIONS

Regulation

1. Citation

2. Commencement

3. Interpretation

4. Licences, permits etc.

5. Applications for licences

6. Refusal of licences

7. Applications for permits

8. Refusal of permits

9. Terms and conditions of contracts

10. Price

11. Rates of commission

12. Packaging and labelling

13. Revocation of licences: failure to export

14. Revocation of licences: other reasons

15. Procedure for revocation of licences

16. Review of decisions

17. Annual review of export performance

18. Fees

19. Returns

20. Notices

Statutory Rules 1988 No. 1871

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Australian Horticultural Corporation (Apple and Pear Export Control) Regulations

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, and under section 4 of the Acts Interpretation Act 1901,hereby make the following Regulations under the Australian Horticultural Corporation Act 1987.

Dated 25 July 1988.

N. M. STEPHEN

Governor-General

By His Excellency's Command,

JOHN KERIN

Minister of State for Primary Industries

and Energy

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Citation

1. These Regulations may be cited as the Australian Horticultural Corporation (Apple and Pear Export Control) Regulations.

Commencement

2. These Regulations commence on the date of commencement of Part V of the Australian Horticultural Corporation Act 1987.

Interpretation

3. In these Regulations, unless the contrary intention appears:

"apples" includes chilled apples, waxed apples or apples dipped or sprayed after harvest, but does not include any other processed apple product;

"approved form" means a form approved by the Corporation for general use or for use in a particular case;

"export" means export of apples or pears from Australia;

"former Regulations" means the Apple and Pear (Conditions of Export) Regulations made under the Australian Apple and Pear Corporation Act 1973;

"guaranteed advance contract", in relation to apples or pears, means a contract or arrangement in writing between the owner of the apples or pears and another person under which:

(a) the owner agrees to supply the apples or pears for sale outside Australia by that other person on behalf of the owner on payment of commission by the owner to that other person; and

(b) that other person agrees:

(i) to endeavour to sell the apples or pears in accordance with the contract or arrangement; and

(ii) whether or not the apples or pears are so sold and irrespective of the price received for any such sale— to pay to the owner an advance payment at a rate fixed by the contract or arrangement;

"import" means import into another country of apples or pears exported from Australia;

"licence" means a licence:

(a) granted under regulation 5 of the former Regulations that is a transferred instrument within the meaning of the Australian Horticultural Corporation (Transitional Provisions and Consequential Amendments) Act 1987; or

(b) granted under subregulation 5 (5);

that is in force;

"licensee" means the holder of a licence in force;

"notice" means instrument in writing;

"pears" includes chilled pears or pears dipped or sprayed after harvest, but does not include any other processed pear product;

"permit" means a permit granted under subregulation 7 (3) that is in force;

"port" includes airport;

"the Act" means the Australian Horticultural Corporation Act 1987;

"the Association" means the Australian Apple and Pear Growers' Association.

Licences, permits etc.

4. For the purposes of subsection 117 (1) of the Act, the export of apples or pears by a person is prohibited:

(a) unless a licence, and a permit, to export the apples or pears has been granted to that person; or

(b) unless:

(i) that person is a corporation wholly owned by a licensee; and

(ii) a permit to export the apples or pears has been granted under subregulation 7 (3) to that corporation.

Applications for licences

5. (1) A person may apply to the Corporation in accordance with an approved form for the grant to that person of a licence to export apples or pears.

(2) The form of application for a licence may require the applicant to specify matters to which the Corporation is required by subregulation (4) to have regard in deciding whether to grant the licence.

(3) An application for the grant of a licence for a period commencing on or after 1 January in a calendar year after 1988 shall be lodged with the Corporation before 1 September in the year immediately preceding that calendar year or, with the consent of the Corporation, at any other time.

(4) In deciding whether to grant a licence, the Corporation shall have regard to the following matters:

(a) the soundness of the financial position of the applicant for the licence including the ability of the applicant to provide to the Corporation, in respect of the export of apples or pears, financial guarantees that the Corporation considers to be satisfactory:

(b) the applicant's integrity and reputation in the Australian horticultural, or other, industry for reliability in business dealings;

(c) the knowledge, skill and experience of the applicant, or of the managerial employees directing the applicant's export business, in the export of fruit and vegetables in fresh or chilled form;

(d) the adequacy of the packing and cool storage arrangements available to the applicant to satisfy the requirements of importers in relation to consistency in the quality, flavour, colour and size of apples or pears exported;

(e) the previous participation of the applicant, or the commitment of the applicant to participate, with other traders, or apple and pear industry organisations, in any private sector activities, or Corporation-sponsored export co-ordination activities, undertaken to further the interests of the apple and pear industry;

(f) the number of licences appropriate for the co-ordination of the export of apples or pears from the State from which the apples or pears will be exported by the applicant, having regard to the

domestic and export market situation and any possible adverse effect of the grant of an additional licence on the adequacy of returns to growers;

(g) whether a licence granted to the applicant has been revoked within a period of 3 years before the application for the licence is lodged with the Corporation;

(h) whether the applicant has been convicted within the period referred to in paragraph (g) of an offence against the Act or subregulation 19 (1) or (3);

(i) the written views, if any, of the Association on the application;

(j) any other matters relevant to the export of apples or pears.

(5) The Corporation, having considered an application for a licence, may:

(a) grant the licence, for a future period of not more than 3 years specified in the licence, for export from a port or ports so specified to a port or ports so specified; or

(b) refuse the licence.

(6) In respect of an application lodged with the Corporation before 1 September in a calendar year for the grant of a licence, the Corporation shall, if practicable, grant or refuse to grant the licence before 1 November in that year.

Refusal of licences

6. (1) Where the Corporation decides under subregulation 5 (5) to refuse to grant a licence, the Corporation shall inform the applicant for the licence of the decision, and of the reasons for the decision, by notice given to the applicant as soon as practicable but not later than 30 days after the date of the decision.

(2) A notice given under subregulation (1) to an applicant of a decision under subregulation 5 (5) shall:

(a) include 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

(b) except where subsection 28 (4) of that Act applies—include 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.

(3) A notice given under subregulation (1) to an applicant may be sent by pre-paid ordinary post to the applicant at the applicant's address shown on the application.

(4) The validity of a decision under subregulation 5 (5) shall not be taken to have been affected by a failure to comply with subregulation (2).

Applications for permits

7. (1) A licensee may apply to the Corporation in accordance with an approved form for the grant to that licensee, or to a corporation wholly owned by that licensee, for a permit to export apples or pears to be consigned to one consignee for export by one ship or aircraft.

(2) The form of application for a permit to export may require the applicant to specify matters that, under the Act, these Regulations or any order, concern that export.

(3) The Corporation, having considered an application for a permit, may:

(a) grant the permit;

(b) grant the permit subject to any condition or restriction specified in the permit; or

(c) refuse the permit.

(4) In deciding whether to grant a permit to export apples or pears, the Corporation shall have regard to such matters that concern that export as are specified or referred to in any orders.

(5) Where the Corporation grants a permit to export to a corporation wholly owned by a licensee:

(a) any condition or restriction that would have applied under these Regulations, or an order, in relation to that export if that licensee had been granted the permit applies in relation to that corporation; and

(b) any contravention by that corporation of any such condition or restriction shall be taken to be a contravention of that condition or restriction by that licensee.

Refusal of permits

8. (1) Where the Corporation decides under subregulation 7 (3) to grant a permit subject to a condition or restriction, or to refuse to grant a permit, the Corporation shall inform the applicant for the permit of the decision, and of the reasons for the decision, by notice given to the applicant as soon as practicable but not later than 30 days after the date of the decision.

(2) A notice given under subregulation (1) to an applicant of a decision under subregulation 7 (3) shall:

(a) include 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

(b) except where subsection 28 (4) of that Act applies—include 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.

(3) A notice given under subregulation (1) to an applicant may be sent by pre-paid ordinary post to the applicant at the applicant's address shown on the application.

(4) The validity of a decision under subregulation 7 (3) shall not be taken to have been affected by a failure to comply with subregulation (2).

Terms and conditions of contracts

9. Export is prohibited except under a contract in writing that provides for terms of shipment and payment that are in accordance with terms specified in the permit for that export.

Price

10. (1) The export of any variety of apples or pears (not being apples or pears exported under a guaranteed advance contract) is prohibited:

(a) unless the price at which the apples or pears have been sold; or

(b) where the apples or pears are consigned for sale outside Australia— unless the price at which the apples or pears are to be sold;

is not less than the minimum price (if any) specified in the permit for that export.

(2) The export of any variety of apples or pears under a guaranteed advance contract is prohibited unless the contract specifies a rate of advance payment not less than the minimum rate (if any) specified in the permit for that export.

Rates of commission

11. (1) The export of any variety of apples or pears by a licensee who sells on behalf of the owner of the apples or pears, whether under a guaranteed advance contract or otherwise, is prohibited unless the commission payable to that licensee in respect of the sale of the apples or pears is, or is less than, the maximum rate of commission (if any) specified in the permit for that export.

(2) A maximum rate of commission specified in a permit under subregulation (1) shall be calculated:

(a) as a percentage, so specified, of the sale price of the apples or pears to be exported; or

(b) as an amount, so specified, in respect of a quantity, so specified, of the apples or pears to be exported.

Packaging and labelling

12. The Corporation may specify in a permit to export any variety of apples or pears:

(a) the quality, colour, shape or size characteristics with which the apples or pears shall comply;

(b) the requirements with which the packages, in which the apples or pears are to be exported, shall comply; or

(c) the requirements with which the labelling of the packages, in which the apples or pears are to be exported, shall comply.

Revocation of licences: failure to export

13. (1) In this regulation:

"export", in relation to a licence authorising a licensee to export fruit from a port or ports specified in that licence, means export of fruit from that port or ports;

"fruit" means apples or pears;

"prescribed quantity", in relation to the export of fruit from a port or ports during a period, means the total quantity of fruit exported from that port or those ports during that period.

(2) For the purposes of subregulation (3) each of the following is a prescribed reason:

(a) inadequate availability of export quality fruit for export from the port or ports specified in the licensee's licence;

(b) inadequate transport for the licensee's export requirements;

(c) industrial action affecting the export of fruit by the licensee;

(d) substantial reduction in, or closure of, an export market; or

(e) any other circumstance beyond the control of the licensee.

(3) The Corporation may revoke a licence if the licensee has not, during the period commencing on 1 January in a year and ending on 31 August in that year, either:

(a) exported fruit; or

(b) made arrangements in writing to export fruit;

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

(4) The Corporation may revoke a licence if the licensee has not, during the period commencing on 1 January in a year and ending on 31 August in the immediately succeeding year, exported, or made on or before that 31 August arrangements in writing to export, not less than 5% of the prescribed quantity of fruit for that period.

(5) For the purposes of deciding whether to revoke a licence under subregulation (4), the Corporation may have regard to the level of return received, or to be received, for fruit exported instead of the quantity of fruit exported.

Revocation of licences: other reasons

14. The Corporation may revoke a licence:

(a) if the licensee or a corporation wholly owned by the licensee exports apples or pears and a permit to export the apples or pears has not been granted;

(b) if the licensee exports apples or pears from or to a port other than a port specified in the licence;

(c) if the licensee contravenes a condition or restriction specified in a permit granted to the licensee;

(d) if the licensee fails to pay within 28 days a fee charged under regulation 18 that is payable by the licensee;

(e) if the licensee is convicted of an offence against subregulation 19 (1) or (3); or

(f) if the licensee specifies in the form of application for the licence information that is false or misleading in a material particular.

Procedure for revocation of licences

15. (1) In subregulations (8) and (9), "authorised officer" means an officer of the Corporation authorised in writing by the Corporation to sign a certificate referred to in subregulation (8).

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

(3) Where a licensee is, for a sufficient reason, unable to show cause in accordance with a requirement under subregulation (2) within the period referred to in that subregulation, the Corporation may, on being requested in writing to do so by the licensee, extend that period for a further period determined by the Corporation.

(4) Where the Corporation decides that a licensee has failed to show adequate cause why the licensee's licence should not be revoked and that the licence should be revoked, the Corporation shall, by notice given to the licensee not later than 30 days after the date of the decision, revoke the licence and inform the licensee of the reasons for the revocation.

(5) A notice given to an applicant of a decision under subregulation (4) shall:

(a) include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975yan 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

(b) except where subsection 28 (4) of that Act applies—include 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.

(6) A notice given under subregulation (2) or (4) to an applicant may be sent by pre-paid ordinary post to the applicant at the applicant's address shown on the application.

(7) The validity of a decision under subregulation (4) shall not be taken to have been affected by a failure to comply with subregulation (5).

(8) A certificate signed by an authorised officer setting out the prescribed quantity (within the meaning of regulation 13) of apples or pears exported from a port or ports during any period is sufficient evidence of the matters set out in the certificate unless the contrary is proved.

(9) A certificate referred to in subregulation (8) that purports to be signed by an authorised officer shall be taken to have been so signed unless the contrary is proved.

Review of decisions

16. Application may be made to the Administrative Appeals Tribunal for the review of:

(a) a decision by the Corporation under subregulation 5 (5) to grant a licence for a period shorter than the period requested by the applicant;

(b) a decision by the Corporation under subregulation 5 (5) to grant a licence for export from or to a port or ports other than the port or ports requested by the applicant;

(c) a decision by the Corporation under subregulation 5 (5) to refuse to grant a licence;

(d) a decision by the Corporation under subregulation 7 (3) to grant a permit subject to a condition or restriction;

(e) a decision by the Corporation under subregulation 7 (3) to refuse to grant a permit; or

(f) a decision by the Corporation under subregulation 15 (4) to revoke a licence.

Annual review of export performance

17. The Corporation shall conduct an annual review of the export performance of each licensee.

Fees

18. The Corporation may charge such fees as it considers necessary to enable it to recover costs that it incurs in controlling the export of apples or pears.

Returns

19. (1) Each person who has been a licensee at any time in a calendar year after 1987 shall not, without reasonable excuse, fail to lodge with the Corporation, before the next succeeding 31 January, a return in writing setting out, in respect of each variety of apples, and each variety of pears, exported by that person in that calendar year:

(a) the total quantity exported;

(b) the value of that total quantity; and

(c) the consequential average price per kilogram of that total quantity.

Penalty:

(a) if the offender is a natural person—a fine not exceeding $1,000; or

(b) if the offender is a body corporate—a fine not exceeding $5,000.

(2) The Corporation may, by notice given to a person who has been a licensee or holder of a permit at any time during the 2 years before the date of the notice, require that person to lodge with the Corporation before a day specified in the notice, being a day not less than 28 days after the date of the notice, returns or information required by the Corporation for the purposes of the Act.

(3) A person to whom a notice is given under subregulation (2) shall not, without reasonable excuse, fail to give effect to the requirement of the notice.

Penalty:

(a) if the offender is a natural person—a fine not exceeding $1,000; or

(b) if the offender is a body corporate—a fine not exceeding $5,000.

Notices

20. (1) A notice required under these Regulations to be given by the Corporation to a licensee may be sent by pre-paid ordinary post to the licensee at the licensee's address shown on the licence or, on request in writing to the Corporation by the licensee, at an address for service provided by the licensee.

(2) A notice required under these Regulations to be given by the Corporation to a person other than a licensee may be sent by pre-paid ordinary post to the person at the person's business, or residential, address last known to the Corporation or, on request in writing to the Corporation by the person, at an address for service provided by the person.

NOTE

1. Notified in the Commonwealth of Australia Gazette