Australian Horticultural Corporation (Export Control) Regulations (Amendment) (Cth)
I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council, make the following Regulations under the
Dated 1991.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
SIMON CREAN
Minister of State for Primary Industries and Energy
1.1 These Regulations commence on 1 January 1992.
2.1 The Australian Horticultural Corporation (Export Control) Regulations are amended as set out in these Regulations.
3.1 Paragraph 4 (a):
Omit “applies”, substitute “apples”.
4.1 Paragraph 5 (a):
Omit the paragraph, substitute:
“(a) is a licensee; and”.
5.1 Omit the regulation, substitute:
“6. (1) An individual, a partnership or a corporation may apply for a licence.
“(2) The applicant must use the approved form.
“(3) The Corporation may require the applicant to have the applicant’s financial standing assessed by an approved credit assessor.
“(4) If the Corporation, or an approved credit assessor who assesses the applicant’s financial standing, asks the applicant to give it information about the applicant’s financial standing, or a statement of the applicant’s assets and liabilities, for the purpose of assessing the application, the applicant must give the information or statement to the Corporation or the assessor.”.
6.1 Omit the regulation, substitute:
“7. (1) The Corporation must:
(a) if an applicant is eligible to be granted a licence—grant a licence to the applicant; or
(b) if the applicant is ineligible to be granted a licence—refuse to grant the licence.
“(2) An applicant is ineligible to be granted a licence if:
(a) the Corporation requires the applicant to have the applicant’s financial standing assessed by an approved credit assessor; and
(b) the applicant has not had the applicant’s financial standing assessed.
“(3) An applicant is ineligible to be granted a licence if:
(a) the applicant has not been given a financial rating under subregulation 9 (2); or
(b) the applicant has been refused a financial rating under subregulation 9 (3).
“(4) The Corporation may grant a licence to an applicant who is ineligible to be granted a licence under this regulation or regulation 7a, 7b or 7c if:
(a) the matter by reason of which the applicant is ineligible to be granted the licence was caused by circumstances beyond the applicant’s control; and
(b) the applicant took reasonable precautions to prevent the existence of the matter.
“(5) A licence must set out the kinds of horticultural product for which it is issued.
“(6) The Corporation must, if practicable, grant or refuse to grant a licence within 56 days after the day on which the application is made.
“(7) If the Corporation refuses to grant a licence, it must give the applicant a notice that includes:
(a) the reasons for its decision; and
(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 for review of the decision; and(c) except where subsection 28 (4) of the
Administrative Appeals Tribunal Act 1975 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.
“(8) The validity of a refusal to grant a licence is not affected by a failure to comply with subregulation (7).
“7a. An individual is ineligible to be granted a licence if he or she:
(a) was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at his or her request, less than 5 years before the day on which the application is made; or
(b) was a partner in a partnership that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the partnership’s request:
(i) while he or she was a partner; and
(ii) less than 5 years before the day on which the application is made; or
(c) was a partner in a partnership that:
(i) was the holder of a licence, under the Regulations or the repealed Regulations; and
(ii) entered into a prescribed financial arrangement:
(A) while he or she was a partner; and
(B) less than 5 years before the day on which the application is made; or
(d) was a director of, or a shareholder who held a controlling interest in, a corporation that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the corporation’s request:
(i) while he or she was the director or the shareholder who held a controlling interest; and
(ii) less than 5 years before the day on which the application is made; or
(e) was a director of, or a shareholder who held a controlling interest in, a corporation that:
(i) was the holder of a licence, under the Regulations or the repealed Regulations; and
(ii) entered into a prescribed financial arrangement:
(A) while he or she was the director or the shareholder who held a controlling interest; and
(B) less than 5 years before the day on which the application is made; or
(f) entered, into a prescribed financial arrangement, unless the arrangement was discharged, completed or terminated more than 5 years before the day on which the application is made; or
(g) was convicted of a prescribed offence not more than 5 years before the day on which the application is made.
“7b. A partnership is ineligible to be granted a licence if a partner:
(a) was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at his or her request, less than 5 years before the day on which the application is made; or
(b) was a partner in a partnership that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the partnership’s request:
(i) while he or she or it was a partner; and
(ii) less than 5 years before the day on which the application is made; or
(c) was a partner in a partnership that:
(i) was the holder of a licence, under the Regulations or the repealed Regulations and
(ii) entered into a prescribed financial arrangement:
(A) while he or she or it was a partner; and
(B) less than 5 years before the day on which the application is made; or
(d) is an individual who was the director of, or a shareholder who held a controlling interest in, a corporation that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the corporation’s request:
(i) while he or she was the director or the shareholder who held a controlling interest; and
(ii) less than 5 years before the day on which the application is made; or
(e) is an individual who was a director of, or a shareholder who held a controlling interest in, a corporation that:
(i) was the holder of a licence, under the Regulations or the repealed Regulations; and
(ii) entered into a prescribed financial arrangement:
(A) while he or she was the director or the shareholder who held a controlling interest; and
(B) less than 5 years before the day on which the application is made; or
(f) entered into a prescribed financial arrangement, unless the arrangement was discharged, completed or terminated more than 5 years before the day on which the application is made; or
(g) was convicted of a prescribed offence not more than 5 years before the day on which the application is made.
“7c. (1) A corporation is ineligible to be granted a licence if a corporation that holds a controlling interest in the corporation:
(a) held a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at its request, less than 5 years before the day on which the application is made; or
(b) was a partner in a partnership that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the partnership’s request:
(i) while it was a partner; and
(ii) less than 5 years before the day on which the application is made; or
(c) entered into a prescribed financial arrangement, unless the arrangement was discharged, completed or terminated more than 5 years before the day on which the application is made.
“(2) A corporation that entered into a prescribed financial arrangement is ineligible to be granted a licence unless the arrangement was discharged, completed or terminated more than 5 years before the day on which the application is made.
“(3) Subregulation (4) applies to the following persons:
(a) a director of a corporation that applies for a licence;
(b) an individual who is a shareholder who holds a controlling interest in a corporation that applies for a licence;
(c) a director of a corporation that holds a controlling interest in a corporation that applies for a licence;
(d) an individual who is a shareholder who holds a controlling interest in a corporation that holds a controlling interest in a corporation that applies for a licence.
“(4) A corporation is ineligible to be granted a licence if a person:
(a) held a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at his or her request, less than 5 years before the day on which the application is made; or
(b) was a partner in a partnership that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the partnership’s request:
(i) while he or she was a partner; and
(ii) less than 5 years before the day on which the application is made; or
(c) was a partner in a partnership that:
(i) was the holder of a licence, under the Regulations or the repealed Regulations; and
(ii) entered into a prescribed financial arrangement:
(A) while he or she was a partner; and
(B) less than 5 years before the day on which the application is made; or
(d) was a director of, or a shareholder who held a controlling interest in, a corporation that was the holder of a licence, under the Regulations or the repealed Regulations, that was revoked by the Corporation, otherwise than at the corporation’s request:
(i) while he or she was the director or the shareholder who held a controlling interest; and
(ii) less than 5 years before the day on which the application is made; or
(e) was a director of, or a shareholder who held a controlling interest in, a corporation that:
(i) was the holder of a licence, under the Regulations or the repealed Regulations; and
(ii) entered into a prescribed financial arrangement:
(A) while he or she was the director or the shareholder who held a controlling interest; and
(B) less than 5 years before the day on which the application is made; or
(f) entered into a prescribed financial arrangement, unless the arrangement was discharged, completed or terminated more than 5 years before the day on which the application is made; or
(g) was convicted of a prescribed offence not more than 5 years before the day on which the application is made.”.
7.1 Paragraph 8 (b):
Omit the paragraph, substitute:
“(b) ceases to be in force:
(i) if it is revoked—on the day on which it is revoked; or
(ii) in any other case—at the end of the licence period.”.
7.2 Paragraph 8 (c):
Omit the paragraph.
7.3 Add at the end:
“(2) Before a licence ceases to be in force, the licensee may apply to the Corporation to renew the licence.
“(3) The Corporation may renew the licence or refuse to renew it.
“(4) Regulations 7 to 7c (inclusive) apply to an application for the renewal of a licence as if the licensee were an applicant for the grant of a licence.”.
8.1 Omit the regulation, substitute:
“9. (1) The Corporation must:
(a) determine a scale of financial ratings that it will give to an applicant for a licence, and to a licensee, to indicate the applicant’s or licensee’s financial standing; and
(b) include in the scale:
(i) a rating that indicates whether the applicant or licensee is a trustee company; and
(ii) a rating that indicates whether the applicant or licensee commenced business less than 12 months before the rating is given; and
(iii) a rating that indicates whether the amount of the applicant’s or licensee’s net worth is less than 0; and
(c) publish the scale of ratings in a form readily available to the public.
“(2) The Corporation must give a financial rating to an applicant for a licence if the information provided by the applicant is adequate to allow the Corporation to make a fair assessment of the applicant’s financial standing.
“(3) In spite of paragraph (1) (b), if the information provided by the applicant is inadequate to allow the Corporation to make a fair assessment of the applicant’s financial standing, the Corporation may refuse to give a financial rating to an applicant.
“(4) The financial rating given to a person who is granted a licence is taken to be the rating that the Corporation gave the licensee while the licensee was an applicant.
“(5) At any time while a licence is in force, the Corporation may:
(a) require the licensee to have the licensee’s financial standing assessed by an approved credit assessor; and
(b) give a new financial rating to the licensee.
“(6) At any time while a licence is in force, the licensee may apply to the Corporation for a new financial rating.
“(7) If the licensee applies for the new financial rating, the Corporation may give, or refuse to give, the new rating.
“(8) The Corporation may use information given to it by an approved credit assessor for the purpose of deciding:
(a) whether to give a financial rating or a new financial rating; and
(b) the rating it will give.
“(9) The Corporation may publish:
(a) the name of a licensee; and
(b) the licensee’s business address; and
(c) if the licensee is a partnership—the names of the partners; and
(d) if the licensee is a corporation—the names of:
(i) the directors of the corporation; and
(ii) the shareholders who hold a controlling interest in the corporation; and
(e) the kinds of horticultural products that are set out in the licensee’s licence; and
(f) the kind of business undertaken by the licensee; and
(g) if the licensee agrees in writing—the licensee’s current financial rating; and
(h) if the licensee does not agree to the publication of the licensee’s financial rating:
(i) a statement that the licensee has not agreed to the publication of the rating; and
(ii) if the licensee gives a reason for not agreeing—the reason.
“(10) If a licensee, in writing, withdraws the licensee’s consent to the publication of the licensee’s financial rating, the Corporation must not undertake any further publication of the rating.
“(11) If the Corporation gives, or refuses to give, a financial rating or a new financial rating, it must give the applicant or the licensee a notice that includes:
(a) the reasons for its decision; and
(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 for review of the decision; and(c) except where subsection 28 (4) of the
Administrative Appeals Tribunal Act 1975 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.
“(12) The validity of:
(a) a financial rating; or
(b) a new financial rating; or
(c) a refusal to give a financial rating or a new financial rating;
is not affected by a failure to comply with subregulation (11).”.
9.1 Paragraph 10 (1) (b):
Omit the paragraph.
9.2 Paragraph 10 (1) (d):
Omit “subject to subregulation (2)—”.
9.3 Paragraph 10 (1) (g):
Omit the paragraph, substitute:
“(g) the licensee does not provide information that is false or misleading in a material particular:
(i) in the application for a licence; or
(ii) to an approved credit assessor; or
(iii) to the Corporation in response to a notice under subregulation 13 (2); or
(iv) in a return required under regulation 19; and”.
9.4 Paragraph 10 (1) (h):
Omit the paragraph.
9.5 Subregulation 10 (1):
Add at the end:
“; and (l) if the licensee is a partnership—the licensee will inform the Corporation of a change of partners within 28 days of the change; and
(m) if the licensee is a corporation—the licensee will inform the Corporation, within 28 days, of a change:
(i) of the controlling shareholder; or
(ii) that results in a shareholder holding 20 percent or more of the licensee’s shares; or
(n) if the licensee enters into a prescribed financial arrangement while the licence is in force—the licensee will inform the Corporation within 28 days after entering into it; and
(o) if:
(i) the licensee; or
(ii) if the licensee is a partnership—a partner; or
(iii) if the licensee is a corporation—a director of, or an individual who is a shareholder who holds a controlling interest in, the corporation;
is convicted of a prescribed offence—the licensee will inform the Corporation within 28 days after the licensee, partner, director or shareholder is convicted; and
(p) if the Corporation requires the licensee under subregulation 9 (5) to have the licensee’s financial standing assessed by an approved credit assessor—the licensee will have its financial standing assessed as soon as practicable; and
(q) if the Corporation asks the licensee under subregulation 13 (2) to give information to the Corporation—the licensee will give the information to the Corporation as soon as practicable.”.
10.1 Subregulation 11 (3):
Omit the subregulation, substitute:
“(3) The Corporation may vary a licence:
(a) if the licensee asks it to do so—by adding a kind of horticultural product to the licence; or
(b) if the licensee does not export a kind of horticultural product set out in the licence within the period referred to in paragraph 10 (1) (d)—by omitting the kind of horticultural product from the licence.”.
10.2 Subregulation 11 (4):
Omit “or varied” (first occurring), substitute “, or varied under paragraph (3) (b),”.
11.1 Subregulation 12 (5):
After “each licensee”, insert “to whom the Corporation Permission applies”.
12.1 Omit the regulation, substitute:
“13. (1) At any time while a licence is in force, the Corporation may examine the licensee’s compliance with:
(a) these Regulations; or
(b) the Corporation Permission; or
(c) the conditions to which the licence is subject.
“(2) For the purposes of these Regulations, the Corporation may, by notice, ask the licensee to give to it the information set out in the notice relating to:
(a) the licensee’s conduct as a licensee; or
(b) the licensee’s financial arrangements; or
(c) if the licensee is a partnership—the identity of the partners; or
(d) if the licensee is a corporation—its ownership and its management arrangements; or
(e) whether, since the licence was granted, any of the following persons has entered into a prescribed financial arrangement:
(i) the licensee; or
(ii) if the licensee is a partnership—a partner; or
(iii) if the licensee is a corporation—a director of, or a shareholder who holds a controlling interest in, the corporation;
(f) whether, since the licence was granted, any of the following persons has been convicted of a prescribed offence:
(i) if the licensee is an individual—the individual; or
(ii) if the licensee is a partnership—a partner; or
(iii) if the licensee is a corporation—a director of, or a shareholder who holds a controlling interest in, the corporation.”.
13.1 Paragraph 16 (f):
Omit “Federates States”, substitute “Federated States”.
14.1 Subregulation 18 (4):
Omit the subregulation, substitute:
“(4) An application may be made to the Administrative Appeals Tribunal for the review of a decision:
(a) not to grant a licence under subregulation 7 (1); or
(b) not to renew a licence under subregulation 8 (3); or
(c) to give a particular financial rating under subregulation 9 (2) to an applicant for a licence; or
(d) to refuse to give a financial rating under subregulation 9 (3) to an applicant for a licence; or
(e) to give, or to refuse to give, a new financial rating under subregulation 9 (7) to a licensee; or
(f) to revoke a licence under subregulation 11 (1); or
(g) to vary a licence under paragraph 11 (3) (b); or
(h) to specify a condition in the Corporation Permission under regulation 12; or
(i) not to appoint a person or body under subregulation 15 (2) as an approved credit assessor.”.
15.1 Subregulation 19 (4):
Omit “subregulation 9 (2) within 14 days”, substitute “paragraph 9 (9) (a), (b) or (f) within 28 days”.
16.1 Add at the end:
“4 The winding up of the applicant or the licensee.
5 The appointment of a provisional liquidator to the applicant or the licensee.”.
1.
Notified in the
2. Statutory Rules 1990 No. 422.
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