Farm Produce Marketing Act Amendment Act 1986 (Qld)

724 A N ueenslanb ANNO TRICESIMO QUINTO ELIZABETHAE SECUNDAE REGINAE No. 46 of 1986 An Act to amend the Farm Produce MarketingAct 1964- 1982 in certain particulars and for related purposes [ASSENTED TO 25TH SEPTEMBER , 1986]

Farm Produce Marketing Act Amendment Act 1986 , No. 46 725 BE IT ENACTED by the Queen' s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same, as follows:- 1. Short title . This Act may be cited as the Farm Produce Marketing Act Amendment Act 1986. 2. Commencement . (1) This section and sections 1 and 4 (1) shall commence in the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act shall commence on 1 January 1987. 3. Principal Act and citation as amended . (1) In this Act the FarmProduce Marketing Act 1964-1982 is referred to as the Principal Act. (2) The Principal Act as amended by this Act may be cited as the Farm Produce Marketing Act 1964-1986. 4. Savings and transitional . (1) Notwithstanding the provisions-of section 8 of the Principal Act, a licensee who desires to obtain a renewal of his license under that Act as from 1 January 1987 may lodge with the registrar (within the meaning of that Act) the application form, the fees and other documents prescribed by that section whereupon he shall be deemed to have lodged the application form, prescribed fee and other documents with the appropriate clerk of the court. (2) Where, prior to the commencement of this subsection, any application, which after that commencement is required to be lodged with the registrar, has been lodged with the appropriate clerk of the court, and, at the commencement of this subsection, the clerk of the court has not finally dealt with the application in accordance with the Principal Act, the clerk of the court shall transmit the application and any other document that accompanied the application to the registrar who shall deal with the application and the provisions of the Principal Act as amended by this Act shall apply in respect of the application. 5. Amendment of s. 7. Application for farm produce commercial seller's license . Section 7 of the Principal Act is amended by- (a) omitting from subsection (1) all words from and including the words "the clerk of the court" to the end of the subsection and substituting the words "the registrar."; (b) in subsection (2) (d)- (i) omitting provision (ii) and substituting the following provision:- "(ii) the prescribed fidelity bond from an insurer;"; (ii) in provision (iv)- (A) omitting the words " "The Business Names Act of 1962" " and substituting the words "the Business Names Act 1962-1979";

726 Farm Produce Marketing Act Amendment Act 1986, No. 46 (B) omitting the words " clerk of the court " where they twice occur and substituting the word " registrar " in each case; (c) in subsection (3)- (i) in the first paragraph- (A) omitting the words " " The Business Names Act of 1962," " and substituting the words " the Business NamesAct 1962-1979"; (B) omitting provision (d); (ii) omitting from the second paragraph the expression ", ( d)"; (d) omitting subsection ( 4) and substituting the following subsection:- "(4) Upon receipt of an application , the registrar shall forthwith make such investigation into the application as he thinks appropriate."; (e) omitting subsection (5); (f) omitting from subsection ( 6) the word " court" and the word "it" and substituting the word "registrar " and the word " he" respectively; (g) in subsection (8)- (i) omitting from the proviso to paragraph ( a) all words from and including the words "where an application " to and including the word "December" and substituting the words "where before the date for expiry of the license , the registrar has not finally dealt with an application for the renewal of the license made in accordance with section 8"; (ii) omitting from the paragraph commencing with the words " "Finally dealt" the words "court, or where that court" and substituting the words "registrar , or where the registrar"; (iii) omitting the last paragraph; (h) in subsection (9)- (i) omitting from the first paragraph the words " "The BusinessNames Act of 1962", the court" and substituting the words "the BusinessNames Act 1962-1979, the registrar"; (ii) omitting from the second paragraph the word "court" and substituting the word " registrar"; (iii) omitting from the third paragraph the words "court for its" and substituting the words "registrar for his"; (iv) omitting from the fifth paragraph the word "court", the word "it" and the word "relative" and substituting the word "registrar", the word "he" and the word "relevant" respectively; (i) adding at the end of the section the following subsection:- "(11) The registrar shall give notice in writing to each applicant whose application for a license is refused which notice shall state the registrar's reason for that refusal.".

Farm Produce Marketing Act Amendment Act 1986, No. 46 727 6. Amendment of s. 8 . Renewal of license. Section 8 of the Principal Act is amended by- (a) in subsection (1)- (i) omitting the words "clerk of the court specified in subsection (1) of section seven of this Act" and substituting the word "registrar"; (ii) omitting paragraph (a) and substituting the following paragraph:- "(a) the prescribed fidelity bond or a certificate, in the prescribed form, of the renewal of the fidelity bond in respect of the applicant;"; (b) in subsection (2)- (i) omitting the words "that court" and substituting the words "the registrar"; (ii) omitting the words "on the hearing of the application". 7. Repeal of s. 8A. Offence not to hold fidelity bond . The Principal Act is amended by repealing section 8A. 8. Repeal of and new s. 9. Appeal with respect to grant or renewal of license . The Principal Act is amended by repealing section 9 and substituting the following section:- "9. Appeal against refusal to grant or renew license: (1) A person who feels aggrieved by the refusal of his application for a license or a renewal thereof may, within 28 days after service of the notice of refusal, appeal to the court within the district in which his principal place of business is situated and which is nearest by the most convenient route to that principal place of business. (2) An appeal may be instituted by- (a) lodging with the Clerk of the Court having jurisdiction, written notice of appeal; and (b) serving a copy of that notice on the registrar. A notice of appeal- (c) shall specify fully the grounds of appeal and the facts upon which he relies; and (d) if a form is prescribed , shall be in or to the effect of .. that form. ( 3) An appeal shall be by way of re-hearing. (4) Jurisdiction is hereby conferred on Magistrates Courts to hear and determine appeals instituted in accordance with subsection (2). (5) (a) Rules of Court may be made , under the MagistratesCourts Act 1921-1982 with respect to the institution , conduct

7_18 Farm Produce Marketing Act Amendment Act 1986, No. 46 and disposal of appeals to the court pursuant to the provisions of this section. (b) Until those rules are made or in so far as those rules do not exend- (i) the procedure for obtaining subpoenas to witnesses requiring them to attend on such an appeal shall, subject however to all such modifications and adaptations thereof as are necessary to give operation and effect to this section , be that provided by the Rules of Court made under the Magistrates CourtsAct 1921-1982 , as if that appeal were a proceeding under those lastmentioned Rules of Court; (ii) a Stipendiary Magistrate may, in any particular case give such directions as he thinks fit , including directions in relation to obtaining subpoenas where the procedure under subparagraph ( i) does not extend or is inappropriate , and such directions shall, according to their tenor, have the force and effect of Rules of Court made for the purposes of the appeal. (6) No appeal shall lie against the determination of an appeal by a court under this section , which decision shall be final: Provided always that nothing in this section shall prevent upon reasonable grounds the refusal of any subsequent application for a license subsequent to the court 's determination. (7) Notwithstanding that an appeal has been lodged, any refusal, under this Act shall be effective as such until the court makes its determination upon the appeal. (8) A person who has duly appealed against the refusal to renew his license shall be entitled to carry on business in all respects as if his license had been renewed until the determination of the appeal.". 9. Amendment of s. 17. Appointment of substitute by licensee. Section 17 of the Principal Act is amended by- (a) omitting from subsection (1) all words from and including the words "the court within" to the end of the subsection and substituting the words "the registrar."; (b) omitting from subsection (2) (a) the words "twenty-one" and substituting the expression "18"; (c) omitting from subsection (3) the words "court shall be lodged with the clerk of the court" and substituting the words "registrar shall be lodged with the registrar"; (d) omitting subsection (4) and substituting the following subsection:- "(4) Upon receipt of an application, the registrar shall forthwith make such investigation into the application as he thinks appropriate.";

Farm Produce Marketing Act Amendment Act 1986 , No. 46 729 (e) omitting subsection (5); (f) in subsection (6)- (i) omitting from the first paragraph the word "court", the words "seven of this Act, it" and the words "by it" and substituting the word "registrar", the words "7, the registrar" and the words "by the registrar" respectively; (ii) omitting the third paragraph; (g) in the first paragraph of subsection (7)- (i) omitting from provision (i) the words "court sooner revokes its" and substituting the words "registrar sooner revokes his"; (ii) omitting from provision (ii) the words "clerk of the court which approved of his substitute" and substituting the word "registrar"; (h) omitting the first paragraph of subsection (8) and substituting the following paragraph:- "A court within the district in which the registered office of a licensee is situate may revoke the approval of a substitute at any time on any one or more of the grounds upon which a license may be cancelled under section 10.". 10. Amendment of s. 18 . Death or insolvency of licensee . Section 18 of the Principal Act is amended by- (a) in subsection (1)- (i) omitting from the first paragraph the words "court which issued such license" and substituting the word "registrar"; (ii) omitting from the second paragraph the words "court shall be lodged with the clerk of such court" and substituting the words "registrar shall be lodged with him"; (b) in subsection (2)- (i) omitting from the first paragraph the word "its" and the word "court" and substituting the word "his" and the word "registrar" respectively; (ii) omitting from the second paragraph the word "court" and substituting the word "registrar"; (c) in subsection (3)- (i) omitting the words "clerk of the court which granted the license. The said clerk" and substituting the words "registrar. The registrar"; (ii) omitting the words "and give notice thereof within fourteen days to the registrar".

730 Farm Produce Marketing Act Amendment Act 1986, No. 46 11. Amendment of s. 19 . Substitution or transfer in exceptional circumstances . Section 19 of the Principal Act is amended in the first paragraph by- (a) omitting the words "the court" and the words "the proper court for such approval" and substituting the word "the registrar" in each case; (b) omitting the words "and approved by the registrar". 12. Repeal of and news . 23. Purchase of farm produce . The Principal Act is amended by repealing section 23 and substituting the following section:- "23. Purchase of farm produce . (1) A transaction purporting to be a purchase of farm produce by a farm produce commercial seller acting in the capacity of a farm produce merchant from the person by whom it was actually produced is not a valid purchase of farm produce unless the price for which the farm produce is purchased or the method of determination of the purchase price is fixed by agreement in writing signed by the farm produce commercial seller and that person or is fixed- (a) prior to; or (b) no later than the close of trading on the next available trading day after, the delivery of the produce. (2) A farm produce commercial seller acting in the capacity of a farm produce merchant who purchases farm produce from the person by whom it was actually produced shall not fix the price by reference to any other transaction of that merchant in respect of that farm produce. (3) Where farm produce is delivered to a farm produce commercial seller under a transaction in which the price has not been fixed in accordance with subsection (1) or has been fixed contrary to subsection (2) the farm produce commercial seller shall be taken to be acting in the capacity of a farm produce agent. (4) In any proceeding for the purposes of this section, the onus of proof that the puce of farm produce was not fixed by reference to any other relevant transaction shall lie upon the party fixing that price.". 13. Amendment of s. 24. Purchase memorandum note or other record. Section 24 of the Principal .Act is amended by- (a) renumbering subsection (2) as subsection (4); (b)' omitting subsection (1) and substituting the following subsections:- "(1) Every farm produce commercial seller acting in the capacity of a farm produce merchant who purchases for resale

Farm Produce Marketing Act Amendment Act 1986, No. 46 731 any farm produce from the person by whom it was actually produced shall complete at the time when the price or the method of determination of the price is fixed a purchase memorandum note in the prescribed form or a record in a form approved by the registrar. (2) A purchase memorandum note completed pursuant to subsection (1) shall be forwarded by the farm produce commercial seller to the person by whom the farm produce was actually produced at the same time as the proceeds of sale are forwarded to him. (3) A farm produce commercial seller shall retain for a period of 12 months at his principal place of business as such a seller a copy of every purchase memorandum note or record completed by him pursuant to subsection (1).". 14. New s. 24A. The Principal Act is amended by inserting after section 24 the following section:- "24A. Consignment note. The registrar shall not be required to investigate a complaint by a person who has forwarded farm produce to a farm produce commercial seller if the registrar is not satisfied that a consignment note containing the prescribed particulars was forwarded with the farm produce.". 15. Amendment of s. 26 . Payment to vendor by farm produce commercial seller . Section 26 of the Principal Act is amended by- (a) omitting from subsection (2) the words "(which agreement shall be evidenced in writing)"; (b) adding at the end of the section the following subsections:- "(5) For the purposes of subsection (2), a period is not a period as is otherwise agreed between the parties if the agreement by the parties- (a) is not in writing; and (b) has not been signed by the farm produce commercial seller and the vendor. (6) Notwithstanding anything contained in an agreement, a party to an agreement of a period for the purposes of subsection (2) may rescind the agreement by notice in writing given to the other party.". 16. New s. 26A. The Principal Act is amended by inserting after section 26 the following section:- "26A. Duration of certain agreements . (1) An agreement entered into pursuant to section 23 or 26 by a farm produce commercial seller acting in the capacity of a farm produce merchant and a person who actually produces farm produce shall not continue in force beyond the expiration of the prescribed

73,2 Farm Produce Marketing Act Amendment Act 1986, No. 46 period after the making of the agreement or the renewal of the agreement in accordance with subsection (2). (2) An agreement referred to in subsection (1) shall be renewed if- (a) the farm produce seller has, at least 30 days (and not more than 60 days) before that date of expiration, given to the person who actually produces the farm produce a notice in writing stating that, unless the agreement is sooner varied or rescinded, the agreement shall continue in force beyond that date of expiration; and (b) the person who actually produces the farm produce has not by notice in writing to the farm produce seller rescinded the agreement. (3) Notwithstanding anything contained in an agreement referred to in subsection (1) and without prejudice to the parties' right to otherwise rescind the agreement, there is an implied condition in each such agreement that any party to the agreement may rescind the agreement which rescission shall take effect upon receipt by the other party of the notice in writing of rescission or at such later date as may be specified in the notice. (4) For the purposes of subsection (1), in respect of an agreement, the prescribed period is the period prescribed at the time of- (a) the making of the agreement; or (b) the latest renewal of the agreement, whichever is the later. (5) A farm produce commercial seller shall keep a copy of each agreement made by him pursuant to section 23 or 26 at his principal place of business.". 17. Amendment of s. 30. Banking of moneys. (1) Section 30 of the Principal Act is amended by- (a) omitting the word "Trust" wherever it occurs; (b) omitting from subsection (2) the words "farm produce trust account" and substituting the words "Farm Produce Account"; (c) omitting subsections (10) and (11). (2) A Farm Produce Trust Account that immediately before the commencement of this section was maintained pursuant to section 30 of the Principal Act by a farm produce seller shall continue to be maintained by that seller after that commencement as the Farm Produce Account in accordance with that section as amended by this section. 18. Repeal of s. 30A. Level of funds to be maintained . The Principal Act is amended by repealing section 30A.

Farm Produce Marketing Act Amendment Act 1986 , No. 46 733 19. Amendment of s. 31. Duty of bank manager . Section 31 of the Principal Act is amended by omitting the words "trust account" and substituting the words "account required by this Act to be maintained". 20. Amendment of s. 32 . Inspection , audit, & c., by registrar, &c. Section 32 of the Principal Act is amended by omitting the word "trust" where it occurs in subsection (1), twice in subsection (2) (a) (i) and in subsection (7) and substituting the words "farm produce" in each case. 21. Amendment of s. 33 . Audit of trust accounts , &c. Section 33 of the Principal Act is amended by- (a) omitting from the note to the section the word "trust" and substituting the words " farm produce"; (b) omitting the word "Trust" where it occurs in subsections (1) (a) (i), (2) (a) (i), (3) (a) and (3) (e); (c) omitting the word "trust" where it occurs in subsection (1) (a) (i), in the proviso to the first paragraph of subsection (1), in subsection (2) (a) (i), in the proviso to the first paragraph of subsection (2), in subsection (3) (a) twice and in subsection (4); (d) omitting from subsection (1) (a) (i) the words " "The Public Accountants Registration Acts, 1946 to 1963" " and substituting the words "the Public Accountants Registration Act 1946-1975"; (e) omitting subsection (1A); (f) omitting from subsection (2) (a) (i) the words " "The Public Accountants Registration Acts, 1946 to 1963" " and substituting the words "the Public Accountants Registration Act 1946-1975"; (g) omitting from subsection (2) (b) the words "a trust" and substituting the word "an". 22. Amendment of s. 35 . Books, &c., to be kept. Section 35 of the Principal Act is amended by omitting from subsection (1) (a) the word "trust" and substituting the words "farm produce". 23. Amendment of s. 36 . Section 36 of the Principal Act is amended by- (a) omitting from subsection (1) (b) the words "clerk of the court specified in subsection (4) of this section" and substituting the word "registrar"; (b) in subsection (4)- (i) omitting from the first paragraph the words "clerk of the court within the district in which his registered office is situated and which is nearest by the most convenient route to such registered office" and substituting the word "registrar";

734 Farm Produce Marketing Act Amendment Act 1986, No. 46 (ii) omitting the first sentence from the second paragraph. 24. Amendment of s. 37 . Inspection by owner . Section 37 of the Principal Act is amended by omitting from the first paragraph the words "for sale on commission". 25. Amendment of s. 42 . Entries in Register . Section 42 of the Principal Act is amended by omitting from subsection (1) the words "granted, renewed," and the words " grant , renewal,". 26. Amendment of s. 45 . Destruction of farm produce . Section 45 of the Principal Act is amended by- (a) inserting in subsection (1) after the word "seller" the words "acting in the capacity of a farm produce agent"; (b) omitting from subsection (2) the words ", if so requested by the grower, supply to that grower" and substituting the words ", except where the person who actually produces the farm produce indicates in writing that he does not require such a certificate to be supplied to him, supply to that person"; (c) adding at the end of the section the following subsections:- "(3) A farm produce commercial seller acting in the capacity of a farm produce merchant shall not cast away farm produce without a certificate referred to in subsection (2) before he and the person who actually produces the farm produce have determined the price of the farm produce. (4) A farm produce commercial seller shall pay the prescribed fee for a cast away certificate.". 27. Amendment of s. 50 . Regulations . Section 50 of the Principal Act is amended in subsection (4) by- (a) omitting from paragraph (iii) the word "applications" and substituting the words "an application"; (b) inserting in paragraph (viii) after the words "suspensions thereof" the words "and of associated persons"; (c) omitting from paragraph (xii) the word "Trust" and the word "trust". 28. New s. 52. The Principal Act is amended by inserting after section 51 the following section:- "52. Protection of registrar . Liability at law shall not attach to the registrar on account of anything donc for the purposes of

Farm Produce Marketing Act Amendment Act 1986, No. 46 735 this Act or done in good faith and without negligence and purporting to be done for the purposes of this Act.".