Milk Supply Act Amendment Act 1981 (Qld)

431 O u ursl rnb ANNO TRICESIMO ELIZABETH AE SE C UND AE RE GIN AE No. 50 of 1981 An Act to amend the Milk SupplyAct 1977-1978 in certain particulars [ASSENTED TO 12TH JUNE, 19811

432 Milk Supply Act Amendment Act 1981, No. 50 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 and citation . (1) This Act may be cited as the Milk Supply Act Amendment Act 1981. (2) The Milk Supply Act 1977-1978 is in this Act referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Milk Supply Act1977-1981. 2. Commencement . This Act shall commence on a date appointed by Proclamation. 3. Amendment of s. 5 . Crown not bound . Section 5 of the Principal Act is amended by in subsection ( 2) omitting the words " The Board " and substituting the words " Except as otherwise expressly provided the Board ". 4. Amendment of s. 6. Interpretation . Section 6 of the Principal Act is amended by- (a) inserting after the definition of the term " holder " and before the definition of the term " licence " the following definition:- Inssppeeccttoorr " means an inspector appointed under this Act and includes a person for the time being performing the duties of an Inspector and a person acting under the direction or in aid of an Inspector;"; (b) in the definition of the term " market milk " inserting after the words " skim milk " the word " powder "; (c) in paragraph (a) of the definition of the term "market milk entitlement " inserting after the words " market milk " the words " and such market milk is hereby deemed to be an asset in the hands of the processor "; (d) inserting after the definition of the term " person " and before the definition of the term " processor " the following definitions:- `` `< place " means any- (a) land, whether improved or unimproved, and whether enclosed or unenclosed; or (b) building or structure on or in any land, and whether completely or partly erected or constructed, or in the course of being erected or constructed; or (c) room in any building or structure; 44 premises " includes any place, vehicle, ship or vessel;";

Milk Supply Act Amendment Act 1981, No. 50 433 (e) by omitting the definition of the term " processor " and substituting the following definition:- " " processor" means the occupier of premises at which milk, cream or other dairy product is treated and includes a person declared by Order in Council to be a processor. The term does not include the occupier of- (a) a dairy; (b) premises used exclusively in connexion with the manufacture of butter, cheese or such other substance declared by Order in Council to be a substance to which this paragraph applies;"; (f) in the definition of the term " treat " omitting the word refrigerate ". 5. Amendment of s. 8. Composition . Section 8 of the Principal Act is amended by- (a) omitting the words " The Board shall consist of 10 members " and substituting the words " The Board shall consist of not less than 10 members nor more than 11 members "; (b) in paragraph (c) omitting the word " three " and substituting the words " not less than 3 nor more than 4 ". 6. New ss. 28A-28D. The Principal Act is amended by inserting after section 28 the following sections:- " 28A. Power of inspectors generally. (1) For the purposes of this Act an inspector at any time- (a) may, subject to subsection (2), enter any place; (b) may make with respect to any place such investigation and enquiry as is necessary to ascertain whether the provisions of this Act are being complied with; (c) may inspect any premises or any other place that he believes on reasonable grounds is being or is likely to be used in the receipt, storage, manufacture, grading, testing, carriage or sale of milk, cream or other dairy product; (d) may examine any ingredients or materials (including water) found in any premises or place inspected pursuant to subparagraph (c); (e) may stop, detain and search any vehicle or vessel used or that he believes on reasonable grounds is being or is likely to be used for the carriage of milk, cream or other dairy product; (f) may seize and detain milk, cream or other dairy product, ingredients, materials (including water) and any relevant book, account, record or document found in or on any premises or other place inspected by him; (g) may remove milk, cream or other dairy product or any other thing seized by him under this Act from the place where it was seized to such place as he determines or may allow that

434 Milk Supply Act Amendment Act 1981, No. 50 milk, cream or other dairy product or other thing to remain at the place of seizure and in the latter case may make such arrangements as he considers necessary to protect it; (h) may open or order to be opened any place, container used for the carriage of goods, package, tank or vat found in or on premises or any other place that contains, or that he believes on reasonable grounds contains, milk, cream or other dairy product or ingredients or materials (including water) used in connexion with the manufacture thereof; (i) may seize and take in the prescribed manner and without payment, for examination, grading, testing or analysis, any sample of or any package containing milk, cream or other dairy product or ingredients or materials (including water) used in connexion with the manufacture thereof; (j) may question a person found by him in any place to ascertain whether this Act is being complied with and require a person so found to answer the questions put; (k) may require a person found by him committing an offence against this Act, or who he believes on reasonable grounds has committed an offence against this Act or whose name and address are in his opinion reasonably required, to state his full name and the address of his usual place of residence and, if he suspects on reasonable grounds that a name or address so stated is false, may require evidence of the correctness thereof; (1) may require a person to produce to him any permit, licence or authority under this Act granted and issued to that person or alleged by that person to have been granted and issued to him or any books, accounts, records or documents and may inspect, examine and make copies of or extracts from any permit, licence or authority or any book, account, record or document so produced; (m) may, in a case where he is obstructed or has reasonable grounds to believe that he will be obstructed in the exercise of his powers or authorities or the discharge of his functions or duties, call to his aid- (i) another officer or inspector; (ii) a person who he thinks is competent to assist him in the exercise of his powers and authorities or the discharge of his functions and duties and persons so called to assist him as required and in accordance with this Act shall have the same powers and authorities as are conferred upon an inspector under this Act; (n) may use such force as is reasonably necessary in the exercise of the powers and authorities or the discharge of the functions and duties conferred or imposed upon him by this Act; (o) may, by order in writing, require a person who has failed to comply with this Act to take within such time as is specified such steps as are specified and to remedy those matters in respect of which non-compliance has occurred;

Milk Supply Act Amendment Act 1981, No. 50 435 (p) may exercise such other powers and authorities and discharge such other functions and duties as are prescribed. (2) An order pursuant to subparagraph (o) of subsection (I)- (a) shall be in the prescribed form; (b) shall not prejudice or affect in any way any proceeding or action that has been or may be taken for the failure to comply that resulted in the order, save that the person to whom the order is given is not liable for a continuance of the failure to comply during the time specified therein. (3) (a) Before an inspector enters a part of any place which part is used exclusively as a dwelling-house he shall, save where he has the permission of the occupier of that part to his entry, obtain from a justice a warrant to enter. (b) A justice who is satisfied upon the complaint of an inspector that there is reasonable cause to suspect- (i) that in any place an offence against this Act has been, is being or is likely to be committed; (ii) that there is in any place any thing in respect of which an offence against this Act has been, is being or is likely to be committed, may issue his warrant directed to the inspector to enter the place named in the warrant for the purpose of exercising therein the powers conferred upon an inspector under this Act. (c) A warrant shall be, for the period of one month from the date of its issue, sufficient authority for the inspector and all persons acting in aid of him- (i) to enter the place specified in the warrant; and (ii) to exercise therein the powers conferred upon an inspector by or under this Act. (d) In this subsection premises that are used as a dwelling-house do not include the curtilage of those premises. (4) For the purpose of gaining entry to a place an inspector may call to his aid such persons as he thinks necessary and those persons, while acting in aid of an inspector in the lawful exercise by him of his power of entry, shall have a like power of entry. (5) Where milk, cream or other dairy product is received, manufactured, carried, handled or sold during the night-time, an entry and inspection pursuant to this section may be made at all reasonable times during the day-time or night-time but otherwise such entry and inspection shall be made at all reasonable times during the day-time. (6) A person is not obliged under this Act to answer any question or give any information or evidence tending to criminate him. 28B. Duty of inspector upon making an order. An inspector shall as. soon as practicable after making an order under this Act furnish to the Chairman of the Board full particulars thereof.

436 Milk Supply Act Amendment Act 1981, No. 50 28C. Power of inspector to require assistance and information. (1) Upon demand made in that behalf by an inspector, an owner or manager of premises or a vendor or the person in charge of a vehicle or vessel- (a) shall furnish to the inspector a list of the names of persons- (i) who supply to that owner, manager, vendor or, as the case may be, person in charge, milk, cream or other dairy product; (ii) to whom that owner, manager, vendor or, as the case may be, person in charge, supplies or intends to supply dairy products; (b) shall render to the inspector such assistance and furnish to him such information as he is able with a view to aiding the inspector. (2) The Chairman of the Board or an officer authorized by him in that behalf may require the owner of any premises to furnish to him information specifying the sources of supply of milk, cream or other dairy product received or sold by that owner and the names of persons to whom milk, cream or other dairy product are or will be sold or otherwise supplied. 28D. Offences with respect to inspectors and other officers . A person- (a) shall not assault, obstruct, threaten, abuse, insult or intimidate an inspector or other officer in the exercise of his powers or authorities or the discharge of his functions or duties under this Act or attempt so to do; (b) shall not fail to answer any question put to him for the purposes of this Act by an inspector or other officer or give a false or misleading answer to any question so put; (c) shall not fail to comply with a lawful direction or order of an inspector; (d) shall not, when required by or under this Act to render assistance or furnish information, fail to do so, or furnish information that is false or misleading; (e) shall not fail, without reasonable excuse proof whereof shall lie upon him, to produce a permit, licence or authority under this Act that he is required under this Act to produce or fail to allow an inspector to make a copy of or an extract from a permit, licence or authority; (f) shall not fail, upon demand made, to produce to an inspector for inspection or examination any book, account, record or document required or authorized under this Act to be produced or fail to allow an inspector to make a copy of or an extract from any book, account, record or document so produced; (g) shall not prevent a person from appearing before or being interrogated by an inspector or attempt so to do.".

Milk Supply Act Amendment Act 1981, No. 50 437 7. Amendment of s. 34. Power of Board to fix and declare prices. Section 34 of the Principal Act is amended by- (a) in subsection (2) omitting paragraph (c) and substituting the following paragraph:- (c) the price or prices to be paid by vendors or other persons for milk, cream or other dairy product purchased by wholesale for resale including- (i) subject to subparagraph (ii), the price or prices to be paid by vendors or other persons; and (ii) in the case of a particular vendor or a particular other person, when the Board is of the opinion that special circumstances exist after the Board has considered- (A) the frequency of deliveries made by that vendor or other person; and (B) such other matters as the Board considers relevant either generally or in a particular case, a specific price or prices to be paid by that vendor or other person;"; (b) inserting after subsection (2) and before subsection (3) the following subsection:- " (2A) (a) Where the Board fixes and declares a specific price or prices to be paid by a particular vendor or a particular other person under subsection (2) the Board shall give the processor who supplies that vendor or other person with milk, cream or other dairy product notice in writing setting out details of- (i) the specific price or prices fixed and declared by the Board to be paid by that vendor or other person for milk, cream and other dairy product; and (ii) the price or prices that would normally have been paid by that vendor or other person for milk, cream or other dairy product if the Board had not fixed and declared such specific price or prices. (b) When a processor receives a notice in writing under subsection (1), he shall thereafter pay to the Board, as soon as reasonably practicable, all such moneys, received by the processor in respect of sales of milk, cream or other dairy product to the vendor or other person in question, as exceed the amount which would normally have been received by the processor from that vendor or other person, if the Board had not fixed and declared such specific price or prices. (c) All moneys received by the Board under paragraph (b) shall be paid into and form part of the funds of the Board and shall be applied to the general use of the Board for the purposes of this Act.". 8. Amendment of s. 36. Licenses . Section 36 of the Principal Act is amended by- (a) in subsection (2) omitting from paragraph (iv) after the words " if any " the expression ";" and inserting the expression "."; (b) in subsection (3) inserting in paragraph (d) after the words " particular case " the words " or class of case ".

438 Milk Supply Act Amendment Act 1981, No. 50 9. Amendment of s. 36B. Securities by processors . Section 36s of the Principal Act is amended by in subsection (7) inserting in paragraph (a) after the word " bank;" the word " or ". 10. Amendment of s. 39. Cancellation , revocation or suspension of licence . Section 39 of the Principal Act is amended by in subsection (1) in paragraph (d) after subparagraph (iv) omitting the expression " . " and inserting the following expression and subparagraph:- 66 I (v) has failed to comply with any order or determination made, or any requirement, direction, notice or prohibition issued under the authority of this Act.". 11. Amendment of s. 41. Conditions of direction of supply by a producer or processor . Section 41 of the Principal Act is amended by- (a) in the note appearing in and at the beginning of the section omitting the words " a producer or processor " and substituting the words " licensed persons "; (b) in subsection (1) omitting the words "A producer or processor " and substituting the words "A person licensed under this Act "; (c) in subsection (4) omitting the words "A producer or processor " and substituting the words "A person licensed under this Act ". 12. Amendment of s. 66. Constitution. Section 66 of the Principal Act is amended by- (a) numbering the present section as subsection (1); (b) inserting after subsection (1) as so numbered the following subsection:- " (2) The Committee constituted under this section (and the Corporation of the Lands Administration Commission constituted under the Brigalow and Other Lands Development Act 1962-1978 where it acts in its capacity as agent of the Committee) shall for the purposes of the establishment; operation and maintenance of the Milk Entitlements Settlement Fund established under section 83A of this Act be deemed to represent and always to have represented the Crown in the right of the Government of the State.". 13. Amendment of s. 81. Remuneration to members . Section 81 of the Principal Act is amended by omitting the words " as are prescribed " and substituting the words " as the Minister approves ". 14. Amendment of s. 84 . Functions . Section 84 of the Principal Act is amended by in paragraph (b) inserting after the word " processor " where it first occurs in that section the words " at or about the time a producer ceases to supply milk to a processor within the meaning of section 86 of this Act ".

Milk Supply Act Amendment Act 1981, No. 50 439 15. New s. 85A. The Principal Act is amended by inserting after section 85 the following section:- " 85A. Allocation to processor to be deemed a loan . (1) Where the Committee exercises its powers pursuant to paragraphs (b) and (c) of section 84 and makes an allocation to any processor of any entitlement subject to the payment of moneys either directly or indirectly the amount so payable by the processor shall be and be deemed to be a loan by the said Committee to the processor and any payment to the Committee by the processor of such moneys whether in one payment or in several payments during any period of time shall be and be deemed to be repayments of a loan by the said Committee through the Milk Entitlements Settlement Fund established by section 83A^ of this Act. (2) This section shall be deemed to have commenced on 20 May, 1978 and shall have retrospective effect accordingly.". 16. Amendment of s. 86. Procedure on cessation by producer to supply milk to a processor . Section 86 of the Principal Act is amended by- (a) omitting subsection (8) and the expression " . " at the end of that subsection and substituting the following subsection and expression:- " (8) For the purposes of this section, a producer shall be deemed to have ceased supplying milk to a processor if the producer fails to so supply that processor for four consecutive months without submitting to the Committee a satisfactory explanation and obtaining from the Committee exemption from compliance with this section;"; (b) inserting after subsection (8) the following subsection:- " (9) For the purposes of this section, a producer shall, (subject to subsection (8) hereof) be deemed not to have ceased supplying milk to a processor unless- (a) the producer ceases to supply milk to that processor and gives notice to the processor and the Committee of his intention to so cease prior to such cessation; and (b) the producer applies for and obtains a surrender of- (i) his producer's licence; (ii) his certificate of registration with respect to his dairy produce premises under the Dairy Produce Act1978-1979; and (c) the Committee is satisfied that the land and premises specified in the allocation of entitlement to the producer are not used, and will not in the foreseeable future be used, in or for the production of milk.". 17. Amendment of s. 87. Entitlement to attach to land and holder. Section 87 of the Principal Act is amended- (a) by omitting from subsection (1) the words "A producer's entitlement " and substituting the words " Subject to this Act, a producer's entitlement ";

440 Milk Supply Act Amendment Act 1981, No. 50 (b) by omitting subsection (2) and inserting the following subsection:- " (2) Milk produced by a producer on land other than the land specified in a particular allocation shall not form part of the producer's entitlement in respect of that allocation;"; (c) by inserting after subsection (2) the following subsections:- (3) Notwithstanding the provisions of this Act, the Committee shall have the power, in its discretion, in any particular case where the Committee determines that special circumstances exist, to fix, by means of a method which is in the opinion of the Committee fair and reasonable, a producer's entitlement on land held or granted on a tenure approved by the Committee, and specified in an existing allocation; (4) Without limiting the powers of the Committee under this section, when exercising its discretion under subsection (3) in relation to an entitlement on land held or granted on leasehold tenure, the matters which the Committee may take into account include- (a) whether the consent in writing of the Committee to the lease has been sought and granted; and (b) whether there has been compliance with the conditions, if any, to which that consent was subject; (5) Notwithstanding the provisions of subsection (1), for. the purpose of fixing a producer's entitlement under subsection (3), the Committee may, in its discretion, when calculating a producer's annual milk supply to the processor, include milk supplied to the processor in each relevant period of twelve months ending on the last day of June, by a lessee approved by the Committee under this section, of the land and premises to which the relevant producer's entitlement relates; (6) Notwithstanding the provisions of subsection (1), where a producer who holds an entitlement which attaches to certain land and premises- (a) leases that land and premises with the approval of the Committee under this section, to another producer; or (b) leases from another producer, with the approval of the Committee under this section, other land and premises to which attaches the entitlement of that other producer, and milk is produced on either or both of such lands and premises, the Committee may, for the purposes of this section, in its discretion, in relation to that milk produced in each relevant period of twelve months ending on the last day of June, determine what proportion of that milk is to be attributed to the annual milk supply to the processor in respect of the relevant entitlement of each of the abovementioned producers.". 18. Amendment of s. 101. Appeal. Section 101 of the Principal Act is amended by in subsection (4) omitting the words " and such order as to costs as it thinks fit ".

Milk Supply Act Amendment Act 1981, No. 50 441 19. Amendment of s. 102. Procedure on appeal. Section 102 of the Principal Act is amended by- (a) in subsection (1) inserting after the word " secretary " where it first occurs the words " of the Appeals Tribunal "; (b) in subsection (2)- (i) inserting after the word " secretary " the words " of the Appeals Tribunal "; (ii) omitting the word " seven " and substituting the word fourteen ". 20. Repeal of and new s. 107. Interpretation . The Principal Act is amended by repealing section 107 and substituting the following section:- " 107. Interpretation . In this Part the terms " pasteurised milk " and " pasteurised cream " shall unless otherwise expressly provided by this Act refer to milk and cream the lacteal secretion of a bovine and the word " pasteurised " means the treatment of pasteurisation as prescribed in the Dairy Produce Act1978-1979.". 21. Amendment of s. 108. Powers of Governor in Council. Section 108 of the Principal Act is amended by inserting after subsection (1) the following paragraph:- Without limiting the generality of the foregoing provisions of this section the tribunal may make such further recommendations to the Governor in Council, concerning the supply and distribution of milk, cream and other dairy product generally within the locality, as it sees fit.". 22. Amendment of s. 109. Procedure on application . Section 109 of the Principal Act is amended by- (a) in subsection (6) omitting paragraph (d) and substituting the following paragraph:- (d) shall specify a date, time and place when and where the tribunal will sit to hear submissions from applicants and objectors."; (b) in subsection (9) inserting after the words "The tribunal" the words " in hearing submissions pursuant to paragraph (d) of subsection (6) "; (c) in subsection (10) inserting after the words " the tribunal " the words " upon hearing by the tribunal of submissions pursuant to paragraph (d) of subsection (6) "; (d) in subsection (11) omitting the words "an investigation" and substituting the words " a hearing pursuant to paragraph (d) of subsection (6) ". i5-xoex

442 Milk Supply Act Amendment Act 1981, No. 50 23. Amendment of s. 112 . Power of tribunal to fix terms and conditions without preliminary investigation . Section 112 of the Principal Act is amended by omitting the words " the Board " and substituting the words "the Chairman of the Board ". 24. Amendment of s. 113. Application to amend authority granted by Order in Council . Section 113 of the Principal Act is amended by- (a) in the note appearing in and at the beginning of the section omitting the words " to amend " and substituting the word " concerning "; (b) in subsection (1)- (i) omitting the words " or modification of that authority " and substituting the words ", modification, renewal, cancellation, revocation or suspension of that authority "; (ii) adding at the end thereof the following paragraph:- " A person making an application pursuant to this subsection shall upon making application pay the prescribed application fee and comply in all other respects with all conditions prescribed (if any)."; (c) in subsection (2) omitting the words " or modified " and substituting the words ", modified, renewed, cancelled, revoked or suspended "; (d) adding after subsection (2) the following subsections:- (2A) Upon the convening of a tribunal pursuant to subsection (2), the chairman of the tribunal shall cause to be advertised once in the Gazette and three times at intervals of not less than one week in some newspaper circulating in the locality or localities specified in the Order in Council granting the authority, a notice requiring objections to the granting of the application to be lodged in the manner specified in the notice. The notice- (a) shall state clearly and briefly the nature of the application made under subsection (1); (b) shall specify a date, time and place when and where the tribunal will sit to investigate the application and objections lodged. (2s) Subsections (8), (9), (10), (11) and (12) of section 109 shall apply with all necessary adaptations to the consideration by the tribunal of applications made under subsection (1)."; (e) in subsection (4)' omitting the words " or modification " and substituting the words ", modification, renewal, cancellation, revocation or suspension "; (f) inserting after subsection (4) the following subsection:- (5) The meanings of the terms amendment, alteration, variation or modification where used in this section in relation to an authority granted under this Part shall include, without in any way limiting the generality of those terms- (a) the amendment, alteration, variation or modification of- (i) any of the terms or conditions of an authority;

Milk Supply Act Amendment Act 1981, No. 50 443 (ii) the locality or localities of the State to which such authority relates; (iii) the time or times for which such authority is granted; and (iv) the pasteurisation plant or pasteurisation plants, the establishment or maintenance of which is authorized by the authority; (b) the amendment, alteration, variation or modification of an authority to provide for the establishment or maintenance of an additional pasteurisation plant or plants.". 25. New s. 113A. The Principal Act is amended by inserting after section 113 the following section:- " 113A. Validation in relation to certain Orders in Council. It is hereby declared that every Order in Council made prior to the commencement of the Milk Supply Act Amendment Act 1981, purporting to be made in pursuance of the provisions of section 113 of the MilkSupply Act1977-1978 or in pursuance of subsection (13) of section 48 of the Milk Supply Act 1952-1972, which Order in Council would have been authorized by section 113 of the Milk Supply Act1977-1981, if made or agreed to be made after that commencement, is and always was validly made and took effect from the date of publication in the Gazette.". 26. Amendment of s. 116. Audits. Section 116 of the Principal Act is amended by in subsection (4) omitting the words " statement of account " and substituting the words " statement of income and expenditure ". 27. Amendment of s. 125. Offences generally and penalty . Section 125 of the Principal Act is amended by in subsection (2) inserting after the words " authority of this Act " the words " or by any term, condition or restriction to which any licence issued under this Act is subject ". 28. Amendment of s. 128. Evidentiary provisions . Section 128 of the Principal Act is amended by- (a) in paragraph (c) omitting the word " special " and substituting the word " specified "; (b) inserting after paragraph (e) the following new paragraph:- " (ea) an allegation or averment in a complaint that a person has- (i) failed to do that which he is directed or required to do; or (ii) done that which he is forbidden to do by- (A) a person acting under the authority of this Act; or (B) any term, condition or restriction to which any licence issued under this Act is subject, shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of that allegation or averment;".

444 Milk Supply Act Amendment Act 1981, No. 50 29. Amendment of Second Schedule. Subject matter for Regulations. The Second Schedule is amended by- (a) in clause 10 inserting after the word " person " where it first occurs the words " including the vesting of discretions in relation thereto "; (b) in clause 13 inserting after the words " offered by such " the words " processor or ".