Prawn Export Promotion Act 1995 (Cth)
This compilation was prepared on 1 July 2001
taking into account amendments up to Act No. 137 of 2000
The text of any of those amendments not in force
on that date is appended in the Notes section
Prepared by the Office of Legislative Drafting,
Attorney‑General’s Department, Canberra
Contents
This Act may be cited as the
Prawn Export Promotion Act 1995 .
This Act commences on the day on which the
Prawn Boat Levy Act 1995 commences.
In this Act, unless the contrary intention appears:
annual operational plan , in relation to FRDC, has the same meaning as in the Research and Development Act.
Australian Prawn Promotion Association Limited means the body corporate having that name at the commencement of this Act.
collecting authority means a State, or an authority of a State, that, under an agreement entered into under section 11, has agreed to collect levy on behalf of the Commonwealth.
collecting organisation means an organisation with which the Secretary has entered into an agreement under section 12.
FRDC means the Fisheries Research and Development Corporation established under section 8 of the Research and Development Act.
levy means:
(a) levy imposed by the
Prawn Boat Levy Act 1995 ; or(b) charge imposed by the
Prawn Export Charge Act 1995 .
levy payer means a person who has paid, or is liable to pay, levy.
mariculture installation means a fixed or movable floating structure used for the purpose of enclosing a population of prawns so that they are able to be reared and harvested.
net weight , in relation to a sea‑caught prawn product, means the weight of the sea‑caught prawns or parts of sea‑caught prawns:
(a) included in the product; or
(b) used in the manufacture or preparation of the product.
organisation means:
(a) a body corporate; or
(b) an unincorporated body of persons.
prawn means a decapod crustacean of the family Penaeidae, Caridae or Metanephropidae and included in:
(a) a species listed in the Schedule; or
(b) a species prescribed by the regulations for the purposes of this definition.
R&D plan , in relation to FRDC, has the same meaning as in the Research and Development Act.
Research and Development Act means thePrimary Industries and Energy Research and Development Act 1989 .
sea includes marine and tidal waters within the limits of a State or an internal Territory, but does not include waters enclosed by means of a mariculture installation.
sea‑caught prawn means a prawn that:
(a) has been taken from the sea; and
(b) has not been kept alive for the purposes of growth or propagation after being taken from the sea.
sea‑caught prawn product means
(a) any product that includes, in whatever form, a sea‑caught prawn or a part of a sea‑caught prawn; or
(b) any product in the manufacture or preparation of which a sea‑caught prawn or a part of a sea‑caught prawn has been used.
State includes the Northern Territory and Norfolk Island.
(1) This Act binds the Crown in right of the Commonwealth, of each of the States and of the Australian Capital Territory.
(2) Nothing in this Act renders the Crown, in any of its capacities, liable to be prosecuted for an offence.
(1) In addition to the functions conferred on FRDC by or under the Research and Development Act, FRDC has the function of providing funds for approved prawn export promotion activities.
(2) An activity is an approved prawn export promotion activity if:
(a) it relates to the promotion of the export of sea‑caught prawns, parts of sea‑caught prawns or sea‑caught prawn products; and
(b) it is consistent with FRDC’s R&D plan; and
(c) it has been approved by the prescribed industry organisation.
For the purposes of this Act, the prescribed industry organisation is:
(a) the Australian Prawn Promotion Association Limited; or
(b) if the regulations prescribe another organisation for the purposes of this section, that organisation.
(1) Section 13, Division 3 of Part 2 and section 28 of the Research and Development Act have effect as if an approved prawn export promotion activity were an R&D activity within the meaning of that Act.
(2) FRDC must not submit to the Minister an R&D plan or an annual operational plan that includes provision relating to approved prawn promotion activities unless the provision has been approved by the prescribed industry organisation.
(1) There is payable to FRDC an amount equal to each amount received by the Commonwealth as levy or as penalty under section 17.
(2) Money payable under subsection (1) is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
(1) In this section,
levy money means:
(a) money paid to FRDC under section 8; and
(b) money received by FRDC as interest from the investment of money referred to in paragraph (a).
(2) Subject to subsection (4), levy money may be expended only:
(a) for approved prawn export promotion activities; and
(b) for the purpose of meeting costs incurred by the Commonwealth in connection with the collection and recovery of amounts paid to FRDC under section 8; and
(c) for the purpose of meeting the costs incurred by FRDC in performing the function conferred by section 5; and
(d) for the purpose of meeting the costs incurred by the prescribed industry organisation in doing anything for the purposes of this Act.
(3) Levy money is not to be expended for the purpose referred to in paragraph (2)(c) except with the approval of the prescribed industry organisation.
(4) Levy money not immediately required for approved prawn export promotion activities or for a purpose referred to in paragraph (2)(b), (c) or (d) must be invested:
(a) in securities of, or guaranteed by, the Commonwealth or a State; or
(b) on deposit with a bank; or
(c) in any other way that is consistent with sound commercial practice.
(5) In this section:
bank includes, but is not limited to, an ADI (authorised deposit‑taking institution) within the meaning of theBanking Act 1959 .
Subject to subsection 15(3), levy becomes due for payment in accordance with the regulations.
(1) The Commonwealth may enter into an agreement with a State with respect to the collection in that State, on behalf of the Commonwealth, of levy by that State or by an authority of that State that is specified in the agreement.
(2) Without limiting the generality of the matters that may be provided for in an agreement entered into with a State, such an agreement may provide for:
(a) the persons from whom amounts of levy are to be collected; and
(b) the keeping by the collecting authority of accounts and records in relation to amounts of levy collected by the collecting authority; and
(c) the payment by the collecting authority to the Commonwealth of amounts of levy collected by the collecting authority; and
(d) the giving by the collecting authority to the Minister of information with respect to:
(i) amounts of levy collected by the collecting authority; and
(ii) amounts paid by the collecting authority to the Commonwealth; and
(e) the inspection and audit of accounts and records kept by the collecting authority for the purpose of paragraph (b).
(3) While an agreement entered into under subsection (1) with a State is in force in relation to a particular person:
(a) payment of levy payable by that person must be made to the collecting authority in respect of the agreement; and
(b) if the agreement provides that an authority of that State is to be the collecting authority in respect of the agreement, that authority may retain out of any money payable by it to any person an amount not exceeding an amount of levy that the person is liable to pay.
(4) Where an amount in respect of levy is paid in accordance with paragraph (3)(a) or deducted in accordance with paragraph (3)(b) from money payable to a person, the person is, to the extent of the amount so paid or deducted, discharged from liability to pay levy to the Commonwealth.
(5) The Secretary must give notice in the
Gazette of the entering into an agreement under subsection (1) within 21 days of the making of the agreement.(6) A failure to comply with subsection (5) does not invalidate an agreement.
(7) An agreement under subsection (1) about the collection of levy may require FRDC to pay to the collecting authority that is a party to the agreement amounts, worked out in accordance with the agreement, to reimburse the collecting authority for its expenses incurred in collecting levy.
(8) FRDC is liable to pay those amounts as if it were a party to the agreement.
(1) The Secretary may enter into an agreement with an organisation with respect to the collection of levy by that organisation on behalf of the Commonwealth.
(2) Without limiting the generality of the matters that may be provided for in an agreement entered into with a collecting organisation, such an agreement may provide for:
(a) the State in which amounts of levy are to be collected by the collecting organisation; and
(b) the persons from whom amounts of levy are to be collected by the collecting organisation; and
(c) the keeping by the collecting organisation of accounts and records in relation to amounts of levy collected by the organisation; and
(d) the payment by the collecting organisation to the Commonwealth of amounts of levy collected by the organisation; and
(e) the giving by the collecting organisation to the Minister of information with respect to:
(i) amounts of levy collected by the organisation; and
(ii) amounts paid by the organisation to the Commonwealth; and
(f) the inspection and audit of accounts and records kept by the collecting organisation for the purpose of paragraph (c).
(3) While an agreement entered into under subsection (1) with a collecting organisation is in force in relation to a particular person, payment of levy payable by that person must be made to that organisation.
(4) Where a person pays an amount of levy in accordance with subsection (3), the person is, to the extent of the amount so paid, discharged from liability to pay levy to the Commonwealth.
(5) The Secretary must give notice in the
Gazette of the entering into of an agreement under subsection (1) within 21 days of the making of the agreement.(6) A failure to comply with subsection (5) does not invalidate the agreement.
(7) An agreement under subsection (1) about the collection of levy may require FRDC to pay to the collecting organisation that is a party to the agreement amounts, worked out in accordance with the agreement, to reimburse the collecting organisation for its expenses incurred in collecting levy.
(8) FRDC is liable to pay those amounts as if it were a party to the agreement.
(1) Before entering into:
(a) an agreement under subsection 11(1); or
(b) an agreement under subsection 12(1) with an organisation other than the prescribed industry organisation;
the Secretary is to consult with the prescribed industry organisation in relation to the proposed agreement.
(2) A failure to comply with subsection (1) does not invalidate an agreement.
(1) A person is not liable to pay charge under the
Prawn Export Charge Act 1995 on sea‑caught prawns, parts of sea‑caught prawns or sea‑caught prawn products exported during a particular financial year if the total net weight of such prawns, parts and products exported by the person during that year does not exceed 5,000 kilograms.(2) If the total net weight of sea‑caught prawns, parts of sea‑caught prawns and sea‑caught prawn products exported by a person during a financial year exceeds 5,000 kilograms, subsection (1) has no application in relation to any of those prawns, parts or products.
(3) Charge imposed by the
Prawn Export Charge Act 1995 on sea‑caught prawns, parts of sea‑caught prawns and sea‑caught prawn products exported by a person during a financial year does not become due for payment before the total net weight of all such prawns, parts and products exported by the person during that year exceeds 5,000 kilograms.
The Commonwealth must not, in exercising its powers under subsection 11(1) or 12(1):
(a) discriminate between States or parts of States within the meaning of paragraph 51(ii) of the Constitution; or
(b) give preference to one State or any part thereof over another State or any part thereof within the meaning of section 99 of the Constitution.
If any levy remains unpaid after the time when it becomes due for payment, there is payable by the levy payer to the Commonwealth, by way of penalty accruing from the time the levy becomes due for payment until it is paid in full, an amount worked out as follows:
(a) during the month in which the levy becomes due for payment the amount of penalty accrues at the rate of 2% per month on the levy due;
(b) during the next and each subsequent month the amount of penalty consists of the sum of each amount that accrued during a previous month and the amount accruing during that month at the rate of 2% per month on the sum of the amount of levy then payable and penalty payable at the end of the previous month.
(1) Subject to subsection (2), the Minister or an authorised person may remit the whole or a part of a penalty payable under section 17.
(2) An amount remitted by an authorised person under subsection (1) is not to exceed $2,000 or such lower amount as is specified in the authorisation.
The following amounts may be recovered by the Commonwealth as debts due to the Commonwealth:
(a) amounts of levy that are due for payment;
(b) amounts payable under section 17.
(1) Subject to subsection (2), where an amount referred to in section 19 has been overpaid, the amount overpaid must be refunded by the Commonwealth.
(2) Where, in purported compliance with this Act, an amount equal to the amount overpaid, or part of that amount, has been paid to FRDC, then:
(a) if the Commonwealth has not, under subsection (1), refunded the amount overpaid—that amount must be refunded by FRDC; or
(b) if the Commonwealth has so refunded the amount payable—an amount equal to the amount refunded is to be paid by FRDC to the Commonwealth.
An authorised person may, by notice in writing given to a person, require the person:
(a) to give the authorised person, within such reasonable time as is specified in the notice, such return or information in relation to matters relevant to the operation of this Act as is specified in the notice; and
(b) to verify any such return or information by statutory declaration.
(1) A person must not intentionally or recklessly refuse or fail to give a return or information that the person is required to give by or under this Act.
Penalty: 60 penalty units.
(2) A person is not excused from submitting a return or information on the ground that the return or information might tend to incriminate the person, but any return or information given, and any information or thing (including any document) obtained as a direct or indirect consequence of the giving of the return or information, is not admissible in evidence against the person in:
(a) criminal proceedings other than proceedings for an offence against subsection (1) of this section or an offence against section 137.1 or 137.2 of the
Criminal Code that relates to this Act; or(b) proceedings for recovery of an amount payable by way of penalty under section 17.
(1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by:
(a) a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that it took reasonable precautions, and exercised due diligence, to avoid the conduct.
(3) Where it is necessary to establish, for the purposes of this Act, the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the servant or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate by:
(a) a servant or agent of the person within the scope of his or her actual or apparent authority; or
(b) any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that he or she took reasonable precautions, and exercised due diligence, to avoid the conduct.
(5) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(6) Where:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for the offence.
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of an external Territory.
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
(9) A reference in this section to an offence against this Act includes a reference to:
(a) an offence created by the regulations; and
(b) an offence created by section 5, 6, 7 or 7A, or subsection 86(1), of the
Crimes Act 1914 , being an offence that relates to the regulations.
The Secretary may, in writing:
(a) appoint a person employed by, or in the service of, a collecting authority or a collecting organisation to be an authorised person for the purposes of section 21; and
(b) appoint a person appointed or engaged under the
Public Service Act 1999 to be an authorised person for the purposes of a specified provision of this Act including section 21.
(1) An authorised person may publish:
(a) the name and address of a levy payer; or
(b) information relating to amounts of levy received or receivable by the Commonwealth in any period, including such information relating to a particular State or region;
to any of the following:
(c) the prescribed industry organisation;
(d) a person to whom the Secretary has granted access to such information.
(2) Nothing in subsection (1) permits the publication of information in a manner that enables an amount of levy paid or payable to be identified with a person (including a deceased person).
(1) A person affected by a relevant decision who is dissatisfied with the decision may, by notice in writing given to the Minister, ask the Minister to reconsider the decision.
(2) A request under subsection (1) must be made within 28 days after the day on which the relevant decision first comes to the notice of the person making the request or within such further period as the Minister (either before or after the end of the first‑mentioned period), by written notice given to the person allows.
(3) A request under subsection (1) must set out the reasons for making the request.
(4) The Minister must, within 45 days after receiving a request under subsection (2), reconsider the relevant decision and may make a decision:
(a) in substitution for the relevant decision, whether in the same terms as the relevant decision or not; or
(b) revoking the relevant decision.
(5) Where, as a result of a reconsideration under subsection (3), the Minister makes a decision in substitution for or revoking a relevant decision, the Minister must, by notice in writing served on the person who made the request under subsection (1), inform the person of the result of the reconsideration and give the reasons for his or her decision.
(6) An application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection (4).
(7) A person who makes a relevant decision must give to a person affected by the decision a statement in writing to the effect that a person affected by the decision:
(a) may, if the person is dissatisfied with the decision, seek a reconsideration of the decision in accordance with this section; and
(b) may, subject to the
Administrative Appeals Tribunal Act 1975 , if the person is dissatisfied with a decision made upon that reconsideration, make application to the Administrative Appeals Tribunal for review of that decision.(8) Where the Minister makes a decision under subsection (4) and gives to a person affected by the decision notice in writing of the making of the decision, that notice must include a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person affected by the decision.(9) A failure to comply with the requirements of subsection (7) or (8) in relation to a decision does not affect the validity of the decision.
(10) In this section:
relevant decision means a decision by the Minister or an authorised person to refuse to remit, under subsection 18(1), the whole or part of a penalty under section 17.
(1) The Secretary may, in writing, delegate to the person occupying an office in the Department all or any of his or her powers under this Act other than his or her powers under section 24.
(2) A delegate is, in the exercise of a delegated power, subject to the directions of the Secretary.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The matters that may be prescribed under subsection (1) include, but are not limited to:
(a) making provision in relation to the payment of levy or amounts on account of levy; and
(b) requiring owners of commercial prawn boats, exporters of sea‑caught prawns, parts of sea‑caught prawns or sea‑caught prawn products or any other persons prescribed to make and keep accounts and other records in respect of such boats, prawns, parts or products; and
(c) requiring owners of commercial prawn boats, exporters of sea‑caught prawns, parts of sea‑caught prawns or sea‑caught prawn products or any other persons prescribed to give returns or information for the purposes of this Act; and
(d) prescribing penalties, not exceeding a fine of 10 penalty units, for offences against the regulations.
(3) The Governor‑General must not make regulations for the purposes of the definition of
prawn in section 3 unless the Governor‑General has taken into consideration any recommendation relating to the proposed regulations made to the Minister by the prescribed industry organisation.(4) The prescribed industry organisation must not make a recommendation to the Minister for the purposes of subsection (3) unless the terms of the recommendation were approved at the last annual general meeting of the organisation held before the making of the recommendation.
(5) In this section,
commercial prawn boat has the same meaning as in thePrawn Boat Levy Act 1995 .
(1) Subject to subsection (2), the regulations may make provision for or in relation to empowering the Minister to make orders with respect to any matter for or in relation to which provision may be made by the regulations.
(2) An order must not be made prescribing any penalty.
(3) Sections 48, 48A, 48B, 49, 49A and 50 of the
Acts Interpretation Act 1901 apply in relation to orders as if references to regulations were references to orders and references to an Act were references to regulations.(4) An order is not to be taken to be a statutory rule within the meaning of the
Statutory Rules Publication Act 1903 , but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to an order in like manner as they apply in relation to a statutory rule.(5) For the purposes of the application of subsection 5(3B) of the
Statutory Rules Publication Act 1903 in accordance with subsection (4), the reference in the first‑mentioned subsection to the Minister specified in that subsection is to be read as a reference to a Minister administering this Act.(6) An order is an enactment for the purposes of the
Administrative Appeals Tribunal Act 1975 .(7) Subsections 28(3) and (4) apply in relation to orders as if:
(a) a reference to the Governor‑General were a reference to the Minister; and
(b) a reference to regulations were a reference to an order.
Section 3
Brown tiger prawn | |
Grooved tiger prawn | |
Red‑legged banana prawn (also known as Indian banana prawn) | |
Red spot king prawn | |
Western king prawn | |
White banana prawn | |
Blue endeavour prawn | |
Red endeavour prawn | |
Australiensis scampi | |
Boschi’s scampi | |
Velvet scampi |
The
For
all relevant information pertaining to application, saving or transitional
provisions
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
14, 1995 | 28 Mar 1995 | 1 July 1995 ( | ||
152, 1997 | 24 Oct 1997 | Schedule 2 (item 1087): 1 Jan 1998 ( | — | |
48, 1998 | 29 June 1998 | Schedule 1 (item 131): 1 July 1998 ( | — | |
75, 1998 | 30 June 1998 | S. 1 and Schedule 1: 28 July 1998 Ss. 2, 3, Schedule 2 (item 1) and Schedule 3 (item 1): 1 July 1997 Remainder: 1 July 2001 | S. 4 | |
146, 1999 | 11 Nov 1999 | Schedule 1 (item 735): 5 Dec 1999 ( | — | |
137, 2000 | 24 Nov 2000 | Ss. 1‑3 and Schedule 1 (items 1, 4, 6, 7, 9‑11, 32): Royal Assent Remainder: 24 May 2001 | Sch. 2 (items 418, 419) |
(a) ThePrawn Export Promotion Act 1995 was amended by Schedule 2 (item 1087) only of theAudit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:
(2) Schedules 1, 2 and 4 commence on the same day as the
Financial Management and Accountability Act 1997 .
(b) ThePrawn Export Promotion Act 1995 was amended by Schedule 1 (item 131) only of theFinancial Sector Reform (Consequential Amendments) Act 1998, subsection 2(2) of which provides as follows:
(2) Subject to subsections (3) to (14), Schedules 1, 2 and 3 commence on the commencement of the
Australian Prudential Regulation Authority Act 1998 .
(c) ThePrawn Export Promotion Act 1995 was amended by Schedule 1 (item 735) only of thePublic Employment (Consequential and Transitional) Amendment Act 1999 , subsections 2(1) and (2) of which provide as follows:
(1) In this Act,
commencing time means the time when thePublic Service Act 1999 commences.(2) Subject to this section, this Act commences at the commencing time.
| |
Provision affected | How affected |
S. 9........................................... | am. No. 48, 1998 |
S. 14......................................... | rep. No. 152, 1997 |
S. 22......................................... | am. No. 137, 2000 |
S. 24......................................... | am. No. 146, 1999 |
Fisheries Legislation Amendment Act (No. 1) 1998 (No. 75, 1998)
Despite the repeal by this Act of the
Prawn Boat Levy Act 1995 , thePrawn Export Charge Act 1995 and thePrawn Export Promotion Act 1995 :
(a) the Act repealed; and
(b) any regulation made under or for the purposes of the Act repealed; and
(c) any agreement entered into between the Commonwealth and a State or Territory under the Act repealed;
continue to apply in relation to a levy or charge imposed before the repeal as if the repeal had not happened.
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)
(1) Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:
(a) an offence committed before the commencement of this item; or
(b) proceedings for an offence alleged to have been committed before the commencement of this item; or
(c) any matter connected with, or arising out of, such proceedings;
as if the amendment or repeal had not been made.
(2) Subitem (1) does not limit the operation of section 8 of the
Acts Interpretation Act 1901 .
If:
(a) a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and
(b) any or all of those other provisions are repealed by this Schedule; and
(c) the first‑mentioned provision is amended by this Schedule;
the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.
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