Primary Industries Levies and Charges (Apple and Pear) Regulations (Cth)

        

Statutory

Rules1991No. 197 1

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Primary Industries Levies and Charges (Apple and Pear) Regulations

 

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 4 of the Acts Interpretation Act 1901, make the following Regulations under the Primary Industries Levies and Charges Collection Act 1991 and the Horticultural Levy Act 1987.

 Dated 27 June 1991.

  BILL HAYDEN

 Governor-General

 By His Excellency’s Command,

R. McMULLAN

Parliamentary Secretary to the Treasurer

for and on behalf of the

Minister of State for Primary Industries and Energy

____________

Citation

 1.These Regulations may be cited as the Primary Industries Levies and Charges (Apple and Pear) Regulations.

Incorporation

2. The Primary Industries Levies and Charges Collection Regulations are incorporated and must be read as one with these Regulations.

Interpretation

3.

In these Regulations, unless the contrary intention appears:

“annual return” means a return referred to in subregulation 15 (1) or 16 (1);

“apples” means fruit of any species of the genus Malus;

“apple juice” includes:

(a)

cider; and

(b)

any beverage distilled from apples;

“box”, in relation to apples or pears, means:

(a)

a container of a kind:

 (i) ordinarily used in the Australian horticultural industry for packing apples or pears; and

 (ii) ordinarily known in that industry as a bushel box or 30 litre box; or

(b)

if the apples or pears are not packed in a container of the kind referred to in paragraph (a)—18 kilograms;

“class”, in relation to apples, pears or nashi, means a class of apples, pears or nashi specified in column 2 of the Schedule;

“fruit juice” includes:

• (a)

  apple juice; and

• (b)

  pear juice;

“juicing apples” means apples:

• (a)

  sold by the producer to a buying agent or a first purchaser, or through a selling agent, for use in the production in Australia of fruit juice; or

• (b)

  used by the producer in the production in Australia of fruit juice;

“juicing nashi” means nashi:

• (a)

  sold by the producer to a buying agent or a first purchaser, or through a selling agent, for use in the production in Australia of fruit juice; or

• (b)

  used by the producer in the production in Australia of fruit juice;

“juicing pears” means pears:

• (a)

  sold by the producer to a buying agent or a first purchaser, or through a selling agent, for use in the production in Australia of fruit juice; or

• (b)

  used by the producer in the production in Australia of fruit juice;

“Levy Act” means the Horticultural Levy Act 1987;

“levy year”, in relation to apples, pears and nashi, means a calendar year;

“minor first purchaser” means a person:

• (a)

  who, because of a business carried on by the person, is a first purchaser of apples, or pears, of a class; and

• (b)

  whose business referred to in paragraph (a) is not wholly or substantially a business of selling or processing horticultural products;

  “monthly return” means a return referred to in subregulation 9 (1);

  “nashi” means fruit of the species Pyrus pyrifolia;

  “pear” means fruit of any species of the genus Pyrus;

“pear juice” includes:

• (a)

  perry; and

• (b)

  any beverage distilled from pears;

“processing apples” means apples:

• (a)

  sold by the producer to a buying agent or a first purchaser, or through a selling agent, for use in the production in Australia of a processed product other than fruit juice; or

• (b)

  used by the producer in the production in Australia of a processed product other than fruit juice;

“processing nashi” means nashi:

• (a)

  sold by the producer to a buying agent or a first purchaser, or through a selling agent, for use in the production in Australia of a processed product other than fruit juice; or

• (b)

  used by the producer in the production in Australia of a processed product other than fruit juice;

“processing pears” means pears:

• (a)

  sold by the producer to a buying agent or a first purchaser, or through a selling agent, for use in the production in Australia of a processed product other than fruit juice; or

• (b)

  used by the producer in the production in Australia of a processed product other than fruit juice;

“retail sale”, in relation to a sale of apples or pears by a producer, means a sale by the producer of the apples or pears other than a sale to a buying agent or a first purchaser or through a selling agent;

“specified amount” means:

(a)

$1,000; or

• (b)

  if a determination under regulation 19 is in force—the amount specified in the determination;

“tray”, in relation to nashi, means:

(a)

a container of a kind:

 (i) ordinarily used in the Australian horticultural industry for packing nashi; and

 (ii) ordinarily known in that industry as a single layer tray; or

(b)

if the nashi are not packed in a container referred to in paragraph (a)—4 kilograms.

Leviable horticultural products

4.

The apples, pears, and nashi, specified in column 2 in the Schedule are prescribed horticultural products for the purposes of the definition of “leviable horticultural products” in section 5a of the Levy Act.

Eligible industry bodies

5.

For the purposes of subsections 14 (6) and (7) of the Levy Act, the eligible industry body:

• (a)

  for nashi, juicing nashi and processing nashi—is the Australian Nashi Growers’ Association; and

• (b)

  for each other class—is the Australian Apple and Pear Growers’ Association.

What apples and pears are exempt from levy?

6.

For the purposes of paragraph 13 (2) (b) of the Levy Act, the following leviable horticultural products are exempt from levy:

(a)

apples, or pears:

 (i) sold in a calendar year by the producer by retail sale; or

 (ii) used in a calendar year by the producer in the production of fruit juice or any other processed product;

 if the total of the quantities of apples or pears or both sold or used by that producer for those purposes in that year is not more than 500 boxes;

(b)

apples, or pears, purchased in a calendar year by a minor first purchaser if the total quantity of apples or pears or both is not more than 500 boxes;

(c)

apples sold for stockfood;

(d)

pears sold for stockfood;

(e)

processing pears on which levy is payable under the Dried Fruits Levy Act 1971;

(f)

processing pears, or juicing pears, used in the production of canned fruit.

How much levy is payable?

7.

In relation to a class of apples or pears specified in an item in the Schedule:

• (a)

  the rate of levy for the purposes of section 8 of the Levy Act is 90% of the rate specified in the item; and

• (b)

  the rate of levy for the purposes of section 9 of the Levy Act is 10% of the rate specified in the item.

When is levy due for payment?

8. For the purposes of section 6 of the Collection Act, the amount of levy payable on apples, pears, or nashi, specified in column 2 of the Schedule :

• (a)

  sold by a producer:

 (i) to a first purchaser (except a minor first purchaser) or a buying agent; or

 (ii) through a selling agent;

 is due for payment on the last day for lodging the return in relation to the apples, pears, or nashi; and

 (b) sold by the producer by retail, or used by the producer in the production in Australia of fruit juice or another processed product, is payable on 28 February in the year following the calendar year in which the apples, pears or nashi were sold or used.

[NOTE:  for penalty, see section 15 of the Collection Act]

Who must lodge a monthly return?

9.

(1)  The following persons must lodge a monthly return:

• (a)

  a first purchaser (except a minor first purchaser) who purchases apples or pears in a month;

(b)

a selling agent who sells apples or pears in a month.

[NOTE:  For penalty, see section 24 of the Collection Act]

When must monthly returns be lodged?

10.

A person who is required to lodge a monthly return must do so on or before the 28th day of the next month after the month in which the apples or pears were purchased or sold.

[NOTE:  For penalty, see section 24 of the Collection Act]

What must be included in a monthly return?

11.

(1)A return must:

• (a)

  set out all the particulars referred to in subregulation (2) that are applicable to the person lodging the return; and

• (b)

  include a declaration signed by the person that the particulars set out in the return are correct in every material particular; and

• (c)

  be lodged at the office of the Secretary of the Department in Canberra.

(2) The particulars to be included in a return are:

• (a)

  the full name and business address or residential address of the person lodging the return, not being the address of a post office box or post office bag; and

• (b)

  if the person lodging the return has a post office box address or a post office bag address—that address; and

• (c)

  the month in which the apples or pears were purchased, sold or used by that person; and

• (d)

  the quantity:

   (i) of juicing apples; and

   (ii) of juicing pears;

   purchased, sold or used by that person in that month; and

• (e)

  the quantity:

   (i) of processing apples; and

   (ii) of processing pears;

   purchased, sold or used by that person in that month; and

• (f)

  the quantity:

   (i) of juicing nashi; and

   (ii) of processing nashi;

   purchased, sold or used by that person in that month; and

  • (g)

    the quantity:

   (i) of any other apples; and

   (ii) of any other pears;

   purchased, sold or used by that person in that month; and

• (h)

  the amount of levy payable for the month for each quantity of apples, pears or nashi specified in the return under subparagraph (d) (i) and (ii), (e) (i) and (ii), (f) (i) and (ii) or (g) (i) and (ii); and

• (i)

  the total of the amounts of levy payable for those quantities.

Exemption from duty to lodge monthly returns

10.(1)   A person does not have to lodge monthly returns for a calendar year if:

• (a)

  the Secretary has granted the person an exemption for the year under subregulation 12 (2); or

• (b)

  the person has applied for exemption under regulation 11 for the year and has not received notice that the Secretary has refused to grant the exemption; or

• (c)

  the Secretary is required under subregulation 13 (1) to consider whether to continue the person’s exemption and the person has not received notice that the Secretary has refused to continue the exemption.

(2) A first purchaser (except a minor first purchaser), or a buying agent, or a selling agent may apply for exemption from the duty to lodge monthly returns for a calendar year if the first purchaser, or buying agent, or selling agent, has reason to believe that the amount of his or her liability for the year under subsection 7 (1) of the Collection Act will be less than the specified amount.

Application for exemption

11. An application for an exemption must:

• (a)

  set out the following particulars;

   (i) the full name and business address or residential address of the applicant, not being the address of a post office box or post office bag;

   (ii) if the applicant has a post office box address or a post office bag address—that address;

• (b)

  include:

   (i) a statement that the applicant is a first purchaser, or is a buying agent, or is a selling agent, who will, or may, incur a liability under subsection 7 (1) of the Collection Act in the calendar year to which the application relates and;

   (ii) a statement that the applicant believes that the amount of the liability will be less than the specified amount; and

• (c)

  be lodged with the Secretary at the office of the Department in Canberra.

Grant of exemption

12.

(1)  When considering whether to grant or refuse an application for exemption, the Secretary must have regard to :

• (a)

  the amount of levy payable by the applicant under subsection 7 (1) of the Collection Act for the previous calendar year; and

• (b) 

  any information that is available to the Secretary about the amount of the liability that the applicant is likely to incur in the calendar year to which the application relates.

 (2)Within 14 days after a person lodges an application, the Secretary must:

(a)

decide whether to grant or refuse the application; and

• (b)

  give the applicant written notice of the decision addressed to the applicant at the address of the applicant last-known to the Secretary.

Continuation of exemption

13.

(1)  If a person who has been exempted from lodging monthly returns for a calendar year lodges an annual return for that year, the Secretary must consider whether to continue the exemption for the next calendar year.

(2) When considering whether to continue a person's exemption, the Secretary must have regard to:

• (a)

  the amount of the person's liability under subsection 7 (1) of the Collection Act in the previous calendar year; and

• (b)

  any information that is available to the Secretary about the amount of the liability that the person is likely to incur in the following calendar year.

 (3)Within 14 days after a person granted an exemption for a calendar year lodges an annual return for that year, the Secretary must:

• (a)

  decide whether or not to continue the exemption for the following calendar year; and

• (b)

  give the person written notice of the decision addressed to the person at the address of the person last notified to the Secretary.

When must monthly returns be lodged if exemption refused or not continued?

14.

A person who receives notice of a refusal to grant, or of a refusal to continue, an exemption for a calendar year must lodge a monthly return in accordance with subregulations 9 (3) and (4) for each month of the year:

• (a)

  in the case of each month that ended before the person received the notice—within 28 days of receiving the notice; and

• (b)

  in the case of each other month—on or before the 28th day of the next month.

Annual returns—producers

15.

(1)  A producer must lodge an annual return on or before 28 February in any calendar year if, in the preceding calendar year:

(a)

the producer:

 (i) sold apples or pears (or both) by retail sale; or

 (ii) used juicing apples or juicing pears (or both); or

 (iii) used processing apples or processing pears (or both); and

(b)

the total quantity of those apples, pears, juicing apples, juicing pears, processing apples and processing pears is 500 boxes or more.

[NOTE:  For penalty, see section 24 of the Collection Act]

 (2) A return must:

(a)

set out the following particulars:

 (i) the full name and business address or residential address of the producer, not being the address of a post office box or post office bag;

 (ii) if the producer has a post office box address or a post office bag address—that address;

 (iii) the calendar year in which the apples and pears were sold or used;

 (iv) the quantity of apples, of pears, and of nashi sold in that year;

 (v) the quantity of juicing apples used in that year;

 (vi) the quantity of juicing pears used in that year;

 (vii) the quantity of processing apples used in that year;

 (viii) the quantity of processing pears used in that year;

 (ix) the quantity of juicing nashi used in thar year;

 (x) the quantity of processing nashi used in that year;

 (xi) the amount of levy payable for each of those quantities;

 (xii) the sum of the amounts payable for those quantities; and

(b)

include a declaration signed by the person, that the particulars set out in the return are correct in each material particular; and

(c)

be lodged with the Secretary at the office of the Department in Canberra.

Annual returns—first purchasers, buying agents and selling agents

16.  (1)  A minor first purchaser must lodge an annual return on or before 28 February in any calendar year if, in the preceding calendar year, the purchaser purchased 500 boxes or more of apples or pears or both.

[NOTE:  For penalty, see section 24 of the Collection Act]

 (2) A first purchaser (except a minor first purchaser) who is exempt from the duty to lodge monthly returns must lodge an annual return on or before 28 February in any calendar year if, in the preceding calendar year, the first purchaser purchased any apples or pears.

[NOTE:  For penalty, see section 24 of the Collection Act]

 (3) A buying agent or selling agent who is exempt from the duty to lodge monthly returns must lodge an annual return on or before 28 February in any calendar year if, in the preceding calendar year, the agent purchased or sold any apples or pears.

[NOTE:  For penalty, see section 24 of the Collection Act]

 (4) A return must:

• (a)

  set out the following particulars:

   (i) the full name and business address or residential address of the person lodging the return, not being the address of a post office box or post office bag;

   (ii) if the person has a post office box address or a post office bag address—that address;

   (iii) the calendar year in which the apples and pears were purchased or sold;

   (iv) the quantity of each class of apples, of pears, and of nashi, purchased or sold;

   (v) the total of the amounts of levy payable for those quantities; and

   (vi) the amount of levy previously paid in that calendar year; and

   (vii) the net amount of levy payable for each of the quantities referred to in subparagraph (iv) (being the difference between the total referred to in subparagraph (v) and the amount referred to in subparagraph (vi) ); and

• (b)

  include a declaration, signed by the person, that the particulars set out in the return are correct in every material particular; and

• (c)

  be lodged with the Secretary at the office of the Department in Canberra.

Records to be kept

17.

(1)  A producer must keep records for each month showing:

• (a)

  the quantity:

 (i) of juicing apples; and

 (ii) of juicing pears; and

 (iii) of juicing nashi;

 used by the producer in the month; and

• (b)

  the quantity:

 (i) of processing apples; and

 (ii) of processing pears; and

 (iii) of processing nashi;

 used by the producer in the month; and

• (c)

  the quantity:

 (i) of any other apples; and

 (ii) of any other pears; and

 (iii) of any other nashi;

 sold by the producer by retail sale in the month.

 Penalty: $1,000.

 (2) A first purchaser of apples or pears must keep records showing the quantity of each class of apples, of pears, and of nashi, purchased from a producer in each month.

• Penalty:

  $1,000.

 (3) A buying agent and a selling agent of apples or pears must keep records showing the quantity of each class of apples, of pears, and of nashi, purchased or sold in each month.

• Penalty:

  $1,000.

(4)

The records specified in subregulations (1), (2), (3) and (4) must be kept by the person making the record for a period of 5 years commencing on the date on which the person is required to lodge a return for the apples or pears.

Penalty:

$1000.

Review of decisions

18.

(1)  Application may be made to the Administrative Appeals Tribunal for the review of a decision of the Secretary:

• (a)

  refusing to grant an exemption under paragraph 12 (2) (a); or

• (b)

  refusing to continue an exemption under paragraph 13 (3) (a).

 

 (2) When the Secretary gives notice of a decision mentioned in subregulation (1), the notice must include a statement to the effect:

• (a)

  that, subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for a review of the decision to which the notice relates; and

• (b)

  that a person whose interests are affected by the decision may request a statement under section 28 of that Act.

 (3) A failure to comply with subregulation (2) in relation to a decision does not affect the validity of the decision.

Determination by the Minister

19. The Minister may determine an amount for the purposes of paragraph (b) of the definition of “specified amount” in regulation 3.

Orders

20.

Subject to section 31 of the Collection Act, the Minister may make orders, not inconsistent with that Act or these Regulations, specifying an amount, not exceeding $5,000, for the purposes of regulation 19.

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SCHEDULE Regulations 4, 5, 6 and 8

 

RATES OF LEVY

 

Column 1   Item No	Column 2   Class of apples, pears or nashi	Column 3   Rate
1	Apples excluding juicing apples or processing apples	16 cents per box
2	Pears excluding nashi, juicing pears, juicing nashi, processing pears or processing nashi	16 cents per box
3	Nashi excluding juicing nashi or processing nashi	40 cents per tray

 

SCHEDULE—continued

 

Column 1   Item No	Column 2   Class of apples, pears or nashi	Column 3   Rate
4	Juicing apples	$1.60 per tonne
5	Juicing pears excluding juicing nashi	$1.60 per tonne
6	Juicing nashi	$1.60 per tonne
7	Processing apples	$3.20 per tonne
8	Processing pears excluding processing nashi

$3.20 per tonne
9	Processing nashi	$3.20 per tonne

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NOTE

1. Notified in the Commonwealth of Australia Gazette