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

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

Statutory Rules 1992 No. 441 as amended

made under the

Primary Industries Levies and Charges Collection Act 1991, the Horticultural Levy Act 1987 and the Horticultural Export Charge Act 1987

Consolidated as in force on 4 August 1999

(includes amendments up to SR 1998 No. 148)

Prepared by the Office of Legislative Drafting,

Attorney-General’s Department, Canberra

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

Statutory Rules 1992 No. 441 as amended

made under the

Primary Industries Levies and Charges Collection Act 1991, the Horticultural Levy Act 1987 and the Horticultural Export Charge Act 1987

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1Citation[see Note 1]

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

2Commencement

 These Regulations commence on 1 January 1993.

3Incorporation

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

4Interpretation

 In these Regulations, unless the contrary intention appears:

annual return means a return lodged under subregulation 22 (1), 23 (2) or (3), or 24 (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 36 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.

charge means charge imposed under the Export Charge Act.

class, in relation to apples or pears, means a class of apples or pears specified in column 2 of Schedule 1.

Collection Act means the Primary Industries Levies and Charges Collection Act 1991.

Export Charge Act means the Horticultural Export Charge Act 1987.

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 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.

monthly return means a return lodged under regulation 14.

pear means fruit of any species of the genus Pyrus, except fruits of the species Pyrus pyrifolia (nashi).

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 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 except a sale to a buying agent or a first purchaser or through a selling agent.

specified amount means:

• (a)

  $1,000;

• (b)

  if a determination under regulation 27 is in force — the amount specified in the determination.

4AOwner etc and exporter are producers

 Apples and pears are prescribed for paragraphs (b) and (g) of the definition of producer in subsection 4 (1) of the Collection Act.

5Levy year

 For the purposes of the definition of levy year in subsection 4 (1) of the Collection Act, a calendar year is the prescribed period.

6Leviable horticultural products

 Apples and pears are prescribed for the purposes of the definition of leviable horticultural products in section 5A of the Levy Act.

7Chargeable horticultural products

 Apples and pears are prescribed for the purposes of the definition of chargeable horticultural products in section 5A of the Export Charge Act.

8Eligible Industry Body

• (1)

  For the purposes of subsections 14 (6) and (7) of the Levy Act, the eligible industry body for apples and pears is the Australian Apple and Pear Growers’ Association.

• (2)

  For the purposes of subsections 14 (6) and (7) of the Export Charge Act, the eligible industry body for apples and pears is the Australian Apple and Pear Growers’ Association.

9What apples and pears are exempt from levy?

 For the purposes of paragraph 13 (2) (b) of the Levy Act, the following apples and pears 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 the producer for those purposes in that year is not more than 500 boxes;

• (c)

  apples, or pears, sold for stockfood;

• (d)

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

• (e)

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

10How much levy is payable?

• (1)

  For the purposes of section 8 of the Levy Act, the rate of levy in relation to a class of apples or pears is the rate specified for that class in column 3 of Schedule 1.

• (2)

  For the purposes of section 9 of the Levy Act, the rate of levy in relation to a class of apples or pears is the rate specified for that class in column 4 of Schedule 1.

11How much charge is payable?

• (1)

  For the purposes of section 8 of the Export Charge Act, the rate of charge is:

  • (a)

    in relation to apples, the rate specified for apples in column 3 of Schedule 2; and

  • (b)

    in relation to pears, the rate specified for pears in column 3 of Schedule 2.

• (2)

  For the purposes of section 9 of the Export Charge Act, the rate of charge is:

  • (a)

    in relation to apples, the rate specified for apples in column 4 of Schedule 2; and

  • (b)

    in relation to pears, the rate specified for pears in column 4 of Schedule 2.

12When is levy due for payment?

 For the purposes of section 6 of the Collection Act, the levy payable on apples or pears is due for payment on the last day for lodging a return for the apples or pears.

Note   For penalty, see section 15 of the Collection Act.

13When is charge due for payment?

 For the purposes of section 6 of the Collection Act, the charge payable on apples or pears is due for payment on the last day for lodging a return for the apples or pears.

Note   For penalty, see section 15 of the Collection Act.

14Who must lodge a monthly return?

 The following persons must lodge a return for a month:

• (a)

  a first purchaser who purchases apples or pears in the month; and

• (b)

  a buying agent who buys apples or pears in the month; and

• (c)

  a selling agent who sells apples or pears in the month; and

• (d)

  a person who exports apples or pears in the month.

Note   For penalty, see section 24 of the Collection Act.

15When must monthly returns be lodged?

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

Note   For penalty, see section 24 of the Collection Act.

16What must be included in a monthly return?

• (1)

  A monthly return must:

  • (a)

    set out all the particulars referred to in subregulations (2), (3) and (4) 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 has a post office box address or a post office bag address — that address; and

  • (ba)

    if the person is a company — the person’s Australian Company Number under the Corporations Law; and

  • (c)

    the month to which the return relates.

• (3)

  If the person lodging the return is a first purchaser, buying agent or selling agent, the following additional particulars must be included in the return:

  • (a)

    the quantity of each class of apples, and of pears, purchased, sold or used by that person in that month; and

  • (b)

    the amount of levy payable for each of those quantities; and

  • (c)

    the total of the amounts of levy payable for the month.

• (4)

  If the person lodging the return is a person who has exported apples or pears, the following additional particulars must be included in the return:

  • (a)

    the quantity of apples, and of pears, exported in that month; and

  • (b)

    the amount of charge payable for apples, and for pears; and

  • (c)

    the total of the amounts of charge payable for the apples and pears.

17Exemption from duty to lodge monthly returns

• (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 19 (2); or

  • (b)

    the person has applied under regulation 18 for exemption 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 20 (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, a buying agent or a selling agent may apply for exemption from the duty to lodge monthly returns for a calendar year if that person has reason to believe that the levy payable by the person for the year will be less than the specified amount.

• (3)

  A person who exports apples or pears in a calendar year may apply for exemption from the duty to lodge monthly returns for the year if the person has reason to believe that the charge payable by the person for the year will be less than the specified amount.

18Application for exemption

• (1)

  An application for an exemption must set out:

  • (a)

    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; and

  • (b)

    if the applicant has a post office box address or a post office bag address — that address.

• (2)

  If the applicant is a first purchaser, buying agent or selling agent, the application must include:

  • (a)

    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

  • (b)

    a statement that the applicant believes that the amount of the liability will be less than the specified amount.

• (3)

  If the applicant is a person who exports apples or pears, the application must include:

  • (a)

    a statement that the applicant is a producer or exporting agent who will, or may, incur a liability under subsection 7 (3) of the Collection Act in the calendar year to which the application relates; and

  • (b)

    a statement that the applicant believes that the amount of the liability will be less than the specified amount.

• (4)

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

19Grant of exemption

• (1)

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

  • (a)

    the amount of levy or charge payable by the applicant in the preceding 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 under subsection 7 (1) or (3) of the Collection Act 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.

20Continuation of exemption

• (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 levy or charge payable by the person 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 under subsection 7 (1) or (3) of the Collection Act in the following calendar year.

• (3)

  The Secretary must:

  • (a)

    within 14 days after the annual return is lodged — decide whether to continue the exemption for the next 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.

21When must monthly returns be lodged if exemption refused or not continued?

 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 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.

22Annual returns — producers

• (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;

    • (iia)

      if the producer is a company — the producer’s Australian Company Number under the Corporations Law;

    • (iii)

      the calendar year to which the return relates;

    • (iv)

      the quantity of each class of apples, and of pears, sold or used in that year;

    • (v)

      the amount of levy payable for each of those quantities;

    • (vi)

      the sum of the amounts of levy payable; 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.

23Annual returns — first purchasers, buying agents and selling agents

• (2)

  A 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;

    • (iia)

      if the person is a company — the person’s Australian Company Number under the Corporations Law;

    • (iii)

      the calendar year to which the return relates;

    • (iv)

      the quantity of each class of apples, and of pears, purchased or sold in that year;

    • (v)

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

    • (vi)

      the amount of levy previously paid in that calendar year;

    • (vii)

      the net amount of levy payable for all classes of apples and pears (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.

24Annual returns — persons who export apples or pears

• (1)

  A person must lodge an annual return on or before 28 February in any calendar year if, in the preceding calendar year the person exported any apples or pears and was exempt from the duty to lodge a monthly return.

  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 person, not being the address of a post office box or a post office bag;

    • (ii)

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

    • (iia)

      if the person is a company — the person’s Australian Company Number under the Corporations Law;

    • (iii)

      the calendar year in which apples or pears were exported;

    • (iv)

      the quantity of apples, and of pears, exported in that calendar year;

    • (v)

      the amount of charge payable for apples, and for pears;

    • (vii)

      the sum of the amounts of charge payable; and

  • (b)

    include a declaration, signed by the person or by a person authorised 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.

25Records to be kept

• (1)

  A producer must keep records showing the quantity of each class of apples, and of pears, used by the producer or sold by retail sale by the producer in each month.

  Penalty:   10 penalty units.

• (2)

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

  Penalty:   10 penalty units.

• (3)

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

  Penalty:   10 penalty units.

• (4)

  A person who exports apples or pears must keep records showing the quantity of apples, and of pears, exported each month.

  Penalty:   10 penalty units.

• (5)

  A person required to keep records in relation to apples or pears must retain the records for 5 years from the date on which the person was required to lodge a return for the apples or pears.

  Penalty:   10 penalty units.

26Review of decisions

• (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 19 (2) (a); or

  • (b)

    refusing to continue an exemption under paragraph 20 (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.

27Determination by the Minister

 The Minister may determine an amount for the purposes of paragraph (b) of the definition of specified amount in regulation 4.

28Orders

 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 27.

29Repeal of Primary Industry Levies and Charges (Apple and Pear) Regulations and the Primary Industries Levies and Charges Collection (Horticultural Export Charge) Regulations

 Statutory Rules 1991 Nos. 197, 208, 277, 403 and 404 and 1992 Nos. 146, 147 and 247 are repealed.

Schedule 1Rates of levy

(regulations 4 and 10)

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Column 1	Column 2	Column 3	Column 4
Item	Class of apples or pears	Rate for the purposes of section 8 of the Levy Act	Rate for the purposes of section 9 of the Levy Act
1.	Apples, other than juicing apples or processing apples	20 cents per box	6.5 cents per box
2.	Pears, other than juicing pears or processing pears	22.5 cents per box	6 cents per box
3.	Juicing apples	$2.00 per tonne	65 cents per tonne
4.	Juicing pears	$2.25 per tonne	60 cents per tonne
5.	Processing apples	$4.00 per tonne	$1.30 per tonne
6.	Processing pears	$4.50 per tonne	$1.20 per tonne

Schedule 2Rates of charge

(regulation 11)

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Column 1	Column 2	Column 3	Column 4
Item	Apples or pears	Rate for the purposes of section 8 of the Export Charge Act	Rate for the purposes of section 9 of the Export Charge Act
1.	Apples	20 cents per box	6.5 cents per box
2.	Pears	22.5 cents per box	6 cents per box

Notes to the Primary Industries Levies and Charges Collection (Apple and Pear) Regulations

Note 1

The Primary Industries Levies and Charges Collection (Apple and Pear) Regulations (in force under the Primary Industries Levies and Charges Collection Act 1991, the Horticultural Levy Act 1987 and the Horticultural Export Charge Act 1987) as shown in this consolidation comprise Statutory Rules 1992 No. 441 amended as indicated in the Tables below.

Table of Statutory Rules

Year and number	Date of notification in Gazette	Date of commencement	Application, saving or transitional provisions
1992 No. 441	24 Dec 1992	1 Jan 1993
1993 No. 311	25 Nov 1993	1 Jan 1994	—
1995 No. 83	9 May 1995	1 June 1995	—
1997 No. 51	12 Mar 1997	1 Apr 1997	—
1998 No. 148	25 Jun 1998	1 Aug 1998 (see r. 1 and Gazette 1998, No. S382)	—

Table of Amendments

ad. = added or inserted  am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
R. 4..........................................	am. 1995 No. 83; 1997 No. 51
R. 4A.......................................	ad. 1998 No. 148
R. 9..........................................	am. 1995 No. 83
R. 14........................................	am. 1995 No. 83
Rr. 16, 17................................	am. 1995 No. 83
Rr. 22–25................................	am. 1995 No. 83
Schedules 1, 2.......................	rs. 1993 No. 311
am. 1995 No. 83; 1997 No. 51