EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 187
Issued by the Authority of the Minister for Primary Industries and Energy
AUSTRALIAN HORTICULTURAL CORPORATION ACT 1987
AUSTRALIAN HORTICULTURAL CORPORATION
(APPLE AND PEAR EXPORT CONTROL) REGULATIONS
Section 121 of the Australian Horticultural Corporation Act 1987 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an Act is expressed to confer power to make regulations, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power, or of bringing the instrument into effect, before the Act concerned comes into operation, as if it had come into operation.
Subsection 117(1) of the Act provides that the regulations may make provision for or in relation to empowering the Australian Horticultural Corporation (AHC) to control the export from Australia of horticultural products and, in particular, may empower the AHC to prohibit the export from Australia of horticultural products.
Subsection 117(2) provides that the regulations may empower the AHC to prohibit the export of horticultural products absolutely, to a specified place and/or unless specified conditions or restrictions are complied with.
Subsection 117(3) provides that regulations made for the purposes of subsection 117(1):
(a) may provide that the export of horticultural products, or the export of horticultural products to a specified place, is prohibited unless a licence, permission, consent or approval to export the products has been granted by the Corporation as prescribed by the regulations; and
(b) may make provision for and in relation to:
(i) the granting of a licence or permission to export horticultural products subject to compliance with conditions or restrictions, either before or after the export of the products, by the person to whom the licence or permission is granted;
(ii) the revocation of a licence or permission, being a licence or permission that is granted subject to a condition or restriction to be complied with by a person, for contravention by the person of the condition or restriction, whether or not the person is charged with an offence in respect of the contravention.
Subsection 117(4) provides that conditions or restrictions imposed under subsections 117(2) and 117(3) may relate to
(a) the price, quality, packaging, labelling, description, form of consignment, carriage or insurance of horticultural products;
(b) the commission and fees charged by exporters and others;
Subsection 117(5) provides that the regulations may empower the AHC to charge such fees as it considers necessary to enable it to recover costs that it incurs in controlling the export from Australia of horticultural products.
Section 118 provides that
(1) where
(a) the regulations provide that the export of horticultural products, or the export of horticultural products to a specified place, is prohibited unless a licence, permission, consent or approval to export the products has been granted by the Corporation as prescribed by the regulations; and
(b) a person contravenes that prohibition;
the person is guilty of an offence.
(2) The holder of a licence, permission, consent or approval granted by the Corporation under the regulations to export horticultural products (whether or not to a specified place) who, without reasonable excuse, contravenes a condition or restriction to which the licence, permission, consent or approval is subject is guilty of an offence.
Penalty: if the person is a natural person - $10,000; or if the person is a body corporate - $50,000.
The Australian Apple and Pear Corporation (AAPC) will be abolished on the day of proclamation of the Act. Apple and pear related activities, ranging from promotion to export control, previously undertaken by the AAPC will then be transferred to the Australian Horticultural Corporation (AHC). In this regard the Government agreed that the arrangements for control of apple and pear exports be continued as far as possible under the Act. Accordingly, the proposed regulations were adapted from the Apple and Pear Conditions of Export) Regulations made under the Australian Apple and Pear Corporation Act 1973 (AAPC Act). The previous regulations cease to be operative upon proclamation of the Act on 1 August 1988.
The Regulations:
(a) empower the Australian Horticultural Corporation (AHC) to control the export from Australia of apples and pears through the issue of licences and permits, as provided for in section 117 of the AHC Act.
(b) prohibit the export of apples and pears from Australia except by a licensee or a corporation wholly owned by a licensee, to whom a permit has been granted.
(c) require certain returns to be made to the Corporation, in regard to apples and pears, as provided for in section 121(d) of the Act, and set penalties for failing to supply such returns as provided for in section 121(f) of the Act.
Details of the proposed regulations are given in the Attachment.
ATTACHMENT
Details of Regulations
Regulation 1 provides that the regulations may be cited as the Australian Horticultural Corporation (Apple and Pear Export Control) Regulations.
Regulation 2 provides for the commencement of the regulations on the date of commencement of Part V of the Australian Horticultural Corporation Act 1987. It is proposed that this will occur on 1 August 1988.
Regulation 3 provides an interpretation and definition of various words and expressions used in the Regulations.
Regulation 4 prohibits the export of apples or pears from Australia except by a person who is a licensee or a corporation wholly owned by a licensee, to whom a permit for that export has been issued.
Regulation 5 prescribes the manner in which a person may apply to the Corporation for a grant to that person of a licence to export apples or pears, and the matters the Corporation is to take into account in considering an application.
Regulation 6 prescribes the procedure to be followed by the Corporation should it refuse to grant a licence.
Regulation 7 prescribes the manner in which a licensee may apply to the Corporation for the grant to that licensee, or a corporation wholly owned by that licensee, for a permit to export apples and pears. The Corporation may grant a permit subject to conditions and restrictions specified in the permit. In considering an application for a permit the Corporation is to take into account matters prescribed in orders.
Regulation 8 prescribes the procedure to be followed should the Corporation refuse to grant a permit.
Regulation 9 prohibits the export of apples or pears except under a contract containing terms and conditions of shipment and payment in accordance with those specified in the permit for that export.
Regulation 10 prohibits the export of apples or pears except at a price or rate of advance payment not less than any minimum price or rate of advance payment specified in the permit for that export.
Regulation 11 prohibits the export of apples or pears by a licensee on behalf of the owner of the fruit, except where the rate of commission charged by the licensee is not greater than any maximum rate of commission specified in the permit for that export.
Regulation 12 prohibits the export of apples or pears except in accordance with any quality, colour, shape, size, packaging or labelling requirements specified in the permit for that export.
Regulation 13 allows the Corporation to revoke a licence where a licensee fails to export any apples or pears between 1 January and 31 August of a year, or exports less than 5% of the prescribed quantity between 1 January of a year and 31 August of the following year, except where the licensee was unable to do so for a prescribed reason.
Regulation 14 prescribes other reasons for which the Corporation may revoke a licence, such as exporting without a permit, contravening conditions of a permit, failing to pay fees, failing to lodge a return, exporting to or from a port not specified on the licence or providing misleading information.
Regulation 15 prescribes the following procedure for the revocation of a licence. The Corporation shall require the licensee to show cause in writing why the licence should not be revoked, and if the licensee fails to show adequate cause, the licence shall be revoked.
Regulation 16 provides for an application to be made to the Administrative Appeals Tribunal for a review of decisions made by the Corporation in respect of the grant, refusal to grant, or revocation, of a licence or permit.
Regulation 17 provides for the Corporation to conduct an annual review of the export performance of each licensee.
Regulation 18 provides for the Corporation to charge fees in order to recover costs incurred in controlling the export of apples or pears.
Regulation 19 requires prescribed persons to lodge such returns as required by the Corporation and impose a penalty of a fine not exceeding $1000 for a person, or $5000 for a body corporate.
Regulation 20 prescribes the procedure by which a notice given under these Regulations is to be served on a licensee or other person.