EXPLANATORY STATEMENT
STATUTORY RULES 1988 No 34
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 this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
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 or suspension 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;
The Australian Horticultural Corporation (Apple and Pear Export Control) Regulations commenced on 1 August 1988, that is, the date on which Part V of the Australian Horticultural Corporation Act 1987 commenced.
The Regulations amend the Australian Horticultural Corporation (Apple and Pear Export Control) Regulations to:
(a) empower the Australian Horticultural Corporation (AHC) to issue annual permits to export apples and pears instead of permits for each individual export.
(b) remove the provision under which the AHC set a base price for each market and type of fruit exported.
(c) remove the provision under which the AHC could restrict the number of licences issued in a State.
Details of the Regulations are given in the Attachment.
ATTACHMENT A
Details of Australian Horticultural Corporation (Apple and Pear Export Control) Regulations (Amendment)
Regulation 1 provides that the Principal Regulations are the Australian Horticultural Corporation (Apple and Pear Export Control) Regulations.
Regulation 2 amends regulation 3 of the Principal Regulations by substituting a reference to subregulation 7(1) for the reference to subregulation 7(3) in the definition of “permit”. This amendment is made to correct an error in the Principal Regulations.
Regulation 3 amends regulation 4 of the Principal Regulations by omitting “the” from paragraphs (a) and (b). This amendment is necessary as a consequence of the change to annual permits.
Regulation 4 amends regulation 5 of the Principal Regulations by deleting the number of licences in a State from the list of matters which the Corporation shall have regard in the deciding whether to grant a licence.
Sub-regulation 4(b) provides for the Corporation to grant a licence subject to any condition or restriction specified in the licence, not just the ports of destination and departure.
Sub-regulation 4(c) requires the Corporation to inform an applicant for a licence of its decision to grant or refuse a licence within 14 days of making the decision.
Regulation 5 amends regulation 6 of the Principal Regulations consequent to the amendments to regulation 5 of the Principal Regulations.
Regulation 6 repeals regulation 7 of the Principal Regulations and substitutes a regulation which allows the Corporation to grant to a licensee, or a corporation wholly owned by that licensee, an annual permit to export apples and pears. In line with other references in the Principal Regulations, the reference to 28 days for the refusal or grant of a licence has been changed to 30 days. The Corporation is required to inform a licensee, or an applicant for a licence of its decision to grant or refuse a permit within 14 days of making the decision. In considering an application for a permit the Corporation is required to take into account matters prescribed in orders and where a person has previously exported apples or pears, any previous contravention of the regulations or permit, or failure to export a prescribed quantity of fruit.
Regulation 7 amends regulation 8 of the Principal Regulations consequent to the new regulation 7 of the Principal Regulations.
Regulation 8 repeals the prohibition against exporting apples and pears at a lower price than the minimum price set by the Corporation.
Regulation 9 amends regulation 11 of the Principal Regulations to prohibit 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 within the range specified in the permit.
Regulation 10 inserts two new regulations in the Principal Regulations, regulations 11A and 11B.
The new regulation 11A provides for a restriction in a permit requiring the purchaser of exports of apples or pears to a country specified in a permit to be a person approved by the Corporation.
Regulation 11B provides for a restriction in a permit requiring exports to a specified country to comply with restrictions on the kind, quality, colour, shape or size of apple or pear to be exported.
Regulation 11 omits subregulation 12(a) of the Principal Regulations and provides for the Corporation to specify in a permit the allowable range for the number of pieces of fruit in a specified package.
Regulation 12 amends regulation 13 of the Principal Regulations so that it clearly applies to a corporation wholly owned by a licensee.
Sub-regulation 13(3) is amended so that it becomes a condition of a licence that a licensee export or make arrangements to export fruit. Subregulation 12(3A) clearly establishes the Corporation’s power to revoke a licence where no fruit is exported.
Regulation 13 repeals regulation 14 of the Principal Regulations and substitutes a regulation specifying certain conditions applying to a licence, breach of which are grounds for revocation of a licence. It is a condition of a licence that a licensee shall not provide false or misleading information in a return required to be lodged with the Corporation under regulation 19.
Regulation 14 inserts a new regulation 14A, which specifies certain conditions applying to a permit, the breach of which are grounds for revocation or suspension of a permit. The regulation provides that a permit cannot be suspended for longer than three months, the period of contravention of a condition of the permit, or the period of suspension of a licence, whichever is the lesser.
Regulation 15 amends regulation 15 of the Principal Regulations so that it prescribes the method of revoking or suspending a licence or permit.
Regulation 16 amends regulation 16 of the Principal Regulations to provide for the appeal to the Administrative Appeals Tribunal (AAT) of a decision by the Corporation to
(a) grant a licence subject to a condition or restriction
(b) suspend a licence, or
(c) revoke or suspend a permit.
Regulation 17 amends regulation 19 of the Principal Regulations to allow the Corporation to require a person who exports apples or pears to lodge a return setting out specified details of each consignment made during the immediately preceding month.
Regulation 18 is a transitional regulation, providing for appeal to the AAT of a decision made by the Corporation immediately before the commencement of these Regulations to grant a licence for export from or to a port or ports other than the port or ports requested by the applicant.