EXPLANATORY STATEMENT
Statutory Rules 1984 No. 325
Issued by the Authority of the Attorney-General
TRADE PRACTICES (PRIMARY PRODUCTS EXEMPTIONS) REGULATIONS (AMENDMENT)
These Regulations, made under section 172 of the Trade Practices Act 1974 (the Act) which provides the Governor-General with a regulation making power, amend the Trade Practices (Primary Products Exemptions) Regulations.
Paragraph 172(2)(a) of the Act provides (inter alia) that the regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of the Act or of the provisions of the Act specified in the regulations, conduct engaged in by a specified organization or body that performs functions in relation to the marketing of primary products.
These regulations were made following decisions by the Attorney-General after consulting with the Minister for Primary Industry on applications from primary producer marketing bodies seeking either to renew or extend existing exemptions from the Act or to obtain exemption for the first time. All applications were examined in light of guidelines adopted by the Government. A copy of those guidelines is at Attachment A. The regulations also repealed certain regulations which were no longer necessary.
Regulation 1.
Regulation 1 is formal and cites the Trade Practices (Primary Products Exemptions) Regulations as the Principal Regulations..
Regulation 2
This regulation repealed regulations 6, 7 and 8 of the Principal Regulations and substituted new regulations 6, 7 and 8.
Previous regulation 6 was superfluous as the conduct of the Fruit Industry Sugar Concession Committee is specifically authorized by its enabling legislation and is therefore excepted from the application of the Trade Practices Act by virtue of sub-section 51(1) of that Act.
Regulation 7 was repealed as the primary product marketing body to which regulation 7 refers, the Citrus Panel, has been disbanded.
New regulation 6 exempts the Australian Mushroom Growers Association from section 45 of the Act to enable it to negotiate arrangements with New South Wales mushroom processors in relation to recommending prices for, and terms and conditions of, supply of mushrooms by grower members of that Association to those processors. The exemption will operate until 30 September 1989.
New regulation 7 exempts the Australian Oyster Farmers and Producers Association from paragraph 45(1)(b) and sub-paragraphs 45(2) (a) (ii) and 45(2) (b)(ii) of the Act in respect of its recommending to member farmers and producers the prices at which oysters should be sold to processors. The
exemption is be conditional on the price recommendations being arrived at by joint negotiations between growers and processors, taking into account independent advice on production costs. The exemption will operate until 30 September 1989.
New regulation 8 renews and amends the previous exemption under previous regulation 8, for conduct by the Citrus Fruit Marketing Board, the Murray Valley (N.S.W.) Citrus Marketing Board, and the Citrus Management Company Limited.
New regulation 8 differs from the previous regulation in three respects. First, the existing exemption for agreements relating to prices for fruit is replaced by exemption for agreements among marketing authorities, and between marketing authorities and growers (but not packers) in relation to recommended minimum prices for citrus fruit, (sub-paragraphs 8(2)(a)(i), 8(2)(b)(i) and 8(2)(c)(i)).
Secondly, the exemption in relation to recommended minimum prices is extended to arrangements between the marketing authorities and purchasers (wholesalers) (sub-regulation 8(3)).
Thirdly, the exemption is conditional on neither Board using its compulsory vesting powers to coerce growers to participate in the exempted scheme. The exemption will cease to apply until any such coercion ceases (proposed sub-regulation 8(4)).
Section 17 of the Victorian Marketing of Primary Products Act 1958, as amended, provides that, following a Proclamation by the Governor in Council, all Victorian growers’ citrus fruit is the property of the Citrus Fruit Marketing Board. However, the legislation also provides for the Board to exempt fruit from the vesting provisions if growers meet certain conditions regarding marketing. This exempting provision is extensively used because the Victorian industry considers the vesting and
subsequent pooling of fruit to be inappropriate and the marketing scheme, which is exempted from specified provisions of the Trade Practices Act under Regulation 8, is used as the alternative to vesting.
The Murray Valley (NSW) Citrus Marketing Board’s enabling legislation provides for vesting of growers’ fruit but such vesting does not normally take place.
This condition does not limit the conduct the Boards may engage in pursuant to their State enabling legislation but does limit the scope of the Commonwealth exemption so that it only applies where the Boards do not use their vesting powers to coerce growers to participate in the exempted scheme.
The exemption will operate until 30 September 1989.
Regulation 3
This regulation repealed previous regulations 11 and 12 and substituted regulations on the same topics (apples and pears and the Australian Cherry Growers’ Federation respectively).
New regulation 11 applies to the Processed Apple and Pear Committee (PAPC), a sub-committee of the Australian Agricultural Council, which has replaced the now defunct Working Party for Juicing Apples and Pears to which previous regulation 11 applied. The regulation provides an extended exemption from section 45 of the Act to enable the PAPC to arrive at or give effect to understandings with apple and pear growers and processors of apples and pears in relation to recommended minimum prices to be paid to growers for all processing apples and pears other than canning pears, and to enable the PAPC to establish terms and conditions of supply. The exemption will operate until 30 September 1987.
New regulation 12 exempts the Australian Cherry Growers Federation (ACGF) from section 45 of the Act in relation to its making or giving effect to arrangements with individual processors who directly purchase fresh cherries in relation to the quantities of, and recommended prices at, which fresh cherries may be supplied by member growers to those processors. The major difference between the previous regulation 12 and new regulation 12 is that paragraph 12(2)(e) previously exempted the fixing (rather than recommending) of prices, and also extended to arrangements between purchasers (paragraphs 12(b),(c) and (d)) rather than arrangements between the ACGF and individual purchasers. The exemption will operate until 30 September 1989.
Regulation 4
This regulation repealed old regulations 14, 15, 16 and 17 which related to fruit and vegetable grower representative bodies, and consolidated into new regulation 14 the revised exemptions relating to vegetable products. Previous sub-regulation 16(2) and regulations 15 and 17 were no longer necessary, on industries advice, and therefore were repealed without being replaced.
New sub-regulation 14(1) has the effect of limiting the exemption period to 30 September 1989 and defines the term “vegetables”. New sub-regulation 14(2) exempts the New South Wales Livestock and Grain Producers’ Association (LGPA) from section 45 of the Act enabling it to negotiate with individual processors on behalf of grower members producing vegetables in relation to recommended prices for, and terms and conditions of, supply to processors. This replaces the exemption which applied to the LGPA’s predecessor, United Farmers and Woolgrowers’ Association of New South Wales, pursuant to previous sub-regulation 16(3).
New sub-regulation 14(3) provides an exemption for conduct engaged in by the Victorian Farmers and Graziers Association (VFGA) in terms identical to that under sub-section 14(2) in respect of the New South Wales Livestock and Grain Producers Association, except that tomatoes are excluded. This replaces the exemption for the VFGA’s predecessor, the Victorian Farmers’ Union, pursuant to previous regulation 14.
New sub-regulations 14(4) and 14(5) provide exemptions for conduct by the Primary Industry Association of Western Australia and the Tasmanian Farmers and Graziers’ Association respectively, in terms identical to those of proposed sub-regulation 14(2). Neither of these Associations had an exemption under the previous regulation.
New regulation 15 exempts the Australian Macadamia Society from section 45 of the Act to enable it to:
• negotiate on behalf of its members, with processors and marketing companies in relation to recommending prices, processing charges and conditions of supply of macadamia nuts by grower members, and
• enter into agreements with, and on behalf of, its members and any companies engaged in marketing macadamia nuts in relation to the voluntary participation by those members in a scheme of equalization of members’ export and domestic returns.
The exemption will operate until 30 September 1988.
ATTACHMENT A
Guidelines and Procedures for consideration of Applications by Primary Product Marketing Bodies for Exemption from certain provisions of the Trade Practices Act
Procedures
Procedures for the consideration of applications for the granting or renewal from certain provisions of the Trade Practices Act of exemptions for primary product marketing bodies pursuant to the Trade Practices (Primary Products Exemptions) Regulations:
• applications for exemption to be made to the Attorney-General,
• following consideration of applications, Attorney-General’s Department and the Department of Primary Industry prepare a joint report for the Attorney-General’s consideration,
• in preparing the joint report, the Departments identify parties with a possible interest in the application and seek their views, and
• the applicant has the opportunity to respond to views opposing the granting of the exemption.
Guidelines
The following guidelines will be applied when considering exemption applications by primary product marketing bodies:
• Exemptions must be necessary for promoting stability in the production or marketing of primary products, or for purposes connected with export marketing.
• An exempted scheme must be capable of achieving these purposes and involve the least reduction in competition necessary to achieve those objectives.
• Exemptions would operate for a maximum of five years, but would be capable of renewal, where appropriate, following further examination.
• Exemptions would be limited to sections 45, 45B (both dealing with agreements) and 47 (exclusive dealing) (other than s.47(6), (7), (8)(c) and (9)(d)).
• Exemption would not be considered if proceedings under the Act had been commenced in respect of the conduct sought to be exempted.
Only in exceptional or unforeseen circumstances would exemptions be granted outside these guidelines.