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Horticulture Marketing and Research and Development Services Bill 2000

Part 4 Export control

Division 1 Simplified outline

18   Simplified outline

                   The following is a simplified outline of this Part.

The Secretary may declare that a horticultural product is a regulated horticultural product and that a market is a regulated horticultural market in respect of the product (see section 19). The Secretary may also revoke such a declaration (see section 20).

If the Secretary makes such a declaration, it is an offence for a person to export the product to the market unless the person has a licence and complies with any licence conditions (see section 21). The licensing scheme is administered by the industry export control body (see section 22).



 

Division 2 Export control

19   Regulated horticultural products and regulated horticultural markets

             (1)  The Secretary may make an order specifying that, on and after a specified day:

                     (a)  a specified horticultural product is a regulated horticultural product; and

                     (b)  a specified market is a regulated horticultural market in respect of the product.

Note 1:       For further provisions about orders, see section 35.

Note 2:       For the meanings of horticultural product , market and horticultural market , see section 4.

             (2)  The order has effect from a date specified in the order, which must be at least 14 days after the day on which the order is notified in the Gazette .

Note:          An order made under this section must be notified in the Gazette —see section 35 of this Act and section 48 of the Acts Interpretation Act 1901 .

             (3)  The Secretary must cause a copy of the order to be published in a newspaper circulating in each region where the specified horticultural products are grown or exported. The copy must be published within 14 days of being notified in the Gazette .

             (4)  The Secretary must not make an order under this section unless the Secretary is satisfied that the processes:

                     (a)  set out in the deed of agreement relating to the industry export control body; and

                     (b)  specified as being for the purposes of this subsection;

have been complied with.

Note:          For the meanings of deed of agreement , and industry export control body , see section 4.

20   Revocation of orders

             (1)  The Secretary may revoke an order made under section 19 if the Secretary is satisfied that the processes set out in the deed of agreement relating to the industry export control body that are specified as being made for the purposes of this subsection have been complied with.

Note:          For the meanings of deed of agreement , and industry export control body , see section 4.

             (2)  The revocation must be by notice published in the Gazette and has effect from a day specified in the notice.

             (3)  The day specified in the notice must be a later day than the day on which the notice is published.

             (4)  The Secretary must cause a copy of the notice to be published in a newspaper circulating in each region where the specified horticultural products are grown or exported. The copy must be published within 14 days of the notice being published in the Gazette .

21   Prohibitions on certain exports of regulated horticultural products to regulated horticultural markets

             (1)  A person commits an offence if:

                     (a)  the person exports a regulated horticultural product to a regulated horticultural market in respect of that product; and

                     (b)  the person does not have a licence issued in accordance with section 22 to export the product to the market.

Note:          For the meanings of export , regulated horticultural product and regulated horticultural market , see section 4.

Maximum penalty: 180 penalty units.

             (2)  A person commits an offence if:

                     (a)  the person exports a regulated horticultural product to a regulated horticultural market in respect of that product; and

                     (b)  the person has a licence issued in accordance with section 22 to export the product to the market but the export is not in accordance with the conditions of that licence.

Note:          For the meanings of export , regulated horticultural product and regulated horticultural market , see section 4.

Maximum penalty: 60 penalty units.

22   Licences to export regulated horticultural products to regulated horticultural markets

             (1)  The regulations may make provision for, or in relation to, the licensing by the industry export control body of people to export regulated horticultural products to regulated horticultural markets.

Note:          For the meanings of regulated horticultural product and regulated horticultural market , see section 4.

             (2)  Regulations made for the purposes of subsection (1) may make provision for and in relation to:

                     (a)  granting and assigning of a licence; and

                     (b)  granting a licence subject to compliance with conditions (being conditions applying either before or after the export of the products) by the person to whom the licence is granted or any person to whom the licence is assigned (see also subsection (3)); and

                     (c)  varying a licence or a condition of a licence; and

                     (d)  surrendering a licence, including in exchange for granting another licence to the holder of the surrendered licence; and

                     (e)  revoking or suspending a licence that is granted subject to a person complying with a condition, for breach by the person of the condition (whether or not the person is charged with an offence in respect of the contravention); and

                      (f)  review of decisions made under the regulations.

Note 1:       For example, the regulations may make provision for review by the Administrative Appeals Tribunal of the decision.

Note 2:       A person may seek review of certain decisions of the industry export control body under the Administrative Decisions (Judicial Review) Act 1977 .

             (3)  Conditions imposed under paragraph (2)(b) may include, but are not limited to, conditions:

                     (a)  requiring:

                              (i)  the purchaser of horticultural products; or

                             (ii)  a person to whom horticultural products are consigned as an agent or representative of the purchaser or exporter;

                            to be a person approved by the industry export control body;

                     (b)  relating to:

                              (i)  the quality of horticultural products, including their colour, shape, size and other characteristics; or

                             (ii)  the packaging, labelling or description of, or documentation relating to, horticultural products; or

                            (iii)  the form of consignments of horticultural products; or

                            (iv)  the commission and fees charged by exporters and others; or

                             (v)  the carriage or insurance of horticultural products, including contracts for carriage or insurance.

23   Issue of certificates for Australian horticultural products by the industry export control body

                   The industry export control body may issue a certificate certifying a matter in connection with horticultural products if:

                     (a)  the industry export control body is requested to certify as to the matter; and

                     (b)  the industry export control body is satisfied as to the matter.

Note:          For the meaning of horticultural product , see section 4.

24   Powers the Secretary may exercise if there is no industry export control body

             (1)  If no body is the industry export control body, the Secretary may exercise the powers of the industry export control body under sections 22 and 23, and under regulations, and orders, made for the purposes of section 22.

Note:          For information about the power to make orders, see section 35.

             (2)  While the Secretary exercises those powers:

                     (a)  references to the industry export control body in regulations, and orders, made for the purposes of section 22 are taken to be references to the Secretary; and

                     (b)  subsections 19(4) and 20(1) are taken to have no effect; and

                     (c)  references in section 25 to the industry export control body are taken to be references to the Secretary and any delegate of the Secretary; and

                     (d)  references in section 29:

                              (i)  to the industry export body; and

                             (ii)  to its directors;

                            are taken to be references to the Secretary.

             (3)  The regulations may make such provision as is necessary:

                     (a)  for the efficient and effective exercise by the Secretary of the powers of the industry export control body under sections 22 and 23, and under regulations, and orders, made for the purposes of section 22; and

                     (b)  for the payment of fees to the Commonwealth for licences to export regulated horticultural products to regulated horticultural markets; and

                     (c)  for facilitating the transition from the exercise of those powers by the Secretary to their exercise by the new industry export control body (including the transfer to the industry export control body of amounts in respect of fees paid to the Commonwealth under regulations made in accordance with paragraph (b)).

25   Exemptions of the industry export control body and its officers from liability for damages

                   No action, suit or other proceeding for damages lies against the industry export control body or officers of the body for any loss or injury directly or indirectly suffered as a result of anything done, or omitted to be done, in the exercise or performance, or the purported exercise or performance, of:

                     (a)  powers under section 22 or 23; or

                     (b)  powers under regulations, and orders, made for the purposes of section 22;

unless the act or omission was in bad faith.

Note:          For the meaning of officer of the industry export control body , see section 4.

26   Operation of certain laws not affected

                   This Part does not, by implication, affect the operation of any other law relating to export.