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Horticulture Marketing and Research and Development Services Bill 2000

Part  5 Miscellaneous provisions

   

27   Injunctions for actionable conduct

Applications for injunctions

             (1)  The Minister may apply to the Federal Court for an injunction if the industry services body or the industry export control body has engaged, engages or proposes to engage in actionable conduct.

Note:          For the meaning of actionable conduct , see section 4.

Prohibitory injunctions

             (2)  The Federal Court may grant an injunction restraining the industry services body or the industry export control body from engaging in actionable conduct:

                     (a)  whether or not it appears to the Federal Court that the body intends to engage again, or to continue to engage, in actionable conduct; and

                     (b)  whether or not the body has previously engaged in actionable conduct;

if the body has engaged, engages or proposes to engage in actionable conduct.

Additional orders with prohibitory injunctions

             (3)  The Federal Court may make an order requiring the industry services body or the industry export control body to do something if:

                     (a)  the Federal Court grants an injunction restraining the body from engaging in actionable conduct; and

                     (b)  in the Federal Court’s opinion it is desirable to make the order.

Mandatory injunctions

             (4)  The Federal Court may grant an injunction requiring the industry services body or the industry export control body to do an act:

                     (a)  whether or not it appears to the Federal Court that the body intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and

                     (b)  whether or not the body has previously refused or failed to do the act or thing;

if the body has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute actionable conduct.

Interim injunctions

             (5)  The Federal Court may grant an interim injunction:

                     (a)  restraining the industry services body or the industry export control body from engaging in conduct; or

                     (b)  requiring the industry services body or the industry export control body to do an act;

before deciding an application for an injunction under this section.

Discharge of injunctions

             (6)  The Federal Court may discharge, or vary, an injunction if an application for it to do so is made.

No undertakings as to damages

             (7)  The Federal Court must not require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction.

Powers conferred in addition to other powers of the Federal Court

             (8)  The powers conferred on the Federal Court by this section are in addition to (and do not limit) any other powers of the Federal Court.

28  Commonwealth recovery of amounts payable under the deed of agreement

                   The Commonwealth may recover an amount payable to the Commonwealth under:

                     (a)  this Act; or

                     (b)  the deed of agreement in relation to the industry services body or the industry export control body;

as a debt due to the Commonwealth by action in a court of competent jurisdiction.

29   Ministerial directions

             (1)  The Minister may give a written direction to the industry services body or the industry export control body if:

                     (a)  the Minister:

                              (i)  is satisfied that the direction is in Australia’s national interest because of exceptional and urgent circumstances; and

                             (ii)  is satisfied that the direction would not require the body to incur expenses greater than amounts paid to the body under this Act; and

                            (iii)  has given the body’s directors an adequate opportunity to discuss with the Minister the need for the proposed direction and the impact of compliance with subsection (3) on the body’s commercial activities; and

                     (b)  the direction is made for a purpose that is within the Commonwealth’s legislative power.

             (2)  If a body is given a direction under subsection (1), it must comply with it.

             (3)  The Minister must cause a copy of the direction to be laid before each House of the Parliament within 15 sitting days of that House after the direction is given, unless the Minister makes a written determination that doing so would be likely to prejudice:

                     (a)  the national interest of Australia; or

                     (b)  the body’s commercial activities.

             (4)  The Minister is not to be taken to be a director of the industry services body or the industry export control body for the purposes of the Corporations Law merely because of the power conferred on the Minister by this section.

             (5)  The Commonwealth is not to be taken to be in a position to exercise control over the industry services body or the industry export control body merely because of the power conferred on the Minister by this section.

30   Commonwealth access to information etc.

             (1)  The Secretary may only exercise powers under subsection (2) if:

                     (a)  the Secretary suspects actionable conduct by a body (the current or former industry body ) that is the industry services body, or is the industry export control body, or was formerly the industry services body or was formerly the industry export control body; and

                     (b)  the powers are exercised for the purposes of investigating, or assisting in the investigation, of suspected actionable conduct by the current or former industry body.

Note:          For the meaning of actionable conduct , see section 4.

             (2)  The Secretary may, by written notice given to a person, require the person to do either or both of the following:

                     (a)  give to the Secretary copies of documents:

                              (i)  in the person’s possession or control; and

                             (ii)  that are, or were, related to the current or former industry body;

                            within the period and in the manner specified in the notice; and

                     (b)  give to the Secretary information about specified matters relating to the body, within the period and in the manner specified in the notice.

The period specified in the notice must end at least 14 days after the notice was given.

             (3)  The person must:

                     (b)  comply with any notice given to it under subsection (2); and

                     (c)  give the Secretary any information, explanation or assistance reasonably required to understand any copies or information given under subsection (2).

             (4)  Copies and information given under subsection (2) may only be used for one or more of the following purposes:

                     (a)  investigating, or assisting in the investigation, of suspected actionable conduct by the current or former industry body;

                     (b)  a purpose related to this Act, the regulations or orders, or the deed of agreement relating to the body.

31   Application of the Archives Act 1983

             (1)  The Archives Act 1983 applies to a body that is the industry services body or the industry export control body as if:

                     (a)  the body were an authority of the Commonwealth; and

                     (b)  only the body’s statutory records were Commonwealth records.

Note:          For the meanings of statutory record and Commonwealth record , see section 4.

             (2)  The Archives Act 1983 applies to a body that was the industry services body or the industry export control body as if the reference in section 28A of that Act to records of the body were a reference to the statutory records of the body.

32   Delegations

             (1)  The Minister may delegate all or any of the Minister’s powers under this Act (other than section 29), the regulations or orders to the Secretary. The delegation must be in writing.

             (2)  The Secretary may delegate all or any of the Secretary’s powers under this Act, the regulations or orders to an APS employee in the Department who has appropriate skills or experience. The delegation must be in writing.

Note:          For the meaning of APS employee , see section 4.

33   Compensation for acquisition of property

             (1)  If:

                     (a)  apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay the person a reasonable amount of compensation in respect of the acquisition.

Note:          For the meanings of acquisition of property and just terms , see section 4.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

34   Regulations

                   The Governor-General may make regulations prescribing all matters:

                     (a)  that are required or permitted by this Act to be prescribed; or

                     (b)  that are necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and may, for example, make regulations prescribing penalties of not more than 30 penalty units for offences against the regulations.

35   Orders

             (1)  The Secretary may make orders with respect to any matter for or in relation to which provision may be made by the regulations. However, an order must not be made prescribing any penalty.

Note:          The Secretary may also make orders under section 19.

             (2)  Sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act 1901 apply in relation to orders made under subsection (1) or section 19 as if references to regulations were references to orders and references to an Act were references to regulations.

             (3)  An order made under subsection (1) or section 19 must not be taken to be a statutory rule within the meaning of the Statutory Rules Publication Act 1903 , but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to an order in like manner as they apply in relation to a statutory rule.

             (4)  For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (3), the reference in subsection 5(3B) of the Statutory Rules Publication Act 1903 to the Minister specified in that subsection shall be read as a reference to a Minister administering this Act.

             (5)  An order made under subsection (1) or section 19 is taken to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975 .