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Wheat Export Marketing Bill 2008

Part 5 Wheat Exports Australia

Division 1 WEA’s establishment, functions, powers and liabilities

35   Wheat Exports Australia

                   The body corporate known immediately before the commencement of this section as the Export Wheat Commission is continued in existence with the new name Wheat Exports Australia.

Note 1:       In this Act, WEA means Wheat Exports Australia—see section 5.

Note 2:       See also section 25B of the Acts Interpretation Act 1901 .

36   WEA’s functions

                   WEA has the following functions:

                     (a)  such functions as are conferred on WEA by this Act;

                     (b)  such functions as are conferred on WEA by the wheat export accreditation scheme;

                     (c)  to do anything incidental to or conducive to the performance of any of the above functions.

37   WEA’s powers

             (1)  WEA has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

             (2)  WEA’s powers include, but are not limited to, the power to enter into contracts.

             (3)  Any contract entered into by WEA is to be entered into on behalf of the Commonwealth.

             (4)  Any real or personal property held by WEAis held for and on behalf of the Commonwealth.

             (5)  Any money received by WEA is received for and on behalf of the Commonwealth.

             (6)  WEA cannot hold real or personal property, or money, on trust for a person other than the Commonwealth.

Note:          The Commonwealth may hold real or personal property or money on trust.

             (7)  To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (4).

38   WEA’s financial liabilities are Commonwealth liabilities

             (1)  Any financial liabilities of WEA are taken to be liabilities of the Commonwealth.

             (2)  In this section:

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.



 

Division 2 WEA’s constitution and membership

39   WEA’s constitution

             (1)  WEA:

                     (a)  is a body corporate with perpetual succession; and

                     (b)  must have a seal; and

      (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued in its corporate name.

             (2)  The seal of WEA is to be kept in such custody as WEA directs and must not be used except as authorised by WEA.

             (3)  All courts, judges and persons acting judicially must:

                     (a)  take judicial notice of the imprint of the seal of WEA appearing on a document; and

                     (b)  presume that the document was duly sealed.

40   WEA’s membership

                   WEA consists of the following members:

                     (a)  a Chair;

                     (b)  at least 3, and not more than 5, other members.

41   Appointment of WEA members

             (1)  Each WEA member is to be appointed by the Minister by written instrument.

Note:          The WEA member is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901 .

             (2)  A person is not eligible for appointment as a WEA member unless the Minister is satisfied that the person has:

                     (a)  substantial experience or knowledge; and

                     (b)  significant standing;

in at least one of the following fields:

                     (c)  international trade;

                     (d)  international marketing;

                     (e)  commodity trading;

                      (f)  foreign exchange trading;

                     (g)  finance;

                     (h)  economics;

                      (i)  regulation;

                      (j)  public policy;

                     (k)  business;

                      (l)  law;

                    (m)  grain production;

                     (n)  grain handling.

             (3)  A WEA member holds office on a part-time basis.

42   Period of appointment for WEA members

                   A WEA member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          For re-appointment, see subsection 33(4A) of the Acts Interpretation Act 1901 .

43   Acting WEA Chair

             (1)  The Minister may appoint a person to act as the WEA Chair:

                     (a)  during a vacancy in the office of the WEA Chair (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the WEA Chair:

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (2)  A person is not eligible for appointment to act as the WEA Chair unless the person is eligible for appointment as a WEA member.

Note:          See subsection 41(2).

Validation

             (3)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901 .



 

Division 3 Terms and conditions for WEA members

44   Remuneration

             (1)  A WEA member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a WEA member is to be paid the remuneration that is prescribed by the regulations.

             (2)  A WEA member is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

45   Disclosure of interests to the Minister

                   A WEA member must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s functions.

46   Disclosure of interests to WEA

             (1)  A WEA member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by WEA must disclose the nature of the interest to a meeting of WEA.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the WEA member’s knowledge.

             (3)  The disclosure must be recorded in the minutes of the meeting of WEA.

             (4)  Unless WEA otherwise determines, the WEA member:

                     (a)  must not be present during any deliberation by WEA on the matter; and

                     (b)  must not take part in any decision of WEA with respect to the matter.

             (5)  For the purposes of making a determination under subsection (4), the WEA member:

                     (a)  must not be present during any deliberation of WEA for the purpose of making the determination; and

                     (b)  must not take part in making the determination.

             (6)  A determination under subsection (4) must be recorded in the minutes of the meeting of WEA.

47   Leave of absence

             (1)  The Minister may grant the WEA Chair leave of absence on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (2)  The WEA Chair may grant leave of absence to any other WEA member on the terms and conditions that the WEA Chair determines.

48   Resignation

             (1)  A WEA member may resign his or her appointment by giving the Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

49   Termination of appointment

             (1)  The Minister may terminate the appointment of a WEA member for misbehaviour or physical or mental incapacity.

             (2)  The Minister may terminate the appointment of a WEA member if:

                     (a)  the member:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the member fails, without reasonable excuse, to comply with section 45 or 46; or

                     (c)  the member is absent, except on leave of absence, from 3 consecutive meetings of WEA.

50   Other terms and conditions

                   A WEA member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.



 

Division 4 Decision-making by WEA

51   Holding of meetings

             (1)  WEA is to hold such meetings as are necessary for the performance of its functions.

             (2)  The WEA Chair may convene a meeting at any time.

52   Presiding at meetings

             (1)  The WEA Chair presides at all meetings at which he or she is present.

             (2)  If the WEA Chair is not present at a meeting, the WEA members present must appoint one of themselves to preside.

53   Quorum

                   At a meeting of WEA, 3 WEA members constitute a quorum.

54   Voting at meetings etc.

             (1)  At a meeting of WEA, a question is decided by a majority of the votes of WEA members present and voting.

             (2)  The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

55   Conduct of meetings

                   WEA may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note:          Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.

56   Minutes

                   WEA must keep minutes of its meetings.



 

Division 5 Delegation

57   Delegation by WEA

             (1)  WEA may, by writing, delegate any or all of its functions and powers to:

                     (a)  a WEA member; or

                     (b)  a person who is:

                              (i)  a member of WEA staff; and

                             (ii)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901 .

             (2)  Subsection (1) does not apply to the power conferred by section 8 or paragraph 69(2)(c).

             (3)  A delegate must comply with any written directions of WEA.



 

Division 6 Wheat Exports Australia Special Account

58   Wheat Exports Australia Special Account

             (1)  The Wheat Exports Australia Special Account is established by this section.

             (2)  The Wheat Exports Australia Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997 .

59   Credits of amounts to the Wheat Exports Australia Special Account

             (1)  There are to be credited to the Wheat Exports Australia Special Account amounts equal to the wheat export charge amounts received by the Commonwealth.

             (2)  There are to be credited to the Wheat Exports Australia Special Account amounts equal to amounts received by way of fees referred to in section 10.

Note:          An Appropriation Act may contain a provision to the effect that, if any of the purposes of a Special Account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the Special Account), then amounts may be debited against the appropriation for that item and credited to that Special Account.

60   Purposes of the Wheat Exports Australia Special Account

                   The purposes of the Wheat Exports Australia Special Account are as follows:

                     (a)  paying or discharging the costs, expenses and other obligations incurred in connection with the operation of WEA;

                     (b)  paying remuneration and allowances of WEA members;

                     (c)  paying remuneration, and other employment-related costs and expenses, in respect of WEA staff;

                     (d)  paying compensation under section 26;

                     (e)  reimbursing an accredited wheat exporter under subsection 31(6).

Note:          See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).



 

Division 7 WEA staff etc.

61   Staff

             (1)  The staff of WEA are to be persons engaged under the Public Service Act 1999 .

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the WEA Chair and WEA staff together constitute a Statutory Agency; and

                     (b)  the WEA Chair is the Head of that Statutory Agency.

62   Persons assisting WEA

                   WEA may also be assisted:

                     (a)  by officers and employees of Agencies (within the meaning of the Public Service Act 1999 ); or

                     (b)  by officers and employees of authorities of the Commonwealth;

whose services are made available to WEA in connection with the performance of any of its functions.



 

Division 8 Planning and reporting obligations

63   Corporate plan

             (1)  WEA must prepare a corporate plan at least once each 3-year period and give it to the Minister.

             (2)  The plan must cover a 3-year period.

             (3)  The plan must include details of the following matters:

                     (a)  the objectives of WEA;

                     (b)  the strategies and policies that are to be followed by WEA in order to achieve those objectives;

                     (c)  such other matters (if any) as the Minister requires.

             (4)  The WEA Chair must keep the Minister informed about:

                     (a)  changes to the plan; and

                     (b)  matters that might significantly affect the achievement of the objectives set out in the plan.

             (5)  The Minister may give the WEA Chair written guidelines that are to be used by the WEA Chair in deciding whether a matter is covered by paragraph (3)(c) or (4)(b).

             (6)  A guideline given under subsection (5) is not a legislative instrument.

             (7)  WEA must ensure that the first corporate plan is prepared within 12 months after the commencement of this section.

64   Annual report

                   WEA must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on its operations during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

65   Report for growers

             (1)  WEA must prepare and publish a report for growers each marketing year in relation to the operation of the wheat export accreditation scheme during that year.

             (2)  WEA must publish the report for a marketing year on or before 31 December in the next marketing year.

             (3)  This section does not apply to the marketing year that began on 1 October 2007.



 

Division 9 Other matters

66   WEA Chair not subject to direction by WEA on certain matters

                   To avoid doubt, the WEA Chair is not subject to direction by WEA in relation to the WEA Chair’s performance of functions, or exercise of powers, under:

                     (a)  the Financial Management and Accountability Act 1997 ; or

                     (b)  the Public Service Act 1999 ;

in relation to WEA.