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Horticulture Marketing and Research and Development Services (Repeals and Consequential Provisions) Bill 2000

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1998-1999-2000

 

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

HORTICULTURE MARKETING AND RESEARCH AND DEVELOPMENT (REPEALS AND CONSEQUENTIAL PROVISIONS) SERVICES BILL 2000

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry, Senator the Hon Judith Troeth)



 

HORTICULTURE MARKETING AND RESEARCH AND DEVELOPMENT (REPEALS AND CONSEQUENTIAL PROVISIONS) SERVICES BILL 2000

 

GENERAL OUTLINE

 

This is the second of two Bills designed to create a horticultural industry services company to provide marketing and research and development to the horticulture industry. The new company will operate under Corporations Law and replace the current statutory authorities, the Australian Horticultural Corporation, the Australian Dried fruits Board and the Horticultural Research and Development Corporation.

 

The new company will be a not for personal profit company operating under Corporations Law that has industry representative bodies and voluntary funding contributors as its members, with voting rights allocated according to the amount of funds provided. The company will provide marketing and research and development programs to industry, based on the advice of industry advisory committees. The company will be accountable to shareholders for the effective use of funds provided.

 

This second Bill, the Horticulture Marketing and Research and Development (Repeals and Consequential Provisions) Bill 2000 abolishes the Australian Horticultural Corporation, the Australian Dried Fruits Board and the Horticultural Research and Development Corporation. It also deals with matters arising from the transition to the new industry services body and industry export control body under the Horticultural Marketing and Research and Development Services Bill 2000 , such as transfer of staff and assets from the statutory authorities and a 2 year period to phase in the new export control system.

 

FINANCIAL IMPACT STATEMENT

 

The Bill provides for the transfer of assets and liabilities of the Australian Horticultural Corporation, the Australian Dried Fruits Board and the Horticultural Research and Development Corporation to be transferred to the new company. The Bill also provides for an Australian Dried Fruit Trust to be established to hold the dried fruit industry reserves. Funds can be released from the Trust to meet the marketing needs of the export of dried fruits.

 

The net value of assets to be transferred is approximately $20m, principally involving funds held in accounts on behalf of industry levy payers. It is estimated that the company will achieve annual operational savings of approximately $550,000 per annum from moving to the new single company arrangement.

 

The regulation of export control powers under the new company will be similar to the way they currently operate under the Australian Horticultural Corporation and the financial impact will be similar, with exporters paying a modest licensing fee based on a cost-recovery basis.



 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1: Short title

 

This clause provides for the Act to be called the Horticulture Marketing and Research and Development (Repeals and Consequential Provisions) Services Bill 2000.

 

Clause 2: Commencement

 

This clause provides for the Act to commence at the same time as the Horticulture Marketing and Research and Development Services Bill 2000, with Schedules 1 and 2 of this Act to commence immediately after transfer. Schedule 3 commences upon Royal Assent of the Horticulture Marketing and Research and Development Services Bill 2000 or on the establishment of the proposed Administrative Review Tribunal, whichever is later .   The Bill also provides for the proposed Privacy Act to apply when enacted.

 

Clause 3: Simplified Outline

 

This clause provides an overview of the Act.

 

Clause 4: Definitions

 

This clause provides for terms in this Act to defined.

 

Clause 5: Crown to be Bound

 

This clause provides for the Act to bind the Crown but not make it liable to be prosecuted for an offence.

 

Clause 6: Application of this Act (Extra -territorial operation)

 

This clause provides for the Act to apply both within and outside Australia.

 

Clause 7: Schedules

 

This clause provides for the Act to amend or repeal earlier Acts.

 

Part 2 - Transitional provisions

 

Division 1 - Statutory authorities' role in transition

 

Clause 8: Simplified outline

 

This clause provides a simplified outline of Division 1.



 

Clause 9: Functions of statutory authorities

 

This clause provides that the functions of the existing statutory authorities include functions to assist in the transition to the industry arrangements, including meeting expenses.

 

Clause 10: Repeal of sections

 

This clause provides for the repeal of this division once the Acts establishing the statutory authorities are repealed.

 

Division 2 - Transfer day

 

Clause 11: Simplified outline

 

This clause provides a simplified outline of Division 2.

 

Clause 12:      Minister must determine transfer day

 

This clause provides for the Minister to specify the transfer day in writing.  The transfer day must not be before section 9 of the Horticulture Marketing and Research and Development Services Bill 2000 has come into effect for both the industry services body and the export control body . The Minister must declare the transfer day within 6 months of commencement of this section of the Act. It also provides for the Minister to revoke a determination and for publication of the determination in the Gazette within 14 days.

 

Clause 13:      Time of transfers

 

This clause provides for the time of transfer to be immediately after the end of the day before the transfer day.

 

Division 3 - Transfer of assets and liabilities

 

Clause 14:      Simplified outline

 

This clause provides a simplified outline of Division 3.

 

Clause 15:      Transfers subject to conditions

 

This clause provides for conditions to be on the transfer of assets and liabilities to the new industry services body to be specified in the Deed of Agreement entered into by that body and the Commonwealth.



 

Clause 16:      Transfer of assets and liabilities

 

This clause provides the mechanism for the transfer of assets and liabilities from statutory authorities to the industry services body, other than the ADF Trust Amount, and ensures that the industry services body is the legal successor to these assets and liabilities.

 

Clause 17:      ADF Trust Amount

 

This clause provides for the Minister to determine in writing the ADF trust amount and for the mechanism of transfer of this amount from the Australian Dried Fruits Board to the Dried Fruits Trust. This determination is to be published within 14 days in the Gazette .

 

Clause 18:      Transfer of pending proceedings

 

This clause provides that the new body will become the successor at law for any asset, liability, right, benefit or obligation transferred from the statutory authorities to the industry services body.

 

Clause 19        Exemption from taxation

 

This clause provides that the transfer of assets or liabilities described in this Division is not subject to stamp duty or other taxation under State or Territory laws.

 

Clause 20:      References in certain instruments

 

This clause provides that any effect of certain instruments relating to the statutory authorities - where the statutory authority is named, a party to, is favoured or is given a right - continues to have effect in relation to the industry services body.

 

Clause 21:      Certification in relation to assets

 

This clause provides for assets (other than money) that are transferred from the statutory authorities to the industry services body to be certified by a certificate that is lodged with an assets official.

 

Clause 22:      Saving: levies and charges

 

This clause provides for levies and charges received by the Commonwealth before transfer day, under the Acts that provide for charges and levies to be collected, but not paid out to the statutory authorities under the Acts that establish the statutory authorities, to be paid out of Consolidated revenue fund to the industry services body.



 

Division 4 - Transfer of Staff

Subdivision A -Preliminary

 

Clause 23:      Simplified outline

 

This clause provides a simplified outline of Division 4.

 

Clause 24:      Transfer of staff

 

This clause provides for continuity of employment for staff currently employed by the statutory authorities.

 

Clause 25:      Terms and conditions of transferred employees

 

This clause provides for transferred employees to be engaged by the industry services body on transfer day on the same terms and conditions and accrued benefits as entitled to with the statutory authorities.  Further, the employee's service with the industry services body is considered to be continuous with their service with the statutory authority and thus the employee receives no other benefit from no longer being employed by the statutory authority.  The terms and conditions continued under this clause would include contractual and other common law terms and conditions, terms and conditions determined under the Acts establishing the statutory authorities, and awards, certified agreements and other instruments under the Workplace Relations Act 1996.

 

Clause 26:      Variation of terms and conditions of employment

 

This clause provides for the terms and conditions of employment for transferred employees to be subject to variation in the usual way applying to those kinds of terms and conditions.

 

Subdivision B - Application of the SRC Act

 

Clause 27:      Continued application of the SRC Act

 

This clause provides for the continued application of the SRC Act after transfer day in relation to injuries to employees and loss of or damage to property incurred by an employee of a statutory authority before transfer day.

 

Clause 28:      Commonwealth liability to meet certain SRC Act liabilities

 

This clause provides for the Commonwealth to continue to be liable after transfer day for the liabilities of the statutory authorities under section 128A of the SRC Act incurred before the transfer day, subject to clause 30.



 

Clause 29:      SRC Act: rehabilitation provisions

 

This clause provides for the Commonwealth to receive co-operation from the industry services body in order for the Commonwealth to continue to fulfil its obligations arising prior to the transfer day under the SRC Act.  This clause also provides that the SRC Act will apply to the industry services body in some situations - as the relevant employer - after the transfer day.

 

Clause 30:      Premiums under the SRC Act

 

This clause provides for the determination of a premium that the industry services body must pay to the Safety and Rehabilitation Commission.  This clause also provides that if the amount of the confirmed premium is reduced as a result of a determination, that the Secretary of the Department can direct a refund amount for a particular financial year to be paid to the industry services body from Consolidated Revenue Fund.  Further, these directions must be gazetted.

 

Subdivision C - deferred DFRDB Act benefits

 

Clause 31:      Saving: deferred benefits under the DFRDB Act

 

This clause provides for a transferred employee to retain deferred benefits under the DFRDB Act, if the employee was entitled to such benefits immediately before the transfer day.  Further, that employment with the industry services body after transfer day will be considered to be public employment for the purposes of the DFRB Act, providing the employee continues with the industry services body.

 

Subdivision D - Maternity leave provisions

 

Clause 32:      Maternity leave starting before transfer day

 

This clause provides for female employees of the statutory authority who were on maternity leave before or on transfer day to continue to have access to maternity leave after the employee is transferred to the industry services body.

 

Clause 33:      Maternity leave starting after transfer day

 

This clause provides for the continuation of maternity leave entitlements for female employees after they have transferred from the statutory authority to the industry services body, for the period of up to 9 months after the transfer day.

 

Subdivision E - Provisions relating to superannuation

 

Clause 34:      Application of the Superannuation Act 1922

 

This clause states that section 145 of this Act does not apply to the industry services body.



 

Clause 35:      Application of other Superannuation Acts

 

This clause states that the industry services body is not an approved authority for the purposes of the Superannuation Act 1976 or 1990.

 

Clause 36:      Application of Superannuation Benefits (Supervisory Mechanisms) Act 1990

 

This clause provides that the Minister must not declare the industry services body to be a relevant body for the purposes of this Act.

 

Subdivision F - Provisions relating to long service leave

 

Clause 3 7:      Long service leave for employees with less than 10 years service

 

This clause provides for employees of the statutory authorities who were transferred to the new body with less than 10 years service to carry over their service and entitlements for this period of service to the industry services body, and also provides for payments in case of ill-health, retirement and redundancy. 

 

Clause 38:      Payments in lieu of long service leave for employees with less than 10 years service

 

This clause provides for employees of the statutory authorities who were transferred to the industry services body with less than 10 years service to receive payment for the long service leave entitlements that they carry over to the new body. Also, this clause provides for payments in case of ill-health, retirement and redundancy. 

 

Clause 39:      Payments on the death of an employee

 

This clause provides for benefits to be paid to relatives of employees of the statutory authorities who were transferred to the industry services body, in the event of the death of the transferred employee and for determining the amount of benefit to be paid.

 

Clause 40:      Employee's long service leave credit for the purposes of sections 37 and 38

 

This clause provides for the calculation of the long service leave credit of a transferred employee, for use in clauses 39 and 40.

 

Clause 41:      Employees with at least 10 years service

 

This clause provides for the benefits accrued by employees of the statutory authorities to continue when the employee is transferred to the industry services body.  However, the transferred employee is not entitled to receive payment because they have ceased to be in Government service.



 

Clause 42:      Division not to affect post-commencement long service leave rights

 

This clause provides that this Division does not affect employee's post-commencement long service leave rights.

 

Subdivision G - Staff with mobility rights

 

Clause 43:      Cessation of mobility rights

 

This clause provides for employees to cease to have rights under section 6 or 7 of the Public Service Act 1999 and to cease to be APS employees after transfer to the industry services body. 

 

Division 5 - Transitional period for export controls

 

Clause44:       Simplified outline

 

This clause provides a simplified outline of Division 5. 

 

Clause 45:      Continuation of export controls despite repeal of the AHC Act

 

This clause provides for the continuation of those parts of the Australian Horticultural Corporation Act 1987 that are necessary for the effective operation of export control powers.

 

Clause 46:      References to AHC and Product Board

 

This clause provides for the transfer of export control powers from the AHC and Australian Dried Fruits Board to the industry export control body on transfer day.  However, the industry export control body cannot vary those export control arrangements that were in place immediately prior to the transfer day.

 

Clause 47:      Phasing out of export controls under Part V of AHC Act

 

This clause provides for the current export control framework, as set out in Part V of the Australian Horticultural Corporation Act 1987 , to continue for transitional period for 2 years from the transfer day, and then cease.

 

Division 6 -Final annual reports

 

Clause 48:      Simplified outline

 

This clause provides a simplified outline of Division 6.

 

Clause49:       Final Annual Report: Australian Horticultural Corporation

 

This clause provides for the Boards of these two statutory authorities to continue to exist past the transfer day, in order to deliver a final annual report, covering the period between July 1 2000 and the transfer day.

 

The Deed of Agreement entered into by the industry services body will provide for that body to discharge any expenses or liabilities incurred by a statutory authority in preparing the final annual report from money transferred to the body under this Act, and also to provide access to any records that were transferred to the industry services body, in order to prepare the report.

 

 

Clause 50        Final Annual Report : Australian Dried Fruits Board

 

This clause provides for the Board of this statutory authority to continue to exist past the transfer day in order to deliver a final annual report, covering the period between July 1 2000 and the transfer day.

 

The Deed of Agreement entered into by the industry services body will provide for that body to discharge any expenses or liabilities incurred by a statutory authority in preparing the final annual report from money transferred to the body under this Act, and also to provide access to any records that were transferred to the industry services body, in order to prepare the report.

 

Clause 51:      Final Annual Report: Horticultural Research and Development Corporation

 

This clause provides for the Board of this statutory authority to continue to exist past the transfer day in order to deliver a final annual report, covering the period between July 1 2000 and the transfer day.

 

The Deed of Agreement entered into by the industry services body will provide for that body to discharge any expenses or liabilities incurred by a statutory authority in preparing the final annual report from money transferred to the body under this Act, and also to provide access to any records that were transferred to the industry services body, in order to prepare the report.

 

Division 7 - Miscellaneous powers

 

Clause 52:      Delegation of Secretary's powers

 

This clause provides for the Secretary to delegate - in writing - any or all powers to an APS employee with appropriate skill and experience. .

 

Clause 53:      Compensation for acquisition of property

 

This clause provides a right to compensation if, as a result of the operaion of the Act, property is acquired from a person otherwise than on on just terms.

 

Clause 54:      Regulations

 

This clause provides for the Governor-General to make regulations to carry out this Act.

 

Schedule 1:     Repeal of Acts

 

This clause repeals the two Acts establishing the three present statutory authorities.

 

Schedule 2:     Consequential Amendments

 

This clause provides for consequential amendments reflecting the operation of this Act and the Horticultural Marketing and Research and Development Services Act 2000 .

 

Schedule 3:     References to AAT

 

This clause allows references to AAT in the Horticulture Marketing and Research and Development Services Act 2000 to be altered to the Administrative Review Tribunal.

 

Schedule 4 :    Operation of the Privacy Act

 

This clause allows that when the Privacy Act 1988 applies to the export control body - which will happen when the Privacy Amendment (Private Sector) Act 2000 commences - the remedies available to a person under that Act (which may include compensation for loss or damage) are still available in relation to the industry export control body in spite of the general rule in section 25 of the Horticulture Marketing and Research and Development Services Bill 2000.