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Pig Industry Bill 2001

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1998-1999-2000

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

PIG INDUSTRY BILL 2000

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,

the Hon Warren Truss MP)



 

PIG INDUSTRY BILL 2000

 

GENERAL OUTLINE

 

The Bill is designed to allow for the creation of a pig industry services body responsible for the industry’s strategic policy development as well as the industry’s marketing and R&D services, formerly provided by the Australian Pork Corporation (APC) and the Pig Research and Development Corporation (PRDC).  The Bill will repeal the enabling legislation for the APC and PRDC and provide for the transfer of assets, liabilities and staff of the statutory authorities to the new industry services body. 

 

The new not for profit industry services body, limited by guarantee, will operate under Corporations Law and all statutory levy payers will be eligible to register for membership and full voting rights in the industry services body. To deliver its objects and strategic and operational plans, the board of the industry services body will be required to supplement the skill mix of its five member elected directors with specialist skilled directors, including an independent director highly skilled in corporate governance.

 

The Bill provides the Minister with the power to enter into a funding contract with an eligible body to enable it to receive and administer levies collected by the Commonwealth for industry marketing and promotion, research and development (R&D), and the Commonwealth’s matching funding for eligible R&D expenditure. The Minister may then declare the body with which the contract is made to be the industry services body.

 

The contract will also include provisions relating to the transfer of assets and liabilities from the statutory corporations and will impose certain obligations and accountability requirements on the industry services body. The detail of the new industry services body’s accountability arrangements to its members and to the Commonwealth will be outlined in the industry services body constitution and the contract between the body and the Commonwealth.

 

The Bill provides for recognition of accrued entitlements of employees of the statutory authorities who are transferring to the industry services body.  These entitlements relate to annual and long service leave, continuity of service and other employment conditions. It also provides for the final reports of the APC and PRDC.

 

FINANCIAL IMPACT STATEMENT

 

The Bill provides for the transfer of assets and liabilities of the Australian Pork Corporation and the Pig Research and Development Corporation to the new industry services body.

 

The net value of assets to be transferred is approximately $7.4m, principally involving funds held in marketing and promotion and R&D accounts on behalf of industry levy payers.



NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1: Short title

 

This clause provides for the Act to be called the Pig Industry Bill 2000.

 

Clause 2: Commencement

 

This clause provides for the Act to commence on the day on which it receives Royal Assent, with Schedule 1 (other than item 107) to commence immediately after transfer.  Item 107 of Schedule 1 recognises the Administrative Appeals Tribunal is to be changed to the Administrative Review Tribunal in the near future when its enabling legislation comes into effect.

 

Clause 3: Schedule(s)

 

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

 

Clause 4: 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 5: External Territories

 

This clause provides for the Act to extend to all the external Territories.

 

Clause 6: Extraterritorial operation

 

This clause provides for the Act to extend to acts, omissions, matters and things outside Australia, whether or not in a foreign country.

 

Part 2 - Interpretation

 

Clause 7: Definitions

 

This clause provides for terms in this Act to be defined.

 

Part 3 - Provision of pig industry services

 

Division 1 - Transitional functions of statutory authorities



 

Clause 8: Functions of statutory authorities

 

This clause provides that the functions of the existing statutory authorities (the Australian Pork Corporation, APC, and the Pig Research and Development Corporation, PRDC) be extended to include a function enabling them to assist in the transition to the new industry arrangements, including meeting expenses.  In respect of this, the Minister may provide direction in writing to the APC and PRDC to ensure they assist in the industry transition.

 

Division 2 - Funding contract

 

Clause 9: Funding contract

 

This clause provides for the Minister, on behalf of the Commonwealth, to enter into a contract with an eligible body which will allow the Commonwealth to make marketing, research and development and matching R&D payments to the body.

 

The clause ensures the contract satisfies the Minister that the public accountability requirements of the Commonwealth are met. The public accountability requirements relate to the use of marketing payments for marketing, promotion, strategic policy development and other activities for the benefit of the Australian pig industry; R&D payments for research and development activities for the benefit of the Australian pig industry; and Commonwealth matching payments on eligible expenditure on research and development activities for the benefit of the Australian pig industry and the Australian community in general.

 

The clause also provides that the Commonwealth is not obliged to pay the full amounts that could be paid from the money collected by the Commonwealth as the pig industry levy.

 

In addition, the clause provides the contract may include provisions relating to the industry assets and liabilities being transferred from the statutory authorities to the industry services body.

 

Clause 10: Appropriation for payments under funding contract

 

This clause provides for the amounts payable for marketing, R&D, and matching payments to be appropriated from Consolidated Revenue.

 

The clause defines the marketing levy and the R&D levy and provides an overall limit for marketing payments, R&D payments, and Commonwealth matching payments for eligible R&D expenditure.



 

The clause also provides an annual limit for Commonwealth matching payments for eligible R&D expenditure. This amount is not to exceed the lesser of either the 0.5% of the gross value of pig meat production (GVP) for the financial year or 50% of the amount spent by the eligible body on activities that qualify under the funding contract in that financial year, in line with the Commonwealth's matching funding policy. It provides for the Minister to determine the GVP of pigmeat production.

 

Division 3 - Industry services body

 

Clause 11: Declaration of industry services body

 

In order for the Minister to be able to provide for the new pig industry services body to deliver the marketing, research and development and strategic policy services to the pig industry as intended, there is a need to formally declare the company that has these functions. This is achieved in this clause by providing for the Minister to declare a body to be the industry services body if a funding contract has been made that provides for payments to an eligible body.

 

Clause 12: Ministerial directions to industry services body

 

This clause provides for the Minister to give a written direction to the industry services body. The direction must meet the criteria of being in the national interest because of exceptional and urgent circumstances.  The industry services body must comply with any such direction.

 

The clause requires the Minister to be satisfied that the direction would not require the industry services body to incur expenses greater than amounts provided under the Act and that the Minister has given the industry services body's directors an adequate opportunity to discuss the need for the proposed direction.  The direction must be laid before each House of Parliament within 15 sitting days, unless the Minister makes a written determination that doing so would prejudice either the national interest or the industry services body's commercial activities.

 

Division 4 - Transfer of assets etc. of statutory authorities

 

Clause 13: Transfer time

 

This clause provides for the Minister to declare in writing the specific time of transfer of assets, liabilities and staff from the statutory authorities, immediately after which the APC and PRDC will cease to exist.

 

Clause 14: Successor body

 

This clause provides that the company which has been declared as the industry services body then becomes the successor body to the APC and PRDC.



 

Clause 15: Transfer of assets of statutory authorities

 

This clause provides a mechanism to transfer an asset of one statutory authority (the transferor ) to either the industry services body or to the Commonwealth (the transferee ). It provides for the Minister to declare that the ownership of specific assets automatically vests in the transferee without any other conveyance or transfer.   In addition instruments relating to asset ownership apply to the transferee after the transfer time. It also provides that the transferee becomes the transferor's successor-in-law in relation to the assets. The Minister may sell any asset that vests in the Commonwealth.

 

Clause 16: Transfer of liabilities of statutory authorities

 

This clause provides a mechanism to transfer a liability of one statutory authority (the transferor ) to either the industry services body or to the Commonwealth (the transferee ). It provides for the Minister to make declarations specifying that particular liabilities become liabilities of the transferee without any other conveyance or transfer.  In addition instruments relating to those liabilities are to apply to the transferee after the transfer time. It also provides that the transferee becomes the transferor's successor-in-law in relation to those liabilities. The Commonwealth may use the Consolidated Revenue Fund to discharge liabilities which it obtains from the statutory authorities.

 

Clause 17: Adjustment payments by Commonwealth

 

This clause provides that after the transition is complete, the Minister may authorise payments from the Consolidated Revenue Fund to the industry services body.  These payments are limited to the value of assets received from the APC and PRDC at the time of transfer, plus the proceeds of any asset sales, interest or dividends earned after transfer, less any expenses or liabilities incurred by the Commonwealth or other person or body as part of the industry restructure.  This clause provides that all net industry assets held by the Commonwealth after transition are to be forwarded to the industry services body. 

 

Clause 18: Registration of land transfers

 

This clause allows for the registration of any right, title or interest in land transferred to a transferee as part of an asset transfer under clause 17. It provides for the lodgement of an appropriate certificate signed by the Minister and for a land registration official to register that transfer in accordance with the certificate. The clause also provides that the Lands Acquisition Act 1989 does not apply in relation to anything done under this clause.



 

Clause 19: Certificates in relation to assets other than land

 

This clause allows for the registration of an asset other than land transferred to the transferee as part of an asset transfer under clause 17. It provides for the lodgement of an appropriate certificate signed by the Minister and for an assets official to register that transfer in accordance with the certificate. The clause may apply, for example, to registered patents and trade marks.

 

Clause 20: Exemption from stamp duty etc.

 

This clause provides that the transfer or sale of an asset under Clause 17 or the transfer or discharge of a liability under Clause 18 do not to give rise to stamp duty or other tax liability under any State or Territory law. This is intended to ensure that the steps taken in the pork industry restructure do not give rise to any stamp duty or other State/Territory tax liability that would not have occurred if the restructure had not taken place.

 

The clause also provides that the Minister may certify in writing that a specified matter is an exempt matter or is a specified thing done in connection with an exempt matter .

 

Clause 21: Operation of GST Law

 

The clause provides that, for the purposes of the GST Law (as defined in A New Tax System (Goods and Services Tax) Act 1999 ), the transfer of assets of the statutory authorities to the new industry services body is deemed to be consideration given by the Commonwealth (which for this purpose will be regarded as acting through AFFA) to the body in connection with the obligations entered into by the body in the funding contract under clause 9.  This will ensure that the Commonwealth is entitled to receive an input tax credit corresponding to the full GST liability of industry services body for taxable supplies arising under the funding contract.

 

Division 5 - Transferring employees of statutory authorities

 

Subdivision A - Leave entitlements and continuity of service

 

Clause 22: Leave entitlements and continuity of service

 

This clause provides that staff members transferring from the APC and PRDC to the industry services body will be entitled for the industry services body to recognise their years of service as well as their accrued long service leave, recreation leave and sickness leave entitlements at the time of transfer.

 

Subdivision B - Safety, Rehabilitation and Compensation Act



 

Clause 23: Expressions defined in SRC Act

 

This clause provides that expressions defined in the SRC Act and used in this Subdivision have the same meanings as in that Act.

 

Clause 24: Continued application of SRC Act

 

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

 

Clause 25: Commonwealth liability to meet certain SRC Act liabilities

 

This clause provides for the Commonwealth to continue to be liable after the transfer time for the liabilities of the Australian Pork Corporation under section 128A of the SRC Act incurred before the transfer day.

 

Clause 26: 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 under the SRC Act arising from liabilities which occurred prior to the transfer time.  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 time.

 

Clause 27: Premiums under the SRC Act

 

This clause provides for any refunds on annual premiums paid by the statutory authorities, that may arise due to the transition taking effect part way through the year, to be refunded to the industry services body from the Consolidated Revenue Fund. The Minister may direct in writing for this to occur and may stipulate certain conditions to the industry services body regarding the use or expenditure of the refund. Further, these directions must be gazetted.

 

Subdivision C - Deferred DFRDB Act benefits

 

Clause 28: Saving of deferred benefits

 

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

 

Subdivision D - Maternity leave



 

Clause 29: Maternity leave starting before transfer time

 

This clause provides for a transferring female employee of the APC or PRDC who was on maternity leave before the transfer time to continue to have access to maternity leave after the employee is transferred to the industry services body.

 

Clause 30: Maternity leave starting after transfer time

 

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

 

Subdivision E - Long Service Leave

 

Clause 31: Expressions defined in Long Service Leave Act

 

This clause provides that expressions used in this Subdivision that are defined in the Long Service Leave Act have the same meanings as in that Act.

 

Clause 32: Long Service Leave for employees with less than 10 years service

 

This clause provides for former employees of the APC and PRDC with less than 10 years service at the time of transfer to carry over their accrued long service leave entitlements to the industry services body.  If the employees combined service period both before and after transition time subsequently becomes at least 10 years, the industry services body may grant the long service leave entitlement on full salary.  If the employee with less than 10 years continuous service stops being an employee of the industry services body after reaching minimum retiring age or because of retrenchment, and they have had at least one year continuous employment (before and after transition time), they may be granted their leave credit on full salary.

 

The clause also provides leave may be granted at half pay and provides that the rate of salary to be used is as intended in the Long Service Leave Act. 

 

Clause 33: Payments in lieu of long service leave for employees with less than 10 years service

 

This clause provides that the industry services body must pay the long service leave entitlement for former employees of the APC and PRDC in the circumstances as described in Clause 38.   In addition, this clause provides for payments of accrued long service leave entitlements in the case of ill-health.

 

Clause 34: Payments on the death of an employee

 

This clause provides that the industry services body must pay the long service leave entitlement for employees with less than 10 years combined service, but more than one year continuous service and with one or more dependants, who dies after the transfer time.  The benefit is to be paid to their dependants.



 

Clause 35: Employee's long service leave credit for the purposes of sections 32 and 33

 

This clause provides for the calculation of the long service leave credit of a transferred employee, for use in clauses 38 and 39.  In respect of clause 38 the long service leave credit commences when the employee commenced with the APC or PRDC and ended at the transfer time.  In respect of clause 39 the long service leave credit is as for clause 38 less any long service leave credit that has been used. 

 

Clause 36:      Employees with at least 10 years service

 

This clause provides for the long service leave benefits accrued by transferring employees of the APC and PRDC with at least 10 years service to continue to be available as intended by the Long Service Leave Act when the employee is transferred to the industry services body.  However, the transferred employee is not entitled to receive payment simply because they have ceased to be employed in the Australian Public Service.

 

Clause 37: Division not to affect post-commencement long service leave rights

 

This clause provides that this Division does not affect any long service leave rights acquired by the employee after the transfer time.

 

Subdivision F - Miscellaneous

 

Clause 38: Cessation of mobility rights

 

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

 

Clause 39: Transferring employees who accept employment with equivalent terms and conditions

 

This clause provides that transferring staff employed by the industry services body on terms and conditions at least equivalent to those they received while in employment with the APC or PRDC, as relevant, will not be entitled to receive any payment or redundancy or other benefit merely because they cease to be an employee of the statutory authority because of this Act.

 

Under this clause the determination of equivalent terms and conditions of employment, when taken as a whole after transfer time, is to be determined by the Minister. An application to review the Minister’s determination can be made to the Administrative Appeals Tribunal. The clause also defines how equivalent terms and conditions are determined.

 

Division 6 - Miscellaneous



 

Clause 40: Operation of Archives Act

 

This clause requires that Commonwealth records are transferred or otherwise dealt with as permitted under the Archives Act 1983 and as administered by National Archives of Australia.

 

Clause 41: Certificates, declarations etc. taken to be authentic etc.

 

This clause provides that a certificate, declaration or other document that appears to be made or issued under Part 3 of the Bill is taken to be authentic unless the contrary is established.

 

Clause 42: Publication of declarations

 

This clause provides that declarations made by the Minister under Part 3 of the Bill are to be published in the Gazette within 14 days.  However, failure to comply with this will not affect the validity of a declaration.

 

Part 4 - Miscellaneous

 

Clause 43: Delegation

 

This clause provides for the Minister to delegate any or all of his or her powers and functions to either the Secretary of the Department or an SES employee or acting SES employee of the Department.  The delegate, in exercising these powers or functions, must comply with any directions of the Minister.

 

Clause 44: Compensation for acquisition of property

 

This clause provides for compensation to be paid by the Commonwealth to a person from whom property is acquired on other than just terms as a result of the operation of the Bill. If the Commonwealth and the person in question cannot agree on the amount of any such compensation to be paid, the Federal Court may, on application by the person from whom the property was acquired, determine what is a reasonable amount of compensation for the acquisition of the property.

 

Clause 45: Commonwealth expenses in connection with abolition of statutory bodies etc.

 

This clause provides for the Commonwealth to make payments from the Consolidated Revenue Fund to meet expenses or liabilities incurred whilst participating in the abolition of the APC and PRDC and in implementing the new pork industry structure.  Payments may also be made to reimburse a person or body who has incurred expenses whilst participating in the same activities.



 

The amount paid from the Consolidated Revenue Fund is limited to the value of assets received from the APC and PRDC at the time of transfer, plus the proceeds of any asset sales, interest or dividends earned after transfer less any expenses or liabilities incurred by the Commonwealth or other person or body as part of the industry restructure.

 

Clause 46: Regulations

 

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

 

Schedule 1 - Amendments and repeals

 

Part 1 - Amendments and repeals of Acts

 

Freedom of Information Act 1982

 

Item 1 Division 1 of Part II of Schedule 2

This item provides that the Australian Pork Corporation is no longer subject to providing documents in respect of its commercial activities under the FOI Act.

 

Pig Industry Act 1986

 

Item 2

This item repeals the Pig Industry Act 1986 with the result that the Australian Pork Corporation will cease to exist.

 

Pig Industry Act 2000

 

Item 3 Subsection ^39(3)

This item covers the proposed change from the Administrative Appeals Tribunal to the Administrative Review Tribunal.

 

Primary Industries (Excise) Levies Act 1999

 

Item 4 Clause 1 of Schedule 22 (definition of Corporation )

This item repeals the definition of Corporation in this Clause.

 

Item 5 Clause 1 of Schedule 22

This item adds the definition ‘ industry services body’  to ensure it has the same meaning as in the Pig Industry Act 2000 .

 

Item 6 Clause 1 of Schedule 22 (definition of R&D authority )

This item repeals the definition of R&D authority in this Clause.

 

Item 7 Clause 1 of Schedule 22 (definition of R&D Corporation )

This item repeals the definition of R&D Corporation in this Clause.



 

Item 8 Clause 1 of Schedule 22 (definition of R&D Council )

This item repeals the definition of R&D Council in this Clause.

 

Item 9 Clause 1 of Schedule 22 (definition of R&D Fund )

This item repeals the definition of R&D Fund in this Clause.

 

Item 10 Clause 3 of Schedule 22 (notes 1 and 2)

This item corrects a drafting error in the Act which incorrectly identified the destination of amounts available under the Pig Industry Act 1986 .

 

Item 11 Subclause 5(1) of Schedule 22

This item replaces the term “R&D authority with the term “industry services body” in this Subclause.

 

Item 12 Subclause 5(1) of Schedule 22

This item replaces the term “that authority” with the term “that body” in this Subclause.

 

Item 13 Subclause 5(2) of Schedule 22

This item replaces the first occurring reference to “Corporation” in this Subclause with the term “industry services body”.

 

Item 14 Subclause 5(2) of Schedule 22

This item replaces the last occurring reference to “Corporation” in this Subclause with the term “body”.

 

Safety, Rehabilitation and Compensation Act 1988

 

Item 15 Subsection 128A(4) (paragraph (m) of the definition of prescribed Commonwealth authority )

This item provides that the Australian Pork Corporation is no longer a prescribed Commonwealth Authority under the Safety, Rehabilitation and Compensation Act 1988 .

 

Part 2 - Repeal of regulations

 

Pig Research and Development Corporation Regulations

 

Item 16 The Pig Research and Development Corporation Regulations

This item repeals the Pig Research and Development Corporation Regulations with the result that the Pig Research and Development Corporation will cease to exist.

 

Part 3 - Transitional and savings



 

Item 17 Final annual reports for abolished bodies

This item provides for the directors of the APC and PRDC to prepare an annual report in relation to the final reporting period for each Corporation. The final reporting period is from the commencement of the financial year in which the transfer time occurred up to immediately before the transfer time.  The reports are to be consistent with the requirements set out under the Commonwealth Authorities and Companies Act 1997 as well as the requirements of their respective enabling legislation as if it continued to have effect after the transfer time.

 

This item also provides for the directors of the Corporations to be treated as continuing directors with entitlements to allowances and remuneration whilst preparing the final reports.  Their expenses as directors will be paid by the Commonwealth and the Consolidated Revenue Fund is appropriated for that purpose.