Apple and Pear Stabilization

No. 81 of 1971

An Act relating to the Stabilization of Returns from the Exportation from Australia of certain Apples and Pears.

[Assented to 20 October 1971]

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Short title.

1. This Act may be cited as the Apple and Pear Stabilization Act 1971.

Commencement.

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Interpretation.

3.—(1.) In this Act, unless the contrary intention appears—

“authorized person” means—

(a) a person appointed by the Minister, by instrument in writing, to be an authorized person for the purposes of the provision in which the expression occurs; or

(b) a person included in a class of persons appointed by the Minister, by instrument in writing, to be authorized persons for the purposes of the provision in which the expression occurs;

“average export return”, in relation to a season in respect of a variety of fruit, means the amount per reputed bushel determined under section 6 of this Act to be the average export return for that season in respect of that variety of fruit;

“container”, in relation to fruit, means the receptacle in which the fruit is enclosed on exportation, but does not include a receptacle that contains one or more smaller receptacles;

“export duty” has the same meaning as in the Export Duty Act;

“exportation” means exportation from Australia, and “exported” has a corresponding meaning;

“exporter”, in relation to fruit that is exported on consignment, means—

(a) where the fruit is so exported by a person on behalf of the owner of the fruit in pursuance of a contract or arrangement under which that person is to receive, on behalf of the owner, the whole or any part of the proceeds of the sale of the fruit—that person; or

(b) in any other case—the owner of the fruit;

“fruit” means apples and pears;

“guaranteed advance contract”, in relation to fruit, means a contract or arrangement between the owner of the fruit and another person under which—

(a) the owner agrees to supply the fruit for sale outside Australia by the other person on commission on behalf of the owner; and

(b) the other person agrees—

(i) to endeavour to sell the fruit in accordance with the contract or arrangement; and

(ii) whether or not he does so sell the fruit and irrespective of the price received on any such sale of the fruit, to pay to the owner an advance payment in respect of the fruit at a rate fixed by the contract or arrangement;

“owner”, in relation to fruit that is exported on consignment, means—

(a) where the fruit is exported in pursuance of a guaranteed advance contract—the person who was the owner of the fruit at the time when that contract was entered into; or

(b) in any other case—the person who is the owner of the fruit at the time of exportation;

“provisional export duty” has the same meaning as in the Export Duty Collection Act;

“reputed bushel” means—

(a) in relation to apples—forty pounds; and

(b) in relation to pears—forty-five pounds;

“season” means a season to which this Act applies;

“stabilization fund” means a stabilization fund established by section 8 of this Act;

“stabilization payment” means a stabilization payment under section 10 of this Act;

“support price”, in relation to a season in respect of a variety of fruit, means the amount per reputed bushel that is the support price for that season in respect of that variety of fruit in accordance with section 7 of this Act;

“the Audit Act” means the Audit Act 1901–1969;

“the Board” means the Australian Apple and Pear Board constituted under the Apple and Pear Organization Act 1938–1971;

“the Export Duty Act” means the Apple and Pear Stabilization Export Duty Act 1971;

“the Export Duty Collection Act” means the Apple and Pear Stabilization Export Duty Collection Act 1971.

(2.) For the purposes of this Act—

(a) all varieties of apples to which the words “Other Jonathan varieties” in column 1 of the First Schedule relate shall be regarded as one variety of that name;

(b) all varieties of apples to which the words “Other apple varieties” in column 1 of the First Schedule relate shall be regarded as one variety of that name; and

(c) all varieties of pears to which the words “Other pear varieties” in column 1 of the First Schedule relate shall be regarded as one variety of that name.

(3.) For the purposes of this Act—

(a) fruit that has been sold before exportation shall be deemed to have been sold for exportation if, and only if—

(i) the contract of sale requires that the fruit be exported; and

(ii) the contract of sale is not a guaranteed advance contract; and

(b) fruit that has been exported shall be deemed to have been exported on consignment unless, before exportation, the fruit had been sold for exportation and the exportation was in pursuance of the contract of sale.

(4.) For the purposes of this Act—

(a) a container that contains not more than five-eighths of a reputed bushel of fruit shall be deemed to contain one-half of a reputed bushel of the fruit;

(b) a container that contains more than five-eighths, but not more than seven-eighths, of a reputed bushel of fruit shall be deemed to contain three-quarters of a reputed bushel of the fruit; and

(c) a container that contains more than seven-eighths of a reputed bushel of fruit but not more than one and one-quarter reputed bushels of fruit shall be deemed to contain one reputed bushel of the fruit.

(5.) A reference in this Act to a Schedule by number shall be read as a reference to the Schedule to this Act so numbered.

Act to bind Crown.

4.—(1.) This Act binds the Crown in right of a State.

(2.) Nothing in this Act shall be deemed to subject the Crown in right of a State, or any person in the employment of the Crown, to liability to be prosecuted for an offence.

Seasons to which Act applies.

5.—(1.) This Act applies in relation to the season that commenced on the first day of October, One thousand nine hundred and seventy, and to each of the next four succeeding seasons.

(2.) In this section, “season” means a period of twelve months commencing on the first day of October in any year.

Average export return.

6.—(1.) As soon as practicable after the end of a season, the Minister shall, by instrument in writing, determine, in accordance with this section, in respect of each variety of fruit, the amount per reputed bushel that is the average export return for the season in respect of that variety.

(2.) The amount per reputed bushel that is the average export return for a season in respect of a variety of fruit shall be determined by—

(a) ascertaining, in respect of fruit picked during the season that is of that variety, the aggregate of—

(i) where any of the fruit was exported (whether before or after the commencement of this Act) on consignment (other than in pursuance of a guaranteed advance contract) and, after exportation, was sold on behalf of the owner before the end of the season—the proceeds of each such sale;

(ii) where any of the fruit was exported (whether before or after the commencement of this Act) during the season in pursuance of a guaranteed advance contract and, after exportation, was sold before the end of the season in pursuance of that contract—the amount, or the aggregate of the amounts, payable, under each such contract, to the owner of the fruit so sold in respect of that fruit; and

(iii) where any of the fruit was sold (whether before or after the commencement of this Act) for exportation and was, in pursuance of the contract of sale, exported before the end of the season—the proceeds of each such sale;

(b) deducting from the aggregate so ascertained any accountable cost in respect of any fruit referred to in the last preceding paragraph; and

(c) dividing the resultant amount by a number equal to the number of reputed bushels of the fruit so referred to.

(3.) In paragraph (b) of the last preceding sub-section, “accountable cost”, in relation to fruit referred to in paragraph (a) of that sub-section, means any cost, charge or expense (not being provisional export duty or export duty) that, in the opinion of the Minister, was necessarily incurred in respect of the fruit—

(a) by reason of—

(i) any moving or handling on a wharf or other loading area of the fruit after it was brought to the wharf or other loading area for the purpose of being placed on board a ship or other conveyance for exportation;

(ii) any moving, handling or processing of, or any dealing in, the fruit after it was placed on board a ship or other conveyance for exportation; or

(iii) the insuring of the fruit in respect of any period after it was placed on board a ship or other conveyance for exportation,

in the course of exportation and sale as set out in subparagraph (i), or in pursuance of a contract referred to in subparagraph (ii) or (iii), of paragraph (a) of that sub-section; or

(b) by reason of—

(i) the payment of a commission for services rendered in making arrangements; or

(ii) the making of arrangements,

for the exportation of the fruit as set out in whichever of the sub-paragraphs of paragraph (a) of that sub-section relates to the fruit.

(4.) At any time before the end of a season, the regulations may, for the purposes of sub-section (6.) of this section, prescribe an amount per reputed bushel, or a manner of ascertaining an amount per reputed bushel, that is the minimum price for the season in respect of a specified variety of fruit.

(5.) The Board may, at any time before a minimum price for a season in respect of a variety of fruit has been prescribed by regulations under the last preceding sub-section, make a recommendation to the Minister with respect to the minimum price for that season in respect of that variety of fruit and, if such a recommendation is made, the Governor-General shall take it into consideration before making regulations under that sub-section prescribing a minimum price for that season in respect of that variety of fruit.

(6.) Where regulations have been made under sub-section (4.) of this section in relation to a season in respect of a variety of fruit, the average export return for the season in respect of that variety shall be determined as if any fruit picked during that season—

(a) that was of that variety;

(b) that was exported on consignment;

(c) that was sold after exportation and before the end of that season and at a time when the regulations were in force; and

(d) the selling price of which when so sold was less than the appropriate minimum price prescribed by, or calculated in accordance with, the regulations,

was sold at a price equal to that minimum price.

(7.) A determination under sub-section (1.) of this section shall be published in the Gazette.

Support price.

7.—(1.) The support price for the season that commenced on the first day of October, One thousand nine hundred and seventy, in respect of a variety of fruit is the amount per reputed bushel specified in column 2 of the Second Schedule opposite to the name of the variety in column 1 of that Schedule.

(2.) The support price for a season, other than the season referred to in the last preceding sub-section, in respect of a variety of fruit is such amount per reputed bushel as is prescribed as the support price for that season in respect of that variety.

Stabilization funds to be established.

8.—(1.) Stabilization funds under the names specified in column 2 of the First Schedule are hereby established.

(2.) A stabilization fund is a Trust Account for the purposes of section 62a of the Audit Act.

Moneys to be paid into stabilization funds.

9.—(1.) There shall be paid into a stabilization fund out of the Consolidated Revenue Fund, which is appropriated accordingly, amounts equal to the amounts from time to time received by the Commonwealth as export duty or provisional export duty in respect of fruit of the variety the name of which is specified in column 1 of the First Schedule opposite to the name of the fund in column 2 of that Schedule.

(2.) There shall also be paid into a stabilization fund—

(a) moneys paid by any person to the Commonwealth for the purposes of the stabilization fund; and             

(b) interest from the investment of moneys standing to the credit of the stabilization fund.

Stabilization payment.

10.—(1.) Where the average export return for a season in respect of a variety of fruit is less than the support price for that season in respect of that variety, a stabilization payment is, subject to this Act, payable

on the exportation (whether before or after the commencement of this Act) on consignment during that season of fruit picked during that season that is of that variety.

(2.) A stabilization payment in respect of fruit shall be calculated separately in respect of the fruit contained in each container.

(3.) A stabilization payment is not payable in respect of fruit that is not sold after it is exported and before the end of the season in which it is exported.

Rate of a stabilization payment.

11.—(1.) Subject to this section, the rate of a stabilization payment in respect of fruit picked during a season is an amount per reputed bushel, or part of a reputed bushel, in each container of the fruit equal to the amount by which the amount per reputed bushel that constitutes the average export return for the season in respect of the variety of fruit in which the fruit is included is less than the amount per reputed bushel that constitutes the support price for the season in respect of that variety.

(2.) The rate of a stabilization payment shall not exceed an amount per reputed bushel, or part of a reputed bushel, in each container of fruit equal to—

(a) Eighty cents; or

(b) a number of cents equal to the product of 80 and 4,400,000 divided by a number equal to the number of reputed bushels of fruit picked during the season concerned that—

(i) is exported (whether before or after the commencement of this Act) on consignment during that season; and

(ii) is sold after exportation and before the end of that season,

whichever is the lesser amount.

(3.) Where a container of fruit contains one-half or three-quarters of a reputed bushel of the fruit, the stabilization payment in respect of that fruit is an amount equal to one-half or three-quarters, as the case may be, of the amount forming part of the rate of stabilization payment that would, but for this sub-section, be applicable in relation to the fruit under this section.

To whom stabilization payments payable.

12. A stabilization payment in respect of fruit is payable to the owner of the fruit.

Assignment of a stabilization payment to be void.

13. An assignment of a stabilization payment is void as against the Commonwealth.

Payment of stabilization payments to the Board for distribution.

14.—(1.) The Minister may, on behalf of the Commonwealth, enter into an arrangement with the Board to perform the function of making stabilization payments on behalf of the Commonwealth and, while such an arrangement is in force, the Board may do all things that are necessary or convenient to be done by it in pursuance of the arrangement.

(2.) Without prejudice to the generality of the last preceding subsection, an arrangement under that sub-section may provide for—

(a) the keeping by the Board of accounts and records in relation to stabilization payments received and distributed by the Board;

(b) the inspection and audit of the accounts and records referred to in the last preceding paragraph; and

(c) the furnishing by the Board to the Minister of information with respect to anything done by the Board in pursuance of the arrangement.

(3.) A stabilization payment to which an arrangement under this section relates may be paid to the Board for distribution in accordance with the arrangement.

(4.) The Audit Act does not apply in relation to amounts of stabilization payments in the hands of the Board.

(5.) Money paid to the Board under this section shall, until it is distributed in accordance with the arrangement under which it is paid, be deemed to be money held in trust for the Commonwealth.

Payments to exporter for payment to owner.

15.—(1.) For the purpose of making stabilization payments in respect of fruit that was exported by the exporter on behalf of the owners of the fruit, the Commonwealth or the Board may arrange for the exporter to pay, as agent of the Commonwealth or of the Board, as the case may be, to each of those owners the stabilization payment payable to that owner, and payment may be made by the Commonwealth or by the Board, as the case may be, to the exporter in accordance with the arrangement.

(2.) The Audit Act does not apply in relation to amounts of stabilization payments in the hands of an exporter referred to in the last preceding sub-section.

(3.) Money paid to an exporter under this section shall, until it is distributed in accordance with the arrangement under which it is paid, be deemed to be money held in trust for the Commonwealth.

(4.) Notwithstanding section 13 of this Act, where—

(a) an arrangement has been made between the Commonwealth or the Board and an exporter in accordance with sub-section (1.) of this section;

(b) moneys are paid by the Commonwealth or by the Board, as the case may be, to the exporter as a stabilization payment that is payable to the owner of any fruit; and

(c) the owner is indebted to the exporter by reason of a loan or advance made to the owner by the exporter and the owner has authorized the exporter to retain moneys payable by the exporter to the owner in respect of that fruit in or towards the discharge of that indebtedness,

the exporter may apply the whole or a part of the moneys so paid by the Commonwealth or by the Board, as the case may be, to the exporter in or towards the discharge of that indebtedness and, where the exporter

so applies an amount, the amount so applied shall, for the purposes of this Act, be deemed to have been received by the owner from the exporter as a stabilization payment in respect of the fruit concerned.

Application of stabilization fund.

16.—(1.) Moneys standing to the credit of a stabilization fund may be expended—

(a) in making a payment under section 5 or section 15 of the Export Duty Collection Act; and

(b) in making a stabilization payment,

in respect of fruit of the variety the name of which is specified in column 1 of the First Schedule opposite to the name of the fund in column 2 of that Schedule.

(2.) In the event of the amount standing to the credit of a stabilization fund being at any time insufficient to meet a stabilization payment out of the fund, or in the event of there being no amount standing to the credit of a stabilization fund out of which it is proposed to make a stabilization payment, there shall be paid into the fund out of the Consolidated Revenue Fund, which is appropriated accordingly, the amount necessary to enable the payment to be made.

Refund of excess balances in stabilization funds.

17.—(1.) For the purposes of this section, “the maximum amount”, in relation to a stabilization fund, means the amount specified in column 3 of the First Schedule opposite to the name of the fund in column 2 of that Schedule.

(2.) Subject to sub-section (9.) of this section, if the moneys standing to the credit of a stabilization fund at any time exceed the maximum amount, an amount equal to the excess shall be paid out of the fund by the Minister in accordance with this section.

(3.) Subject to sub-section (10.) of this section, after the expiration of a period of three months from the end of the last season in relation to which this Act applies, and after the making, in respect of a stabilization fund, of all payments into the fund and of all payments out of the fund apart from this sub-section, any moneys standing to the credit of the fund shall be paid out of the fund by the Minister in accordance with this section.

(4.) The payments out of a stabilization fund under the preceding provisions of this section shall be made by way of—

(a) repayment to the Consolidated Revenue Fund, so far as the amounts so payable out of the stabilization fund permit, of any moneys paid into the stabilization fund under sub-section (2.) of the last preceding section; and

(b) subject to the last preceding paragraph, the making of refunds of export duty to the persons who have paid export duty in respect of which moneys have been paid into the stabilization fund, but so that—

(i) refunds of export duty paid in respect of fruit picked during a season shall not be made before export duty paid in respect of fruit picked before the commencement of that season in respect of which moneys have been paid into the stabilization fund has been fully refunded; and

(ii) the making of the refunds does not discriminate between States or parts of States or give preference to one State or any part thereof over another State or any part thereof.

(5.) For the purposes of this section, where an exporter has recovered From a person, or been recouped by a person in respect of, export duty paid by the exporter, that person shall be deemed to have paid that export duty.

(6.) For the purposes of this section, a person who has paid export duty in respect of fruit shall be deemed to have also paid as export duty in respect of that fruit such portion as the Minister thinks just of any money credited to the relevant stabilization fund as income from investments.

(7.) An amount payable to a person under this section shall be deemed to be duly paid if it is paid in a manner in which it could lawfully be paid if it were a stabilization payment due to that person under this Act.

(8.) For the purposes of this section, a stabilization payment in respect of fruit picked during a season shall not be taken to be a refund of any export duty paid in respect of fruit picked before the commencement of that season.

(9.) The Minister is not obliged to make payments under sub-section (2.) of this section out of a stabilization fund by way of refund of export duty paid in respect of fruit picked during a season if the payments will not be sufficient to refund in full, or to complete the refund in full of, the export duty paid in respect of fruit picked during that season in respect of which moneys have been paid into the stabilization fund.

(10.) The Minister is not obliged to make payments under sub-section (3.) of this section out of a stabilization fund by way of refund of export duty if, before the expiration of the period referred to in that sub-section, a scheme for the stabilization of returns from the exportation of fruit picked after the end of the last season to which this Act applies is under consideration by the Commonwealth and representatives of the apple and pear industry and that scheme requires, or may require, the carrying forward of the moneys in the stabilization fund.

Directions by Minister with respect to overseas price of fruit.

18. Where regulations in force under the Apple and Pear Organization Act 1938–1971 authorize the Board, or a person authorized by the Board, to determine the price at which fruit may be sold overseas, the Board—

(a) shall comply with any direction of the Minister with respect to the making of any such determination in respect of fruit picked during a season; and

(b) if such a determination is made, shall, except as otherwise approved by the Minister, take all action that the Board can law-fully take with a view to ensuring that fruit to which the determination relates is not sold for exportation at a price less than the price applicable under the determination.

Power to require furnishing of returns.

19. An authorized person may, by notice in writing, require a person to furnish to him, within the time specified in the notice, such return or information in relation to matters relevant to the operation of this Act as is specified in the notice, including a return or information verified by statutory declaration.

Offences in relation to returns, &c.

20. A person shall not fail or neglect duly to furnish a return or information that he is required under this Act or the regulations to furnish.

Penalty: Two hundred dollars.

Offences.

21.—(1.) A person shall not—

(a) obtain a stabilization payment that is not payable;

(b) obtain payment of a stabilization payment to himself or to another person by means of a statement that is false or misleading in a material particular; or

(c) in connexion with this Act, present to a person doing duty or performing functions in relation to this Act or the regulations an account, book or document, or make or furnish to such a person a statement or return, that is false or misleading in a material particular.

Penalty: One thousand dollars or imprisonment for twelve months.

(2.) Where a person is convicted under the last preceding sub-section, the court may, in addition to imposing a penalty under that sub-section, order the person to refund to the Commonwealth the amount of any stabilization payment paid to him or to any other person as a result of the offence.

(3.) Where a court has made an order under the last preceding sub-section, a certificate under the hand of the clerk or other appropriate officer of the court specifying the amount ordered to be refunded and the person by whom the amount is payable may be filed in a court having civil jurisdiction to the extent of that amount and is thereupon enforceable in all respects as a final judgment of that court.

Access to premises.

22.—(1.) An authorized person may, with the consent of the occupier of any premises, enter the premises for the purpose of exercising the functions of an authorized person under this section.

(2.) Where an authorized person has reason to believe that books, documents or papers relating to the exportation, the sale for exportation or the sale after exportation of fruit picked during a season are on premises, the authorized person may make application to a Justice of the Peace for a warrant authorizing the authorized person to enter the premises for the purpose of exercising the functions of an authorized person under this section.

(3.) If, on an application under the last preceding sub-section, the Justice of the Peace is satisfied, by information on oath—

(a) that there is reasonable ground for believing that there are on the premises to which the application relates any books, documents or papers relating to the exportation, the sale for exportation or the sale after exportation of fruit picked during a season; and

(b) that the issue of the warrant is reasonably required for the purposes of this Act,

the Justice of the Peace may grant a warrant, in accordance with the prescribed form, authorizing the authorized person, with such assistance as he thinks necessary, to enter the premises, during such hours of the day or night as the warrant specifies or, if the warrant so specifies, at any time, if necessary by force, for the purpose of exercising the functions of an authorized person under this section.

(4.) Where an authorized person has entered any premises in pursuance of sub-section (1.) of this section or in pursuance of a warrant granted under sub-section (3.) of this section, he may exercise the functions of an authorized person under this section.

(5.) A person shall not, without reasonable excuse, obstruct or hinder an authorized person acting in pursuance of a warrant granted under sub-section (3.) of this section or in pursuance of the last preceding sub-section.

Penalty: Two hundred dollars.

(6.) The functions of an authorized person under this section are to search for, inspect, take extracts from and make copies of any books, documents or papers relating to the exportation, the sale for exportation or the sale after exportation of fruit picked during a season.

(7.) In this section, “occupier”, in relation to premises, includes the person in charge of the premises.

Exporter to keep proper books and accounts, &c.

23.—(1.) An exporter of fruit shall—

(a) maintain, in respect of each season, proper books and accounts in respect of his operations, receipts and expenditure in relation to the exportation of fruit picked during that season, and enter promptly in those books and accounts full and correct particulars of all such operations, receipts and expenditure;

(b) retain those books and accounts for a period of three years after the end of the season; and

(c) upon demand by an authorized person at any time during the season or within the period of three years referred to in the last preceding paragraph, produce to the authorized person all or any of those books or accounts.

Penalty: Two hundred dollars.

(2.) A prosecution for an offence against paragraph (a) of the last preceding sub-section may be commenced at any time within three years after the commission of the offence.

Regulations.

24. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular—

(a) requiring exporters of fruit to furnish, to such persons as are prescribed, returns or information relating to that fruit;

(b) providing that a stabilization payment is not to be payable, or that payment of a stabilization payment may be withheld, where a provision of the regulations has not been complied with; and

(c) prescribing penalties, not exceeding a fine of Two hundred dollars, for offences against the regulations.

THE SCHEDULES

FIRST SCHEDULE Sections 3, 8, 9, 16 and 17.

Stabilization Funds

SECOND SCHEDULE Section 7.

Support Prices in respect of the Season that Commenced on 1 October, 1970