Australian Horticultural Corporation
Amendment Act 1991

No. 42 of 1991

An Act to amend the Australian Horticultural Corporation
Act 1987 and to provide for the establishment of the Dried
Fruits Board, and for related purposes

[Assented to 27 March 1991]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Australian Horticultural Corporation Amendment Act 1991.

Commencement

2. (1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) Subject to subsection (3), Parts 3 and 4 commence on a day to be fixed by Proclamation.

(3) If Parts 3 and 4 do not commence under subsection (2) before 1 July 1991, they commence on that day.

PART 2—AMENDMENTS OF THE AUSTRALIAN
HORTICULTURAL CORPORATION ACT 1987

Principal Act

3. In this Part, “Principal Act” means the Australian Horticultural Corporation Act 19871.

Title

4. The title of the Principal Act is amended by inserting “and to provide for the establishment of Product Boards” after “Australian Horticultural Corporation”.

Interpretation

5. Section 3 of the Principal Act is amended:

(a) by omitting from subsection (1) the definitions of “product group committee” and “product group selection committee”;

(b) by omitting from subsection (1) the definitions of “Australian horticultural industry”, “Chairperson”, “member” and “nominated member” and substituting the following definitions:

“ ‘Australian horticultural industry’ means any industry carried on in Australia in connection with:

(a) producing Australian horticultural products; or

(b) handling, storing, transporting, processing or marketing Australian horticultural products;

‘Chairperson’ means:

(a) in relation to the Corporation—the Chairperson of the Corporation; and

(b) in relation to the Corporation Selection Committee—the Chairperson of the Corporation Selection Committee; and

‘member’ includes:

(a) in relation to the Corporation—the Chairperson of the Corporation, the Deputy Chairperson of the Corporation, the government member and the Managing Director; and

(b) in relation to the Corporation Selection Committee—the

Chairperson and Deputy Chairperson of the Corporation Selection Committee; and

‘nominated member’ means:

(a) in relation to the Corporation—a member of the Corporation other than the Chairperson, the government member and the Managing Director; and

(b) in relation to the Corporation Selection Committee—a member of the Corporation Selection Committee other than the Chairperson; and

“ ‘Australian Board products’, in relation to a Board, means:

(a) Board products of that Board grown or harvested in Australia; or

(b) Board products produced by processing in Australia products referred to in paragraph (a);

‘Board’ means a Product Board;

‘Board industry’, in relation to a Board, means any industry carried on in Australia in connection with:

(a) producing Australian Board products of that Board; or

(b) handling, storing, transporting, processing or marketing such Australian Board products;

‘Board products’ means, in relation to a Board, the horticultural product or class of horticultural products in respect of which the Board was established;

‘export charge’, in relation to a Board, means a charge whose rate is fixed under section 8a of the Export Charge Act in relation to the Board;

‘General Manager’, in relation to a Board, means the General Manager of the Board;

‘levy’, in relation to a Board, means a levy whose rate is fixed under section 8a of the Levy Act in relation to the Board;

‘Product Board’ means a Board established under section 100;

‘registered levy payer’, in relation to a Board, means a person included on the register of the Board referred to in section 115h.”.

Functions

6. Section 8 of the Principal Act is amended by adding at the end the following subsection:

“(2) Subject to Part IV, where a Product Board has functions in relation to a Board industry or Board product, the Corporation must

not perform the same function in relation to that industry or product without the Board’s consent.”.

Consultations with industry representatives etc.

7. Section 11 of the Principal Act is amended:

(a) by omitting from subsection (1) “or a product group committee and” and substituting “and any of the following”;

(b) by inserting before paragraph (1) (a) the following paragraph:

“(aa) a Board; or”;

(d) by omitting from paragraph (2) (a) “or a product group committee”;

(e) by omitting from paragraph (2) (b) “or a product group committee”.

Corporate Plan

8. Section 27 of the Principal Act is amended:

(a) by inserting in subsection (4) “and of each Board” after “Corporation”, and “, including Board industries” after “Australian horticultural industries”;

(b) by inserting in subsection (5) “and of each Board” after “Corporation”, and “, including Board industries” after “Australian horticultural industries”;

“(7a) In preparing or revising the corporate plan, the Corporation must take into account the relevant corporate plan of each Board.”.

Annual report

9. Section 30 of the Principal Act is amended:

(a) by omitting subsection (1) and substituting the following subsection:

“(1) The Corporation must, as soon as practicable, after the end of each financial year:

(a) prepare and give to the Minister a report of the operations of the Corporation and of each Board during that year; and

(b) prepare and give to the Minister financial statements for the Corporation for that year, in such form as the Minister for Finance approves, in writing; and

(c) give to the Minister the financial statements for each Board for that year received by the Corporation under subsection 115f (3).”;

(b) by omitting from paragraph (2) (a) “its operations” and substituting “the operations of the Corporation and of each Board”;

(d) by omitting from subsection (3) “subsection (1)” and substituting “paragraph (1) (b)”;

(e) by omitting from subsection (4) “auditor’s report” and substituting “auditor’s reports, including reports submitted to the Minister under subsection 115f (4)”;

(f) by inserting after subsection (4) the following subsection:

“(4a) The Corporation must, as soon as practicable, give each Board, and each of the Board’s eligible industry bodies, a copy of the Corporation’s annual report, together with the financial statements, and the Corporation auditor’s report, relating to that Board.”.

Accountability to horticultural industries

10. Section 31 of the Principal Act is amended by adding at the end the following subsection:

“(2) Where the Corporation receives notice under paragraph 115j (2) (a) of a Board’s annual general meeting, the Chairperson of the Corporation must cause to be prepared a report on the activities of the Corporation since the last annual general meeting of the Board, for the purposes of paragraph 115k (c).”.

11. After section 47 of the Principal Act, the following section is inserted:

Other payments to the Corporation

“47aa. (1) Where under subsection 115q (1) an amount, being the Corporation’s administrative costs in relation to a Board for a particular period, is deducted from the sum of the other amounts mentioned in that subsection, an amount equal to the deducted amount must be paid to the Corporation.

“(2) Amounts payable under subsection (1) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.”.

Expenditure of money of the Corporation

12. Section 48 of the Principal Act is amended by adding at the end of paragraph (1) (a) the following word and subparagraph:

“or (iii) a Product Board on behalf of the Corporation; and”.

Audit

13. Section 56 of the Principal Act is amended by omitting subsection (7) and substituting the following subsection:

“(7) A person who fails to comply with a requirement under subsection (6) is guilty of an offence.

Penalty: $1,000.”.

Repeal of Division 8 of Part II

14. Division 8 of Part II of the Principal Act is repealed.

General Committees

15. Section 73 of the Principal Act is amended by omitting from subsection (1) “(other than product group committees)”.

Delegation by Corporation

16. Section 74 of the Principal Act is amended:

(a) by omitting from paragraph (1) (a) “(including a product group committee)”;

(b) by inserting after paragraph (1) (a) the following paragraph:

“(aa) a Board;”.

Repeal of Part IV and substitution of new Part

17. Part IV of the Principal Act is repealed and the following Part is substituted:

“PART IV—PRODUCT BOARDS

“Division 1—Establishment, functions and powers of Product Boards

Establishment of Product Boards

“100. (1) Where the regulations declare the establishment of a Product Board in relation to a particular horticultural product or class of horticultural products and specify the name for the Board:

(a) a Board is established in respect of that horticultural product or class of horticultural products; and

(b) the Board has the name specified in the regulations.

“(2) Where a Board is established, the regulations may provide that, to the extent or in the cases specified in the regulations, references to the Corporation in any other Act, or in regulations under any Act, are to be read as references to the Board.

Board is body corporate etc.

“101. (1) Each Board:

(a) is a body corporate; and

(b) is to have a common seal; and

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

“(2) The common seal of a Board is to be kept in such custody as the Board directs, and is not to be used except as authorised by the Board.

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

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

(b) presume the imprint was duly affixed.

Functions

“102. (1) Subject to subsection (2), the functions of a Board are:

(a) to encourage, assist, facilitate, promote and co-ordinate the export of its Australian Board products; and

(b) to improve:

(i) the efficiency and competitiveness of its Board industries; and

(ii) the quality of those Australian Board products; and

(iii) the producing of those Australian Board products, whether by growing, harvesting or processing such products; and

(iv) the handling, storing, transporting, processing or marketing of those Australian Board products;

particularly with a view to enhancing the exportability of those Australian Board products; and

(d) to encourage, assist, facilitate and promote the marketing in Australia of those Australian Board products, particularly between the States, between States and Territories, between Territories and in the Territories; and

(e) to co-operate with:

(i) persons and bodies representative of its Board industries; and

(ii) Commonwealth, State and Territory authorities concerned with its Board industries or the export of its Australian Board products.

“(2) The regulations may exclude from the functions of a Board any of the functions mentioned in subsection (1).

“(3) Regulations made for the purposes of subsection (2) do not operate to prevent the fulfilment by a Board of contractual obligations incurred before the commencement of those regulations.

Powers

“103. (1) A Board has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular, may:

(a) negotiate contracts for the carriage of its Australian Board products to be exported from Australia (including the carriage of such products within Australia); and

(b) negotiate insurance contracts in relation to those Australian Board products; and

(d) collect and publish statistics in relation to its Australian Board products; and

(e) make charges for work done, services rendered, and goods and information supplied by it; and

(f) with the written approval of the Minister:

(i) form, and participate in the formation of, companies; and

(ii) subscribe for and purchase shares in, and debentures and other securities of, companies; and

(iii) enter into partnerships; and

(iv) participate in joint ventures and arrangements for the sharing of profits; and

(g) enter into contracts; and

(h) appoint agents and attorneys, and act as an agent for other persons; and

(j) accept gifts, grants, bequests and devises made to it, and act as trustee of money and other property vested in it on trust; and

(k) do anything incidental to any of its powers.

“(2) Before making an application to the Minister for an approval under paragraph (1) (f), a Board must consult the Corporation, and the application must be accompanied by any written comments of the Corporation.

“(3) An approval under paragraph (1) (f):

(a) may be of general or particular application; and

(b) may be given subject to specified conditions and restrictions.

Powers to be exercised in accordance with Corporation guidelines

“104. In exercising its powers, a Board must have regard to any general guidelines issued by the Corporation.

Minister may give directions in exceptional circumstances

“105. (1) Subject to subsection (2), the Minister may give written directions to a Board in relation to the performance of its functions and the exercise of its powers, and the Board must comply with the directions.

“(2) The Minister must not give a direction to a Board under subsection (1) unless the Minister:

(a) has informed the Board, in writing, that the Minister is considering giving the direction; and

(b) has given the Chairperson of the Board an opportunity to discuss the need for the proposed direction with the Minister; and

(c) is satisfied that, because of the existence of exceptional circumstances, it is necessary to give the direction to the Board in order to ensure that the performance of the functions, or the exercise of the powers, of the Board does not conflict with major government policies.

“(3) Subject to subsection (4), where the Minister gives a direction to a Board under subsection (1):

(a) the Minister must cause a copy of the direction:

(i) to be published in the Gazette as soon as practicable after giving the direction; and

(ii) to be laid before each House of the Parliament within 15 sitting days of that House after giving the direction; and

(b) the annual reports of the Corporation applicable to periods in which the direction has effect must include:

(i) particulars of the direction; and

(ii) an assessment of the impact that the direction has had on the operations of the Board during the period.

“(4) Subsection (3) does not apply in relation to a particular direction if:

(a) the Minister, on the recommendation of the Board, determines, in writing, that compliance with the subsection would, or would be likely to, prejudice the commercial activities of the Board; or

(b) the Minister determines, in writing, that compliance with the subsection would be contrary to the public interest.

Corporation may require Chairperson to attend a Corporation meeting

“106. (1) The Corporation may request the Chairperson of a Board to attend a meeting of the Corporation and advise or inform the Corporation about the Board’s activities.

“(2) The Chairperson must comply with such a request as far as practicable.

Consultations with industry representatives etc.

“107. (1) Without limiting the generality of subsection 103 (1), a Board may make arrangements for consultations between it and:

(a) eligible industry bodies or members of eligible industry bodies; or

(b) Commonwealth, State and Territory authorities concerned with:

(i) its Board industries; or

(ii) the export of its Australian Board products.

“(2) Arrangements made by a Board under subsection (1) may provide for:

(a) the Board’s agreeing to meet travel expenses reasonably incurred by a person in connection with consultations with the Board; and

(b) the Board’s agreeing to meet expenses (other than travel expenses) reasonably incurred by an eligible industry body, or a member of an eligible industry body, in connection with consultations with the Board.

“(3) Where a Board makes arrangements for consultations under subsection (1), it may inform the Corporation and allow the Corporation the opportunity to participate in the consultations.

“Division 2—Constitution of Boards

Constitution of Boards

“108. (1) A Board consists of:

(a) a Chairperson; and

(b) 5 other members, each representing a different one of the following fields of expertise:

(i) the growing or processing of the relevant Board products;

(ii) the exporting of such products;

(iii) the harvesting, handling, storing, transporting, processing or marketing of such products;

(iv) business management or finance;

(v) marketing or product promotion.

“(2) The performance of the functions and the exercise of the powers of a Board are not affected merely because of vacancies in the membership of the Board.

Appointment of members

“109. (1) The members of a Board are to be appointed in writing by the Corporation.

“(2) Before appointing the Chairperson of a Board, the Corporation must consult the eligible industry bodies of that Board.

“(3) Subject to subsection (4), the nominated members of a Board are to be appointed from persons nominated by eligible industry bodies under section 113.

“(4) If, in following the procedure in section 113, the Corporation receives no nomination within the time specified in subsection 113 (2), the Corporation may appoint a person to the vacancy.

“(5) An appointment takes effect on the day specified in the appointment.

“(6) The appointment of a person as a member of a Board is not invalid because of a defect or irregularity in or in connection with the person’s nomination or appointment.

Acting Chairperson

“110. (1) The Corporation may appoint a member of the Board to act as the Chairperson of a Board:

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

(b) during any period, or during all periods, when the Chairperson of the Board is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy must not continue so to act for longer than 12 months.

“(2) Anything done by or in relation to a person purporting to act as Chairperson of a Board is not invalid because:

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

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

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

Term of office

“111. (1) Subject to this Act, a member holds office for the term (not exceeding 3 years) specified in the appointment, but is eligible for re-appointment.

“(2) If a nominated member of a Board ceases to hold office before the end of the term of appointment, another person may be appointed,

in accordance with this Act, in the member’s place until the end of the term.

“(3) The Corporation must not appoint a person as a member of a Board for more than 3 consecutive terms.

Application of certain provisions to members of Boards

“112. Sections 19 to 25 apply to a Board as if:

(a) a reference to a member of the Corporation were a reference to a member of the Board (whether or not the member of the Board is also a member of the Corporation); and

(b) a reference to the Minister were a reference to the Corporation; and

(d) a reference to a nominated member of the Corporation were a reference to a nominated member of the Board; and

(e) a reference to the Corporation were a reference to the Board; and

(f) subsection 20 (7) and the words “(other than the Managing Director)” (wherever occurring) were omitted.

Nominations for appointment

“113. (1) Where there is a vacancy among the nominated members of a Board, the Corporation must notify the Board’s eligible industry bodies and request the bodies jointly to nominate to the Corporation a person for appointment to the Board as a nominated member.

“(2) The eligible industry bodies must, within 3 months after receiving a request, nominate a person qualified in the field of expertise in relation to which the vacancy occurred.

“(3) The nomination must be accompanied by a statement supporting the nomination and setting out details of the person’s qualifications and experience.

“(4) Only one person may be nominated for each vacancy.

“(5) The eligible industry bodies may nominate a person for appointment even if the Corporation has previously rejected a nomination of that person for another appointment.

“(6) The Board may reimburse eligible industry bodies for reasonable costs incurred in nominating a person under this section.

Corporation may request further information

“114. Where the Corporation considers the information contained in the statement accompanying a nomination by eligible industry bodies to be inadequate, the Corporation may request them to provide the

Corporation, within a specified period, with further specified information in relation to the person.

Corporation may reject nomination

“115. Where the Corporation is not satisfied that a person nominated by eligible industry bodies should be appointed as a member of the Board, the Corporation may, by notice in writing, reject the nomination and may request the nomination of another person.

Meetings

“115a. (1) Subject to subsection (2), a Board may hold such meetings as it determines from time to time.

“(2) The Chairperson of a Board may call a meeting of the Board at any time.

“(3) The Chairperson of a Board is to preside at all meetings of the Board at which he or she is present.

“(4) If the Chairperson and the Acting Chairperson of a Board are not present at a meeting of the Board, the members present are to appoint one of their number to preside.

“(5) At a meeting of a Board:

(a) 4 members constitutes a quorum; and

(b) a question is to be decided by a majority of the votes of the members present and voting; and

“(6) Each Board must keep minutes of its meetings.

“(7) A Board may invite a person to attend a meeting for the purpose of advising it or informing it on any matter.

“Division 3—Corporate plan and annual operational plans for Boards

Corporate plan for a Board

“115b. (1) A Board must, as soon as practicable after its establishment, prepare a corporate plan.

“(2) A Board must, before 1 March in each financial year to which its corporate plan relates (whether or not it prepared a corporate plan in that year under subsection (1)), review and revise the plan.

“(3) A Board:

(a) may revise its corporate plan at any time; and

(b) must revise its corporate plan if required to do so by the Corporation.

“(4) Before preparing or revising its corporate plan, a Board must consult the Corporation and the Board’s eligible industry bodies.

“(5) A corporate plan as prepared under subsection (1) must include a statement of the objectives of the Board, and an assessment of the market and economic outlook for the relevant Board industries for:

(a) if the plan is prepared in the first 9 months of a financial year—that financial year and the next 4 financial years; or

(b) if the plan is prepared in the last 3 months of a financial year— the next 5 financial years.

“(6) A corporate plan, as revised under subsection (2), must include a statement of the objectives of the Board, and an assessment of the market and economic outlook for the relevant Board industries for the financial year immediately following the financial year in which the corporate plan is revised and for the next 4 financial years.

“(7) A corporate plan must also:

(a) outline the strategies and policies that the Board intends to adopt in order to achieve its objectives; and

(b) set out the Board’s performance indicators identified under section 115e.

“(8) A corporate plan, or a revision of a corporate plan, must be submitted to the Corporation as soon as practicable after it is prepared, and, in the case of a revision under subsection (2), not later than 1 March of the financial year to which it relates.

“(9) A corporate plan, or a revision of a corporate plan, has no effect until approved by the Corporation.

Annual operational plans of a Board

“115c. (1) When a Board is preparing its corporate plan under subsection 115b (1), or revising its corporate plan under subsection 115b (2), it must prepare an annual operational plan for the earliest financial year to which the corporate plan or the corporate plan as so revised, as the case may be, will relate.

“(2) An annual operational plan for a financial year must:

(a) contain an estimate of the Board’s receipts and expenditure for the financial year; and

(b) specify:

(i) the programs that the Board proposes to carry out; and

(ii) the resources that the Board proposes to allocate to each such program; in giving effect to the corporate plan during the financial year.

“(3) A Board:

(a) may revise the annual operational plan at any time; and

(b) must revise the annual operational plan if the Corporation requires the Board to do so and gives written reasons for the requirement.

“(4) An annual operational plan, and a revision of an annual operational plan:

(a) must be submitted to the Corporation as soon as practicable after it is prepared; and

(b) has no effect until it is approved, in writing, by the Corporation.

“(5) The Corporation must approve an annual operational plan, or a revision of an annual operational plan, unless of the opinion that the plan, or the plan as proposed to be revised, as the case may be, is inconsistent with the corporate plan of the relevant Board.

Board to comply with corporate plan and annual operational plans

“115d. To the extent that it is practicable to do so, a Board must ensure that the performance of its functions, and the exercise of its powers, is consistent with, and designed to give effect to, its corporate plan and the applicable annual operational plan.

“Division 4—Accountability

Performance indicators

“115e. (1) In developing strategies to achieve its objectives, a Board must identify, where practicable, performance indicators against which the success of the strategies and of their implementation by the Board may be measured.

“(2) Performance indicators may be revised by the relevant Board as appropriate.

“(3) Performance indicators must be identified and revised in consultation with the Board’s eligible industry bodies.

Information to be supplied to the Corporation

“115f. (1) A Board must, before the 31 August following the end of each financial year, prepare and give to the Corporation a report of its operations during that year.

“(2) Without limiting the generality of subsection (1), each report must include:

(a) an assessment of the Board’s performance during the year as measured against any performance indicators set out in the corporate plan; and

(b) an assessment of the extent to which the Board’s operations during the year have:

(i) achieved the objectives stated in the corporate plan; and

(ii) implemented the annual operational plan applicable to the year; and

(i) significant capital works programs (if any) undertaken by the Board during the year; and

(ii) significant acquisitions and dispositions of real property by the Board during the year; and

(iii) companies formed by the Board, and companies in whose formation the Board participated, during the year; and

(iv) shares and securities subscribed for, purchased and disposed of by the Board during the year; and

(v) partnerships entered into by the Board during the year; and

(vi) joint ventures, and arrangements for the sharing of profits, entered into by the Board during the year; and

(vii) variations of the corporate plan, and of the applicable annual operational plan, approved by the Corporation during the year.

“(3) A Board must, before the 15 October following the end of each financial year, give the Corporation financial statements for that year in such form as the Minister for Finance approves in writing.

“(4) Before giving financial statements to the Corporation under subsection (1), a Board must submit them to the Corporation auditor, who must report to the Minister:

(a) whether, in the auditor’s opinion, the statements are based on proper accounts and records; and

(b) whether the statements are in agreement with the accounts and records and, in the auditor’s opinion, show fairly the financial transactions and state of the affairs of the Board; and

(c) whether, in the auditor’s opinion, the receipt, expenditure and investment of money, and the acquisition and disposal of assets, by the Board during the year have been in accordance with this Act; and

(d) as to such other matters arising out of the statements as the auditor considers should be reported to the Minister.

“(5) If a Board is established in the last 3 months of a financial year, this section has effect as if the period from its establishment to the end of that financial year were included in the next financial year.

Board to convene annual general meeting

“115g. (1) Each Board must cause an annual general meeting to be held in each financial year after the financial year in which it was established, at a time and place determined by the Board.

“(2) A Board must ensure that a period of not more than 15 months elapses between its annual general meetings.

“(3) If a Board is established in the last 3 months of a financial year, this section has effect as if the Board had been established during the next financial year.

“115h. (1) Each Board must compile and maintain, in accordance with the regulations, a register of persons referred to in subsection (2).

“(2) A Board must enter in its register the prescribed particulars about any person who:

(a) became liable to pay a levy or an export charge in relation to that Board during the immediately preceding financial year or the first three months of the current financial year; and

(b) has applied to be registered.

“(3) A Board must remove entries from its register in accordance with the regulations.

“(4) A Board must not use a list otherwise than for the purposes of this Division.

“(5) In this section:

‘person’ includes a partnership and the trustee or trustees, from time to time, of a trust estate.

Notice of the convening of an annual general meeting

“115j. (1) A Board must, not later than 70 days before the day on which an annual general meeting is to be held in a financial year, cause a notice to be published in a newspaper that circulates throughout Australia, specifying the day, time and place of the meeting.

“(2) In addition to publishing a notice under subsection (1), a Board:

(a) must give a copy of the notice to the Corporation; and

(b) must give copies of the notice to each of its eligible industry bodies; and

(c) may cause particulars of the annual general meeting to be made public in such a way as the Board determines at any time before the day referred to in subsection (1).

Purpose of annual general meeting

“115k. The purpose of a Board’s annual general meeting is to provide an opportunity for the payers of a levy or export charge related to the Board:

(a) to consider a report by the Chairperson of the Board on the activities of the Board since its establishment or its last annual general meeting, as the case requires; and

(b) to consider any audited financial statement of the Board produced since its establishment or its last annual general meeting, as the case requires; and

(c) to consider a report by the Chairperson of the Corporation on the activities of the Corporation since the Board was established or since the Board’s last annual general meeting, as the case requires; and

(d) to debate, and vote upon, any motion that the Board recommend to the Minister that a variation be made to a levy or to an export charge; and

(e) to debate, and vote upon, any motion of no confidence in the Board or its Chairperson.

Motions of no confidence

“115l. (1) Where a motion of no confidence in a Board or in its Chairperson is moved at an annual general meeting:

(a) the person presiding at the meeting must cease to preside until the motion is voted on; and

(b) that person is to select an employee of the Board to preside until the motion is voted on.

“(2) Where a motion of no confidence in the Chairperson of a Board is passed at the meeting, the Corporation must:

(a) terminate the Chairperson’s appointment within 1 month after the meeting; and

(b) within 2 months after the meeting, appoint another person as Chairperson.

“(3) Where a motion of no confidence in a Board is passed at an annual general meeting:

(a) the office of each of the nominated members is taken to be vacant for the purposes of section 113 immediately after the meeting; and

(b) the Corporation must:

(i) terminate the appointment of each member within 1 month after the meeting; and

(ii) within 2 months after the meeting, appoint another person as Chairperson; and

(iii) as soon as practicable, appoint, under section 109, nominated members to the vacant positions.

“(4) A person whose appointment is terminated under subparagraph (3) (b) (i) is eligible for appointment under subparagraph (3) (b) (iii).

Special general meeting

“115m. (1) A Board may at any time cause a special general meeting to be held at a time and place determined by the Board.

“(2) The purpose of a special general meeting is to enable registered levy payers to debate, and vote upon, any motion that the Board recommend to the Minister that a variation be made to a levy charge or to an export charge, to meet special circumstances.

“(3) The Board must, not later than 14 days before the day on which a special general meeting is to be held:

(a) cause a notice to be published in a newspaper that circulates throughout Australia, specifying the day, time and place of the meeting; and

(b) give copies of the notice to each eligible industry body.

Conduct of annual general meetings and special general meetings

“115n. (1) An annual general meeting or a special general meeting of a Board may be attended by:

(a) the members of the Board; and

(b) the registered levy payers of the Board; and

(d) persons invited by the Board to attend the meeting; and

(e) such employees and consultants of the Board as the Chairperson determines, having regard to the business of the meeting.

“(2) An annual general meeting of a Board may also be attended by the Chairperson of the Corporation or his or her nominee.

“(3) The Chairperson of a Board must preside at a general meeting of the Board at which he or she is present.

“(4) A registered levy payer of a Board is entitled to vote upon any matter to be determined at a general meeting.

“(5) Each Board must keep a record of the proceedings of its general meetings.

Regulations may provide for certain matters

“115p. The regulations may make provision about all or any of the following:

(a) notifying a Board of the terms of any motion proposed to be moved by a registered levy payer at an annual general meeting or a special general meeting;

(b) notifying registered levy payers of:

(i) the day, time and place of a general meeting of the relevant Board; and

(ii) the terms of motions proposed to be moved at the meeting; and

(iii) other matters relevant to the conducting of the meeting;

(c) the appointment of persons to act as proxies of registered levy payers in a general meeting of a Board and the participation of such proxies in the meeting;

(d) the method or methods by which a motion or class of motions is to be passed at a general meeting of a Board;

(e) the method of determining the number of votes that a registered levy payer who is entitled to vote at a general meeting of a Board may cast when voting at such a meeting;

(f) the adoption of a procedure relating to voting at general meetings that will ensure that amounts of levy for which a registered levy payer became liable remains confidential;

(g) the procedure by which a Board is to invite applications to become registered levy payers, and otherwise to administer its register.

“Division 5—Finance

Payment of amounts of levy and charge to Board

“115q. (1) Each Board is, immediately after the end of every prescribed period, to be paid an amount equal to the sum of such of the following amounts as were received by the Commonwealth during that prescribed period less the amount of the Corporation’s administrative costs relating to the Board for that period:

(a) amounts of levy received by the Commonwealth under section 8a of the Levy Act, in relation to the relevant Board products;

(b) amounts of export charge received by the Commonwealth under section 8a of the Export Charge Act, in relation to the relevant Board products;

(c) amounts received by the Commonwealth by way of penalty under section 8 of the Levy Collection Act in relation to amounts of levy referred to in paragraph (a);

(d) amounts received by the Commonwealth by way of penalty under section 8 of the Export Charge Collection Act in relation to amounts of export charge referred to in paragraph (b).

“(2) For the purposes of subsection (1), the amount of the Corporation’s administrative costs relating to a Board for a period is an amount prescribed in, or determined in accordance with, the regulations.

“(3) Amounts payable under subsection (1) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.

“(4) The reference in paragraph (1) (a) to amounts of levy received by the Commonwealth under section 8a of the Levy Act includes a reference to:

(a) amounts received by the Commonwealth under paragraph 7 (1) (a) of the Levy Collection Act, or under an agreement entered into under section 7b of that Act, in relation to such levy; and

(b) amounts received by the Commonwealth under subsection 7a (1) of the Levy Collection Act on account of such levy.

“(5) The reference in paragraph (1) (b) to amounts of charge received by the Commonwealth under section 8a of the Export Charge Act includes a reference to:

(a) amounts received by the Commonwealth under paragraph 7 (1) (a) of the Export Charge Collection Act, or under an agreement entered into under section 7b of that Act, in relation to such charge; and

(b) amounts received by the Commonwealth under subsection 7a (1) of the Export Charge Collection Act on account of such charge.

“(6) The reference in paragraph (1) (c) to amounts received by the Commonwealth by way of penalty under section 8 of the Levy Collection Act includes a reference to:

(a) amounts received by the Commonwealth under paragraph 7 (1) (b) of that Act; and

(b) amounts received by the Commonwealth under subsection 7a (1) of that Act, or under an agreement entered into under section 7b of that Act, in respect of penalty payable under that Act.

“(7) The reference in paragraph (1) (d) to amounts received by the Commonwealth by way of penalty under section 8 of the Export Charge Collection Act includes a reference to:

(a) amounts received by the Commonwealth under paragraph 7 (1) (b) of that Act; and

(b) amounts received by the Commonwealth under subsection 7a (1) of that Act, or under an agreement entered into under section 7b of that Act, in respect of penalty payable under that Act.

Expenditure of money of a Board

“115r. (1) The money of a Board may be expended only as follows:

(a) in payment or discharge of the expenses and liabilities incurred by the Board;

(b) in payment or discharge of any expenses and liabilities incurred by the Corporation on the Board’s behalf;

(d) in making payment to its eligible industry bodies for expenses reasonably incurred in the selection of members for nomination under section 113;

(e) in making payments to the Corporation for services provided to the Board by the Corporation;

(f) in making any other payments that the Board is authorised or required to make under this Act or another Act.

“(2) Where the Minister gives a Board written guidelines on payments to eligible industry bodies, the Board may make such payments only in accordance with the guidelines.

Application of certain provisions to Boards

“115s. (1) Sections 47a, 49, 50, 51, 53, 55 and 58 apply in relation to a Board as if:

(a) a reference to the Corporation were a reference to the Board; and

(b) a reference to the Minister were a reference to the Corporation; and

“(2) Section 52 applies in relation to a Board as if a reference to the Corporation were a reference to the Board.

Audit

“115t. (1) The Corporation auditor must:

(a) inspect and audit;

(i) the accounts and records of financial transactions of a Board; and

(ii) the records relating to assets of, or in the custody of, the Board; and

(b) immediately draw the Minister’s attention to any irregularity disclosed by the inspection and audit that, in the opinion of the Corporation auditor, is of sufficient importance to justify doing so.

“(2) The Corporation auditor may dispense with all or a part of the detailed inspection and audit of any accounts or records referred to in paragraph (1) (a).

“(3) The Corporation auditor must at least once in each financial year, report to the Minister the results of the inspection and audit carried out under paragraph (1) (a).

“(4) An authorised auditor is entitled, at all reasonable times, to full and free access to all accounts, records and other documents of a Board being accounts, records and other documents relating directly or indirectly to:

(a) the receipt or payment of money by the Board; or

(b) the acquisition, receipt, custody or disposal of assets by the Board.

“(5) An authorised auditor may make copies of, or take extracts from, any accounts, records or other documents referred to in subsection (4).

“(6) An authorised auditor may require any person to give such information in the possession of the person, or to which the person has access, as the authorised auditor considers necessary for the purposes of the functions of the Corporation auditor under this Act.

“(7) A person who fails to comply with a requirement under subsection (6) is guilty of an offence.

Penalty: $1,000.

“Division 6—General Manager

General Manager

“115u. (1) Each Board is to have a General Manager.

“(2) The General Manager is to conduct the affairs of the Board.

“(3) In conducting the affairs of a Board, its General Manager is to act in accordance with any policies determined by, and any directives given by, the Board.

“(4) All acts and things done in the name of, or on behalf of, a Board by its General Manager are to be taken to have been done by the Board.

Appointment

“115w. (1) A General Manager of a Board is to be appointed by the Board.

“(2) The Chairperson or a nominated member of a Board must not be appointed as its General Manager.

Application of certain provisions to General Managers of Boards

“115y. (1) Sections 36 to 44 apply in relation to a General Manager of a Board as if:

(a) a reference to the Managing Director of the Corporation were a reference to the General Manager of the Board; and

(b) a reference to the Corporation were a reference to the Board; and

“(2) Except with the written approval of the Minister, the Corporation may not approve terms and conditions for the General Manager of a Board that are more favourable than those which apply to the Managing Director of the Corporation.

“Division 7—Employees and Consultants

Employees

“ 115z. (1) A Board may engage such employees as it considers necessary for the performance of its functions and the exercise of its powers.

“(2) A Board is to determine the terms and conditions of employment of its employees.

“(3) A Board may not employ a person on terms and conditions more favourable than those applying to its General Manager.

Consultants

“115za. (1) A Board may engage persons with suitable qualifications and experience as consultants to the Board.

“(2) A Board is to determine the terms and conditions of engagement of its consultants.

“Division 8—Miscellaneous

General committees

“115zb. (1) A Board may establish committees under this subsection to assist it in the performance of its functions and the exercise of its powers.

“(2) A committee may be constituted wholly by members of the Board concerned or partly by members of that Board and partly by other persons.

“(3) A Board may fix the number of members of the committee required to constitute a quorum at a meeting of the committee.

“(4) Section 20 applies in relation to a member of a committee who is not a member of the Board as if the member were a nominated member of the Board.

“(5) Section 23 applies in relation to a member of a committee as if:

(a) a reference to the Corporation were a reference to the committee; and

(b) a reference to a member of the Corporation were a reference to the member of the committee (whether or not the member of the committee is also a member of the Board or the Corporation).

Delegation by Board

“115zc. (1) A Board may, by writing under its common seal, delegate all or any of its powers and functions under this Act to:

(a) the Corporation; or

(b) a committee of the Board; or

(d) an employee of the Board.

“(2) A delegate of a Board must exercise a delegated power or perform a delegated function in accordance with any directions of the Board.

Delegation by General Manager

“115zd. (1) The General Manager of a Board may, by writing, delegate to an employee of the Board all or any of his or her powers or functions under this Act.

“(2) A delegate of the General Manager of a Board must exercise a delegated power or perform a delegated function in accordance with any directions of the General Manager.”.

Object of Part

18. Section 116 of the Principal Act is amended by inserting “and Product Boards” after “the Corporation”.

Control of export of horticultural products by Corporation

19. Section 117 of the Principal Act is amended by inserting in subsection (1) “(including Board products)” after “control the export from Australia of horticultural products”.

20. After section 117 of the Principal Act, the following section is inserted:

Control of export of Board horticultural products by Board

“117a. (1) The regulations may make provision for or in relation to empowering a Board to control the export from Australia of its Board products and, in particular, may empower the Board to prohibit the export from Australia of its Board products.

“(2) Regulations made for the purposes of subsection (1) may:

(a) empower a Board to prohibit the export of its Board products absolutely; or

(b) empower a Board to prohibit the export of its Board products to a specified place; or

(c) empower a Board to prohibit the export of its Board products unless specified conditions or restrictions are complied with; or

(d) empower a Board to prohibit the export of its Board products to a specified place unless specified conditions or restrictions are complied with.

“(3) Without limiting the generality of subsection (2), regulations made for the purposes of subsection (1) in respect of a Board:

(a) may provide that the export of Board products of that Board, or the export of such products to a specified place, is prohibited unless a licence, permission, consent or approval to export the products has been granted by the Board as prescribed by the regulations; and

(b) may make provision for and in relation to:

(i) the assignment of licences and permissions; and

(ii) the granting of a licence or permission to export such

products subject to compliance with conditions or restrictions, either before or after the export of the products, by the person to whom the licence or permission is granted or any person to whom the licence or permission is assigned; and

(iii) the surrender of a licence or permission to export such products and, in particular, without limiting the generality of the foregoing, the surrender of a licence or permission to export such products in exchange for the granting to the holder of the surrendered licence or permission of another licence or permission; and

(iv) the revocation or suspension of a licence or permission, being a licence or permission that is granted subject to a condition or restriction to be complied with by a person, for contravention by the person of the condition or restriction, whether or not the person is charged with an offence in respect of the contravention.

“(4) Without limiting the generality of paragraphs (2) (c) and (d) and subparagraph (3) (b) (ii), conditions or restrictions imposed under those provisions:

(a) may require the purchaser of Board products of the relevant Board, or a person to whom such products are consigned as an agent or representative of the purchaser or exporter, to be a person approved by the Board; or

(b) may relate to all or any of the following:

(i) the price of such products;

(ii) the quality of such products, including their colour, shape, size and other characteristics;

(iii) the packaging, labelling or description of, or documentation relating to, such products;

(iv) the form of consignments of such products;

(v) the commission and fees charged by exporters and others;

(vi) the carriage or insurance of such products, including contracts for carriage or insurance; or

(c) may be required to be complied with in relation to matters or things not related to the products to which they apply.

“(5) Without limiting the generality of subsection (1), the regulations may empower a Board to charge such fees as it considers necessary to enable it to recover costs that it incurs in controlling the export from Australia of its Board products.”.

Export of horticultural products without required licence etc.

21. Section 118 of the Principal Act is amended:

(a) by inserting in paragraph (1) (a) “or a Board” after “the Corporation”;

(b) by inserting in subsection (2) “or a Board” after “the Corporation”;

Certificates for exported horticultural products

22. Section 119 of the Principal Act is amended by inserting at the end the following subsection:

“(2) Subject to the regulations, where:

(a) a Board is requested to certify any matter in connection with its Board horticultural products that have been, or are proposed to be, exported from Australia; and

(b) the board is satisfied as to the matter;

the Board may issue a certificate accordingly.”.

PART 3—AUSTRALIAN DRIED FRUITS BOARD

Division 1—Preliminary

Interpretation

23. In this Part, unless the contrary intention appears:

“assets” means property of every kind, including, for example:

(a) choses in action; and

(b) rights, interests and claims of every kind in or to property, whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing;

“Board” means the Australian Dried Fruits Board referred to in section 23;

“commencing day” means the day on which this Part commences;

“Corporation” means the Australian Horticultural Corporation established under the Horticultural Corporation Act;

“Corporation auditor” has the same meaning as in the Horticultural Corporation Act;

“Dried Fruits Corporation” means the Australian Dried Fruits Corporation established under the Dried Fruits Corporation Act;

“Dried Fruits Corporation Act” means the Australian Dried Fruits Corporation Act 1978;

“Horticultural Corporation Act” means the Australian Horticultural Corporation Act 1987.

Division 2—Repeal

Repeal

24. The Dried Fruits Corporation Act and the Dried Fruits Export Charges Act 1924 are repealed.

Division 3—Australian Dried Fruits Board

Dried Fruits Corporation to become a Board

25. (1) The Dried Fruits Corporation that was, immediately before the commencing day, in existence under the Dried Fruits Corporation Act continues in existence on and after that day under the name of the “Australian Dried Fruits Board”.

(2) Subject to this section, the Horticultural Corporation Act applies to the Board as though it were a Board established under section 100 of that Act in relation to dried fruit, being currants, raisins and sultanas.

(3) The Chairperson and members of the Dried Fruits Corporation holding office immediately before the commencing day, cease to hold office on that day.

(4) The Governor-General may make regulations providing that, to the extent or in the cases specified in the regulations, references to the Dried Fruits Corporation in any other Act, or in regulations under any Act, are to be read as references to the Board or to the Corporation.

Final report of Dried Fruits Corporation

26. (1) The Board must, as soon as practicable after the commencing day, prepare a report of the operations of the Dried Fruits Corporation for the period:

(a) beginning at the end of the last period in relation to which a report of the operations of the Dried Fruits Corporation was given to the Minister under section 36 of the Dried Fruits Corporation Act; and

(b) ending on the commencing day;

and give copies to the Minister and to the Corporation.

(2) Without limiting the generality of subsection (1), the Board must include in the report:

(a) particulars of any directions given to the Dried Fruits Corporation by the Minister with respect to the performance of that Corporation’s functions or the exercise of its powers; and

(b) a statement of the principal objectives of the Dried Fruits Corporation in the period to which the report relates and of the strategies pursued by the Dried Fruits Corporation to achieve those objectives in that period.

(3) The Board must, as soon as practicable after the commencing day, prepare and give to the Minister financial statements for the Dried Fruits Corporation for the period referred to in subsection (1), in such form as the Minister for Finance approves.

(4) Before submitting the financial statements to the Minister under subsection (3), the Board must submit them to the Corporation auditor, who must report to the Minister:

(a) whether, in the auditor’s opinion, the statements are based on proper accounts and records; and

(b) whether the statements are in agreement with the accounts and records and, in the auditor’s opinion, show fairly the financial transactions and state of affairs of the Dried Fruits Corporation; and

(c) whether, in the auditor’s opinion, the receipt, expenditure and investment of money, and the acquisition and disposal of assets, by the Dried Fruits Corporation during the period to which the report relates were in accordance with the Dried Fruits Corporation Act; and

(d) as to such other matters arising out of the statements as the auditor considers should be reported to the Minister.

(5) The Minister must cause a copy of the report and financial statements, together with a copy of the auditor’s report, to be laid before each House of the Parliament within 15 sitting days of that House after their receipt by the Minister.

Employees of Dried Fruits Corporation

27. For the avoidance of doubt, a person who, immediately before the commencing day, was an officer or employee of the Dried Fruits Corporation continues to be employed as an employee of the Board on the same terms and conditions.

PART 4—AMENDMENT OF THE DRIED SULTANA
PRODUCTION UNDERWRITING ACT 1982

Principal Act

28. In this Part, “Principal Act” means the Dried Sultana Production Underwriting Act 19822.

Directions by the Minister with respect to export prices

29. Section 15 of the Principal Act is amended by omitting “Australian Dried Fruits Corporation Act 1978” and substituting “any other Act”.

PART 5—AMENDMENT OF THE HORTICULTURAL EXPORT
CHARGE ACT 1987

Principal Act

30. In this Part, “Principal Act” means the Horticultural Export Charge Act 19873.

Rates of charge

31. Section 7 of the Principal Act is amended by inserting in subsection (1) “8a,” after “8,”.

32. After section 8 of the Principal Act, the following section is inserted:

Rates of charge destined for a Product Board

“8a. Where a Product Board is established under the Australian Horticultural Corporation Act 1987, the regulations may fix a rate of charge for the purposes of this section in relation to a class of chargeable horticultural products, being horticultural products in respect of which the Product Board was established.”.

Flexibility in relation to rates of charge

33. Section 11 of the Principal Act is amended:

(a) by inserting “8a,” after “8,”;

(b) by omitting from paragraph (c) “2” and substituting “more”.

Regulations

34. Section 14 of the Principal Act is amended by inserting after subsection (3) the following subsection:

“(3a) Before making regulations for the purposes of section 8a, the Governor-General is to take into consideration any relevant recommendation made to the Minister by the Product Board concerned.”.

PART 6—AMENDMENT OF THE HORTICULTURAL EXPORT
CHARGE COLLECTION ACT 1987

Principal Act

35. In this Part, “Principal Act” means the Horticultural Export Charge Collection Act 19874.

Refund of export charge

36. Section 11 of the Principal Act is amended:

(a) by inserting in subsection (1) “, (2a)” after “subsections (2)”;

(b) by inserting in subsection (1a) “, (2a)” after “subsections (2)”;

“(2a) Where:

(a) an amount would, apart from this subsection, be refundable by the Commonwealth under subsections (1) or (1a); and

(b) that amount was used to work out an amount that was paid to a Product Board under subsection 115q (1) of the Australian Horticultural Corporation Act 1987;

the amount of the refund must be paid by that Product Board.”.

PART 7—AMENDMENT OF THE HORTICULTURAL LEVY ACT 1987

Principal Act

37. In this Part, “Principal Act” means the Horticultural Levy Act 19875.

Rates of levy

38. Section 7 of the Principal Act is amended by inserting in subsection (1) “8a,” after “8,”.

39. After section 8 of the Principal Act, the following section is inserted:

Rates of levy destined for a Product Board

“8a. Where a Product Board is established under the Australian Horticultural Corporation Act 1987, the regulations may fix a rate of levy for the purposes of this section in relation to a class of leviable horticultural products, being horticultural products in respect of which the Product Board was established.”.

Flexibility in relation to rates of levy

40. Section 11 of the Principal Act is amended:

(a) by inserting “8a,” after “8,”;

(b) by omitting from paragraph (c) “2” and substituting “more”.

Regulations

41. Section 14 of the Principal Act is amended by inserting after subsection (3) the following subsection:

“(3a) Before making regulations for the purposes of section 8a, the Governor-General must take into consideration any relevant recommendation made to the Minister by the Product Board concerned.”.

PART 8—AMENDMENT OF THE HORTICULTURAL LEVY
COLLECTION ACT 1987

Principal Act

42. In this Part, “Principal Act” means the Horticultural Levy Collection Act 19876.

Refund of levy

43. Section 11 of the Principal Act is amended:

(a) by inserting in subsection (1) “, (2a)” after “subsections (2)”;

(b) by inserting in subsection (1a) “, (2a)” after “subsections (2)”;

“(2a) Where:

(a) an amount would, apart from this subsection, be refundable by the Commonwealth under subsections (1) or (1a); and

(b) that amount was used to work out an amount that was paid to a Product Board under subsection 115q (1) of the Australian Horticultural Corporation Act 1987;

the amount of the refund must be paid by that Product Board.”.

NOTES

1. No. 164, 1987, as amended. For previous amendments, see Nos. 51 and 99, 1988; and No. 46, 1989.

2. No. 6, 1982, as amended. For previous amendments, see No. 31, 1985.

3. No. 170, 1987, as amended. For previous amendments, see No. 48, 1989.

4. No. 171, 1987, as amended. For previous amendments, see No. 99, 1988; and No. 46, 1989.

5. No. 168, 1987, as amended. For previous amendments, see No. 47, 1989.

6. No. 169, 1987, as amended. For previous amendments, see No. 46, 1989.

[Minister’s second reading speech made in—

House of Representatives on 4 December 1990

Senate on 12 March 1991]