Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
HORTICULTURE
MARKETING AND RESEARCH AND DEVELOPMENT SERVICES (REPEALS AND CONSEQUENTIAL
PROVISIONS) BILL 2000
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of the Parliamentary
Secretary to the Minister for Agriculture, Fisheries and Forestry, Senator the
Hon Judith Troeth)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS
MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
ISBN: 0642 45373X
HORTICULTURE MARKETING AND RESEARCH AND DEVELOPMENT
(REPEALS AND CONSEQUENTIAL PROVISIONS) SERVICES BILL 2000
GENERAL OUTLINE
This is the second of two Bills designed
to create a horticultural industry services company to provide marketing and
research and development to the horticulture industry. The new company will
operate under Corporations Law and replace the current statutory authorities,
the Australian Horticultural Corporation, the Australian Dried fruits Board and
the Horticultural Research and Development Corporation.
The new company
will be a not for personal profit company operating under Corporations Law that
has industry representative bodies and voluntary funding contributors as its
members, with voting rights allocated according to the amount of funds provided.
The company will provide marketing and research and development programs to
industry, based on the advice of industry advisory committees. The company will
be accountable to shareholders for the effective use of funds
provided.
This second Bill, the Horticulture Marketing and Research
and Development (Repeals and Consequential Provisions) Bill 2000 abolishes
the Australian Horticultural Corporation, the Australian Dried Fruits Board and
the Horticultural Research and Development Corporation. It also deals with
matters arising from the transition to the new industry services body and
industry export control body under the Horticultural Marketing and Research
and Development Services Bill 2000, such as transfer of staff and assets
from the statutory authorities and a 2 year period to phase in the new export
control system.
FINANCIAL IMPACT STATEMENT
The Bill provides
for the transfer of assets and liabilities of the Australian Horticultural
Corporation, the Australian Dried Fruits Board and the Horticultural Research
and Development Corporation to be transferred to the new company. The Bill also
provides for an Australian Dried Fruit Trust to be established to hold the dried
fruit industry reserves. Funds can be released from the Trust to meet the
marketing needs of the export of dried fruits.
The net value of assets to
be transferred is approximately $20m, principally involving funds held in
accounts on behalf of industry levy payers. It is estimated that the company
will achieve annual operational savings of approximately $550,000 per annum from
moving to the new single company arrangement.
The regulation of export
control powers under the new company will be similar to the way they currently
operate under the Australian Horticultural Corporation and the financial impact
will be similar, with exporters paying a modest licensing fee based on a
cost-recovery basis.
NOTES ON CLAUSES
Part 1 -
Preliminary
Clause 1: Short title
This clause provides
for the Act to be called the Horticulture Marketing and Research and
Development (Repeals and Consequential Provisions) Services Bill
2000.
Clause 2: Commencement
This clause provides for
the Act to commence at the same time as the Horticulture Marketing and
Research and Development Services Bill 2000, with Schedules 1 and 2 of this
Act to commence immediately after transfer. Schedule 3 commences upon Royal
Assent of the Horticulture Marketing and Research and Development Services
Bill 2000 or on the establishment of the proposed Administrative Review
Tribunal, whichever is later. The Bill also provides for the proposed
Privacy Act to apply when enacted.
Clause 3: Simplified
Outline
This clause provides an overview of the Act.
Clause
4: Definitions
This clause provides for terms in this Act to
defined.
Clause 5: Crown to be Bound
This clause provides
for the Act to bind the Crown but not make it liable to be prosecuted for an
offence.
Clause 6: Application of this Act (Extra -territorial
operation)
This clause provides for the Act to apply both within and
outside Australia.
Clause 7: Schedules
This clause
provides for the Act to amend or repeal earlier Acts.
Part 2 -
Transitional provisions
Division 1 - Statutory authorities' role
in transition
Clause 8: Simplified outline
This clause
provides a simplified outline of Division 1.
Clause 9: Functions of
statutory authorities
This clause provides that the functions of the
existing statutory authorities include functions to assist in the transition to
the industry arrangements, including meeting expenses.
Clause 10:
Repeal of sections
This clause provides for the repeal of this
division once the Acts establishing the statutory authorities are
repealed.
Division 2 - Transfer day
Clause 11:
Simplified outline
This clause provides a simplified outline of
Division 2.
Clause 12: Minister must determine transfer
day
This clause provides for the Minister to specify the transfer day
in writing. The transfer day must not be before section 9 of the
Horticulture Marketing and Research and Development Services Bill 2000
has come into effect for both the industry services body and the export control
body. The Minister must declare the transfer day within 6 months of
commencement of this section of the Act. It also provides for the Minister to
revoke a determination and for publication of the determination in the
Gazette within 14 days.
Clause 13: Time of
transfers
This clause provides for the time of transfer to be
immediately after the end of the day before the transfer day.
Division 3 - Transfer of assets and liabilities
Clause
14: Simplified outline
This clause provides a simplified outline of
Division 3.
Clause 15: Transfers subject to
conditions
This clause provides for conditions to be on the transfer
of assets and liabilities to the new industry services body to be specified in
the Deed of Agreement entered into by that body and the
Commonwealth.
Clause 16: Transfer of assets and
liabilities
This clause provides the mechanism for the transfer of
assets and liabilities from statutory authorities to the industry services body,
other than the ADF Trust Amount, and ensures that the industry services body is
the legal successor to these assets and liabilities.
Clause 17: ADF
Trust Amount
This clause provides for the Minister to determine in
writing the ADF trust amount and for the mechanism of transfer of this amount
from the Australian Dried Fruits Board to the Dried Fruits Trust. This
determination is to be published within 14 days in the
Gazette.
Clause 18: Transfer of pending
proceedings
This clause provides that the new body will become the
successor at law for any asset, liability, right, benefit or obligation
transferred from the statutory authorities to the industry services
body.
Clause 19 Exemption from taxation
This clause
provides that the transfer of assets or liabilities described in this Division
is not subject to stamp duty or other taxation under State or Territory
laws.
Clause 19A Operation of GST Law
The purpose of this
clause is to ensure that AFFA is entitled to receive an input tax credit
corresponding to the GST liability of transferees of the assets of the statutory
authorities.
(1) 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 and the Dried Fruits Trust from the statutory authorities is
deemed to be consideration given by the Commonwealth (which for this purpose
will be regarded as acting through AFFA). This is needed to ensure that AFFA is
able to obtain an input tax credit equal to the GST liability of the industry
services body and Dried Fruits Trust.
(2) Provides for expressions used in
the clause to have the same meaning as in the GST Act.
Clause
20: References in certain instruments
This clause provides that any
effect of certain instruments relating to the statutory authorities - where the
statutory authority is named, a party to, is favoured or is given a right -
continues to have effect in relation to the industry services
body.
Clause 21: Certification in relation to assets
This
clause provides for assets (other than money) that are transferred from the
statutory authorities to the industry services body to be certified by a
certificate that is lodged with an assets official.
Clause 22: Saving:
levies and charges
This clause provides for levies and charges
received by the Commonwealth before transfer day, under the Acts that provide
for charges and levies to be collected, but not paid out to the statutory
authorities under the Acts that establish the statutory authorities, to be paid
out of Consolidated revenue fund to the industry services
body.
Division 4 - Transfer of Staff
Subdivision A
-Preliminary
Clause 23: Simplified outline
This clause
provides a simplified outline of Division 4.
Clause 24: Transfer of
staff
This clause provides for continuity of employment for staff
currently employed by the statutory authorities.
Clause 25: Terms and
conditions of transferred employees
This clause provides for
transferred employees to be engaged by the industry services body on transfer
day on the same terms and conditions and accrued benefits as entitled to with
the statutory authorities. Further, the employee's service with the industry
services body is considered to be continuous with their service with the
statutory authority and thus the employee receives no other benefit from no
longer being employed by the statutory authority. The terms and conditions
continued under this clause would include contractual and other common law terms
and conditions, terms and conditions determined under the Acts establishing the
statutory authorities, and awards, certified agreements and other instruments
under the Workplace Relations Act 1996.
Clause 26: Variation of terms
and conditions of employment
This clause provides for the terms and
conditions of employment for transferred employees to be subject to variation in
the usual way applying to those kinds of terms and
conditions.
Subdivision B - Application of the SRC
Act
Clause 27: Continued application of the SRC
Act
This clause provides for the continued application of the SRC Act
after transfer day in relation to injuries to employees and loss of or damage to
property incurred by an employee of a statutory authority before transfer
day.
Clause 28: Commonwealth liability to meet certain SRC Act
liabilities
This clause provides for the Commonwealth to continue to
be liable after transfer day for the liabilities of the statutory authorities
under section 128A of the SRC Act incurred before the transfer day, subject to
clause 29.
Clause 29: SRC Act: rehabilitation
provisions
This clause provides for the Commonwealth to receive
co-operation from the industry services body in order for the Commonwealth to
continue to fulfil its obligations arising prior to the transfer day under the
SRC Act. This clause also provides that the SRC Act will apply to the industry
services body in some situations - as the relevant employer - after the transfer
day.
Clause 30: Premiums under the SRC Act
This clause
provides for the determination of a premium that the industry services body must
pay to the Safety and Rehabilitation Commission. This clause also provides that
if the amount of the confirmed premium is reduced as a result of a
determination, that the Secretary of the Department can direct a refund amount
for a particular financial year to be paid to the industry services body from
Consolidated Revenue Fund. Further, these directions must be
gazetted.
Subdivision C - deferred DFRDB Act
benefits
Clause 31: Saving: deferred benefits under the DFRDB
Act
This clause provides for a transferred employee to retain
deferred benefits under the DFRDB Act, if the employee was entitled to such
benefits immediately before the transfer day. Further, that employment with the
industry services body after transfer day will be considered to be public
employment for the purposes of the DFRB Act, providing the employee continues
with the industry services body.
Subdivision D - Maternity leave
provisions
Clause 32: Maternity leave starting before transfer
day
This clause provides for female employees of the statutory
authority who were on maternity leave before or on transfer day to continue to
have access to maternity leave after the employee is transferred to the industry
services body.
Clause 33: Maternity leave starting after transfer
day
This clause provides for the continuation of maternity leave
entitlements for female employees after they have transferred from the statutory
authority to the industry services body, for the period of up to 9 months after
the transfer day.
Subdivision E - Provisions relating to
superannuation
Clause 34: Application of the Superannuation Act
1922
This clause states that section 145 of this Act does not apply
to the industry services body.
Clause 35: Application of other
Superannuation Acts
This clause states that the industry services
body is not an approved authority for the purposes of the Superannuation Act
1976 or 1990.
Clause 36: Application of Superannuation Benefits
(Supervisory Mechanisms) Act 1990
This clause provides that the
Minister must not declare the industry services body to be a relevant body for
the purposes of this Act.
Subdivision F - Provisions relating to long
service leave
Clause 37: Long service leave for employees with
less than 10 years service
This clause provides for employees of the
statutory authorities who were transferred to the new body with less than 10
years service to carry over their service and entitlements for this period of
service to the industry services body, and also provides for payments in case of
ill-health, retirement and redundancy.
Clause 38: Payments in lieu
of long service leave for employees with less than 10 years
service
This clause provides for employees of the statutory
authorities who were transferred to the industry services body with less than 10
years service to receive payment for the long service leave entitlements that
they carry over to the new body. Also, this clause provides for payments in case
of ill-health, retirement and redundancy.
Clause 39: Payments on the
death of an employee
This clause provides for benefits to be paid to
relatives of employees of the statutory authorities who were transferred to the
industry services body, in the event of the death of the transferred employee
and for determining the amount of benefit to be paid.
Clause
40: Employee's long service leave credit for the purposes of sections 37 and
38
This clause provides for the calculation of the long service leave
credit of a transferred employee, for use in clauses 37 and 38.
Clause
41: Employees with at least 10 years service
This clause provides for
the benefits accrued by employees of the statutory authorities to continue when
the employee is transferred to the industry services body. However, the
transferred employee is not entitled to receive payment because they have ceased
to be in Government service.
Clause 42: Division not to affect
post-commencement long service leave rights
This clause provides that
this Division does not affect employee's post-commencement long service leave
rights.
Subdivision G - Staff with mobility
rights
Clause 43: Cessation of mobility rights
This
clause provides for employees to cease to have rights under section 6 or 7 of
the Public Service Act 1999 and to cease to be APS employees after transfer to
the industry services body.
Division 5 - Transitional period for
export controls
Clause 44: Simplified outline
This
clause provides a simplified outline of Division 5.
Clause
45: Continuation of export controls despite repeal of the AHC
Act
This clause provides for the continuation of those parts of the
Australian Horticultural Corporation Act 1987 that are necessary for the
effective operation of export control powers.
Clause 46: References to
AHC and Product Board
This clause provides for the transfer of export
control powers from the AHC and Australian Dried Fruits Board to the industry
export control body on transfer day. However, the industry export control body
cannot vary those export control arrangements that were in place immediately
prior to the transfer day.
Clause 47: Phasing out of export controls
under Part V of AHC Act
This clause provides for the current export
control framework, as set out in Part V of the Australian Horticultural
Corporation Act 1987, to continue for transitional period for 2 years from
the transfer day, and then cease.
Division 6 -Final annual
reports
Clause 48: Simplified outline
This clause
provides a simplified outline of Division 6.
Clause 49: Final Annual
Report: Australian Horticultural Corporation
This clause provides for
the Boards of these two statutory authorities to continue to exist past the
transfer day, in order to deliver a final annual report, covering the period
between July 1 2000 and the transfer day.
The Deed of Agreement entered
into by the industry services body will provide for that body to discharge any
expenses or liabilities incurred by a statutory authority in preparing the final
annual report from money transferred to the body under this Act, and also to
provide access to any records that were transferred to the industry services
body, in order to prepare the report.
Clause 50 Final Annual Report :
Australian Dried Fruits Board
This clause provides for the Board of
this statutory authority to continue to exist past the transfer day in order to
deliver a final annual report, covering the period between July 1 2000 and the
transfer day.
The Deed of Agreement entered into by the industry services
body will provide for that body to discharge any expenses or liabilities
incurred by a statutory authority in preparing the final annual report from
money transferred to the body under this Act, and also to provide access to any
records that were transferred to the industry services body, in order to prepare
the report.
Clause 51: Final Annual Report: Horticultural Research and
Development Corporation
This clause provides for the Board of this
statutory authority to continue to exist past the transfer day in order to
deliver a final annual report, covering the period between July 1 2000 and the
transfer day.
The Deed of Agreement entered into by the industry services
body will provide for that body to discharge any expenses or liabilities
incurred by a statutory authority in preparing the final annual report from
money transferred to the body under this Act, and also to provide access to any
records that were transferred to the industry services body, in order to prepare
the report.
Division 7 - Miscellaneous powers
Clause
52: Delegation of Secretary's powers
This clause provides for the
Secretary to delegate - in writing - any or all powers to an APS employee with
appropriate skill and experience. .
Clause 53: Compensation for
acquisition of property
This clause provides a right to compensation
if, as a result of the operaion of the Act, property is acquired from a person
otherwise than on on just terms.
Clause
54: Regulations
This clause provides for the Governor-General to make
regulations to carry out this Act.
Schedule 1: Repeal of
Acts
This clause repeals the two Acts establishing the three present
statutory authorities.
Schedule 2: Consequential
Amendments
This clause provides for consequential amendments
reflecting the operation of this Act and the Horticultural Marketing and
Research and Development Services Act 2000.
Schedule 3: References
to AAT
This clause allows references to AAT in the Horticulture
Marketing and Research and Development Services Act 2000 to be altered to
the Administrative Review Tribunal.
Schedule 4 : Operation of the
Privacy Act
This clause allows that when the Privacy Act 1988
applies to the export control body - which will happen when the Privacy
Amendment (Private Sector) Act 2000 commences - the remedies available to a
person under that Act (which may include compensation for loss or damage) are
still available in relation to the industry export control body in spite of the
general rule in section 25 of the Horticulture Marketing and Research and
Development Services Bill 2000.