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1
Primary Industries Acts Amendment and Repeal Bill
2007
Primary Industries Acts Amendment and
Repeal Bill 2007
Explanatory Notes
General Outline
Short Title
The short title of this Bill is the Primary Industries Acts Amendment and
Repeal Bill 2007 ("the Bill").
Policy Objectives of the Legislation
The Bill has two policy objectives: to amend and repeal the Banana
Industry Protection Act 1989 and to amend the Sugar Industry Act 1999.
The amendment and repeal of the Banana Industry Protection Act 1989
("the BIP Act") is to implement the recommendations of an independent
review of the BIP Act to repeal that Act and dissolve the Banana Industry
Protection Board ("the Board"). This legislation is no longer necessary or
financially supported by industry and many functions of the Board are now
achieved by the Department of Primary Industries and Fisheries
("DPI&F") under the Plant Protection Act 1989 ("the PP Act").
The Sugar Industry Act 1999 ("the Sugar Act") is being amended to
implement the first stage of the phase out of the role of the Sugar Industry
Commissioner ("the Commissioner"). The Bill removes the functions of
the Commissioner as they relate to the Commissioner acting as a mediator
or arbitrator, or referring disputes in the sugar industry to mediation and
arbitration for new supply contracts. This is the first stage in the process of
removing the role of the Commissioner completely by June 2010. The Bill
also removes the current obligation for Queensland Sugar Limited ("QSL")
to fund this position, as QSL is now a wholly private sugar marketing
company with no connection to the Commissioner's responsibilities.
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Primary Industries Acts Amendment and Repeal Bill
2007
Reasons for the Bill
The amendment and repeal of the BIP Act is being progressed as a result of
major changes in the circumstances under which the BIP Act and Board
previously operated, and the current structure of the industry.
The BIP Act was first enacted in 1929 to provide a mechanism for the
collection and management of an industry levy to fund prevention and
management of pest and disease incursions, surveillance and research and
development activities in the banana industry.
The BIP Act provides for the Queensland Government (through DPI&F) to
contribute grant-in-aid funds to the Board, to match industry contributions
dollar-for-dollar. The BIP Act establishes the Board to manage the fund.
In 2000, the industry levy provisions in the Banana Industry Protection
Regulation 2000 were removed. Industry funding continued for a time as
non-statutory (voluntary) contributions, but declined steadily until 2004-
05, when payments ceased. Consequently, no government grant-in-aid
contributions have been made to the Board since 2003-2004. The present
uncertainty surrounding future contributions by industry significantly
limits the ability of the Board to plan and deliver the functions for which it
was originally intended.
Since industry contributions ceased, DPI&F has continued to directly fund
and deliver core banana biosecurity activities under the PP Act. Over time,
the PP Act and its associated regulation have evolved into the main
regulatory instrument in the State for plant biosecurity, including banana
biosecurity. As a result, many provisions of the BIP Act and functions of
the Board have become redundant.
In 2003, the then Minister for Primary Industries and Fisheries approved an
independent review of the BIP Act in response to these changes. The
Review Steering Committee sought written submissions from banana
growers and industry organisations and conducted public meetings in the
major banana growing regions of Queensland. The Review Steering
Committee recommended that the BIP Act be repealed and the Board
abolished, and that Government grant-in-aid contributions paid to the
Board be used in future to fund only the delivery of core (regulatory)
biosecurity services by DPI&F under the PP Act.
The Bill is being progressed in keeping with these recommendations.
Banana-specific biosecurity legislation is no longer needed or financially
supported by industry. The Bill is also required to address the current legal
and financial uncertainties surrounding operation of the Board and its
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Primary Industries Acts Amendment and Repeal Bill
2007
inability to perform its intended functions in the absence of industry
funding.
In regard to the amendments to the Sugar Act, the Commissioner is an
independent person, statutorily appointed under the Act by the Governor in
Council on terms and conditions, including remuneration and allowances,
stated in the instrument of appointment. The current appointed term of the
Commissioner ceases on 30 June 2007.
Following the industry deregulation which formed part of the sugar
industry reforms in 2004 and 2005, the responsibilities of the office of the
Commissioner have been considerably reduced. The future of the office has
been subject to consideration between the industry and DPI&F during this
period. Prior to these reforms, the Commissioner had a range of
responsibilities including keeping a register of cane production
agreements, being the sole member constituting the Sugar Authority and
granting exemptions from statutory vesting, assisting cane production
boards and registering cane analysis systems.
Following implementation of the 2004 and 2005 industry reforms, the
Commissioner's two remaining responsibilities involve the granting of
access rights (cane railway easements and permits to pass) over land to
facilitate harvest and supply of cane to a mill and the mediation or
arbitration, on request, of sugar industry disputes.
The Commissioner's mediation role was more frequently used by industry
when disputes arose regarding regulated industry matters, such as cane
analysis principles. With deregulation, these responsibilities no longer
exist. As the industry develops a more commercial focus, it is anticipated
that there will continue to be little demand for the Commissioner's
mediation services.
The position of the Commissioner is funded by QSL in accordance with the
requirements of section 228 of the Sugar Act. With the 2005 removal of
statutory vesting of the Queensland sugar crop in QSL, this requirement is
not sustainable. QSL is now a wholly private sugar marketing company
with no connection to the Commissioner's responsibilities, no statutory
obligations to the Queensland Government and deals only with the mills
that choose to now market their sugar through QSL. There is now no single
sugar pool against which to charge these costs as was the case under
statutory vesting. It is therefore appropriate to remove the statutory
obligation on QSL to fund the Commissioner's position.
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Primary Industries Acts Amendment and Repeal Bill
2007
Due to the reduced role of the Commissioner following deregulation, and
after consultation with stakeholders, a plan for the phasing out of the
position of the Commissioner is being implemented. It is proposed that on
30 June 2007, the first of the remaining two roles of the Commissioner, the
acting as a mediator or arbitrator in disputes, will be phased out for new
supply contracts after that date and the final role regarding granting access
rights will be removed via further amendment to come into force on 30
June 2010.
Achieving the Objectives
The Bill achieves the objectives:
(1) by amending and repealing the BIP Act and dissolving the
Board. The Bill also contains provisions to close down the
operation of the Board and to ensure that any proceedings against
the Board that may exist at the time of the commencement of the
Bill can be continued and any breaches of the BIP Act can be
continued or started by DPI&F; and
(2) by amending the Sugar Act to remove the provisions that relate
to mediation and arbitration by the Commissioner for new supply
contracts and the provisions that relate to QSL funding the
position.
Administrative Costs
There will be no appreciable administrative costs in relation to the Bill.
Fundamental Legislative Principles
The Office of the Queensland Parliamentary Counsel provided comments
in regard to the fact that all members of the Board under the BIP Act will
go out of office with no compensation payable to them. The Scrutiny of
Legislation Committee has previously commented on similar provisions
providing for the dissolution of statutory bodies and queried whether
current members of the bodies being dissolved would suffer financial
detriment as a result of the provisions.
However, membership of the Board is undertaken part-time only and
members are paid sitting fees and allowances for attendance at board
meetings. The fees are low and designed to compensate members for the
time absent from normal employment. As Board members will not need to
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Primary Industries Acts Amendment and Repeal Bill
2007
be absent from employment when the Board is dissolved, compensation is
not justified.
Furthermore, the Bill provides that employees of the Board are terminated
at the Bill's commencement. However, there are currently no employees
and there is no intention to hire any employees before the commencement
date. This provision was put in the proposal to address the slim chance that
employees will be hired between the writing of the Bill and the
commencement of the Act, and will put any potential employees on notice
that their employment will terminate at that time.
The Office of the Queensland Parliamentary Counsel has stated that they
believe these provisions are reasonable.
Consultation
Consultation about the repeal of the BIP Act was undertaken when banana
industry organisations submitted their views on the report and
recommendations of the 2003 independent review of that Act.
The `Queensland Government Position Paper: Repeal of the Banana
Industry Protection Act 1989' ("the Position Paper") was developed in
response to the recommendations of the review, and to the views and issues
raised by industry organisations in response to the review
recommendations. The Position Paper was formally announced and made
available for industry and community comment with the Premier's
approval on 12 December 2006. Comments on the Position Paper were
sought from the community and industry, including major industry bodies
Growcom (representing the Queensland horticulture industry), the
Australian Banana Grower's Council (ABGC) and Banana Growers
Queensland (BGQ). Overall, industry's response indicated support for the
proposal to repeal the BIP Act and dissolve the Board.
Members of the Board advised of their support for the proposal to repeal
the Act and dissolve the Board.
Consultation for the Sugar Act was undertaken by correspondence and
discussions with the major sugar milling, growing and marketing
organisations, namely the Australian Sugar Milling Council ("ASMC"),
CANEGROWERS, Australian Cane Farmers Association ("ACFA") and
QSL.
ASMC and CANEGROWERS, the major grower representative body, have
given support to the proposal based on a three year transition.
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Primary Industries Acts Amendment and Repeal Bill
2007
Both bodies consider that further consideration is required in regard to access
rights in the longer term and an industry/Government working group is to be
established to consider longer term alternatives for the future
administration of access rights.
ACFA has not supported the removal of the statutory office.
QSL is seeking the removal of its funding obligation from 30 June 2007.
Queensland Treasury and the Departments of Premier and Cabinet,
Communities, Employment and Industrial Relations and State
Development were consulted during the development of this Bill. All
matters raised by these agencies were addressed and the agencies expressed
their support for the proposals.
Notes on Provisions
Part 1 Preliminary
Short Title
Clause 1 states that the short title of this Act is the Primary Industries Acts
Amendment and Repeal Act 2007.
Commencement
Clause 2 provides that Part 3 of the Act commences on 1 July 2007 or the
day of assent, whichever is the later.
Part 2 Amendment of Banana Industry
Protection Act 1989
Act amended in pt 2
Clause 3 provides that Part 2 of the Act amends the Banana Industry
Protection Act 1989.
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Primary Industries Acts Amendment and Repeal Bill
2007
Amendment of s 3 (Definitions)
Clause 4 inserts new definitions in section 3 of the BIP Act.
Insertion of new ss 31-38
Clause 5 inserts the new sections 31-38 in the BIP Act.
Section 31 provides that on the dissolution day (the day of assent of the
Primary Industries Acts Amendment and Repeal Act 2007), the assets and
liabilities of the former fund become the assets and liabilities of the State.
The fund referred to is that administered by the Board for delivery of the
Board's banana biosecurity services. The Board holds no separate assets
and does not report to Parliament. Its financial affairs are combined with,
and audited as part of, the DPI&F's Annual Report. It is expected that the
assets of the fund will be almost zero at the time of assent.
Section 32 provides for continuity of proceedings and matters by or against
the Board for the purposes of allowing the start or completion of
proceedings and matters which could have been, or were, started before
dissolution. No proceedings by or against the Board were underway prior
to the drafting of this legislation.
Section 33 provides that persons employed by the Board will have their
employment terminated lawfully under the Industrial Relations Act 1999
on the dissolution day. No compensation is payable to a person whose
employment ceases. No persons are currently employed by the Board at
the time of the drafting of this legislation. The only persons receiving
finance from the Board immediately prior to the drafting of this legislation
were Board members. This is dealt with separately under section 34.
Section 34 states that each person who was a member of the Board,
immediately before the dissolution day goes out of office on that day, and
that no compensation is payable to a Board member when this occurs. The
Board is a part-time body and members are only paid sitting fees. The
sitting fees paid are low and designed merely to compensate a member for
the time absent from normal employment. Since termination of the
appointment means that a member will no longer need to be absent from
normal employment, compensation for loss of the sitting fees is not
justified.
Section 35 provides for the person appointed as secretary to the Board to go
out of office on the dissolution day and that no compensation is payable for
the dismissal. The person currently appointed as the secretary to the Board
is a public servant and is not paid for holding the office. As section 34(4)
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Primary Industries Acts Amendment and Repeal Bill
2007
provides that a Board secretary who is a public servant will not have their
employment as a public servant affected, there will be no disadvantage to
that officer in no longer holding that role.
Section 36 provides that a person authorised by the Board to exercise on its
behalf the powers conferred by section 21 of the BIP Act ceases, on
dissolution day, to be authorised to exercise the powers. No authorisations
of persons made under section 21 of the BIP Act were in force immediately
prior to the drafting of this legislation.
Section 37 provides for the continuity and commencement of proceedings
for an offence against the repealed Act by the State and for the provisions
of the repealed Act relevant to the proceedings to continue to apply after
the repeal. There were no current or outstanding proceedings as instigated
by inspectors or otherwise in relation to the repealed Act immediately prior
to the drafting of this legislation.
Section 38 repeals the BIP Act immediately after the dissolution day.
Part 3 Amendment of Sugar Industry
Act 1999
Act Amended in pt 3
Clause 6 provides that Part 3 of the Act amends the Sugar Industry Act
1999.
Omission of s 5 (Notes in text)
Clause 7 omits section 5 of the Sugar Act. Section 14(4) of the Acts
Interpretation Act 1954 states that notes in the text of an Act are part of the
Act. Therefore there is now no need to have a section stating this. It is
contemporary drafting practice to remove provisions of this type.
Amendment of s 34 (Parties must use dispute resolution
process stated in supply contract)
Clause 8(1) omits section 34(2) of the Sugar Act which refers to sections
38 and 39 of that Act. As there will no longer be dispute resolution
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Primary Industries Acts Amendment and Repeal Bill
2007
processes that refer to the Commissioner, it is necessary to omit this
reference to them in that Act.
Clause 8(2) renumbers section 34(3) as section 34(2).
Omission of ss 38 and 39
Clause 9 omits sections 38 and 39 of the Sugar Act. In line with the
gradual phasing out of the role of the Commissioner, from commencement
there will no longer be dispute resolution services as envisioned by those
two sections available for future supply contracts. The Commissioner will
no longer have the power to refer parties to mediation or act as a mediator
and will no longer be able to refer disputes to arbitration or act as an
arbitrator.
Dispute resolution services in supply contracts entered into on or after 1
July 2007, will now be commercially decided as negotiated between the
parties. This is the usual process between parties in other industries.
Amendment of s 72 (Variation and cancellation of access right,
dispute resolution and enforcement)
Clause 10(1) omits section 72(9) of the Sugar Act. Section 72(9) of that
Act provides for the Commissioner to mediate in disputes about the
exercise of an access right. In line with the phasing out of the role of that
office, the Commissioner will no longer be mediating in these disputes.
Clause 10(2) renumbers section 72(10) and (11) as section 72(9) and (10).
Amendment of s 223 (Functions of commissioner)
Clause 11(1) omits section 223(b) and (c) of the Sugar Act. Section 223(b)
is being repealed as part of the phasing out of the Commissioner's
functions to do with mediation. Section 223(c) is being repealed because it
is a spent provision and no longer has any legal application.
Clause 11(2) renumbers section 223(d) as section 223(b).
Amendment of s 228 (Commissioner's budget)
Clause 12(1) and (2) omit section 228(3) and (4) of the Sugar Act to
remove the reference to QSL funding the position of the Commissioner.
QSL is now a wholly private sugar marketing company with no connection
to the Commissioner's responsibilities, no statutory obligations to the
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Primary Industries Acts Amendment and Repeal Bill
2007
Queensland Government and only deals with mills who choose to now
market their sugar through QSL. It is no longer appropriate for the position
to be funded by this body.
Clause 12(2) also omits section 228(6) which is a spent provision which no
longer has any legal effect.
Clause 12(3) renumbers section 228(5) and (7) as section 228(4) and (5).
Amendment of s 230 (Commissioner's power to delegate)
Clause 13 omits section 230(2) of the Sugar Act which provides for the
Commissioner to be able to delegate the Commissioner's powers to
mediate under section 72(9). As this section is being repealed, this
delegation power is unnecessary.
Insertion of new ch 9
Clause 14 inserts a new Chapter 9, (sections 288-292) into the Sugar Act.
Chapter 9 contains transitional provisions that relate to the Primary
Industries Acts Amendment and Repeal Act 2007.
Section 288 provides for definitions for the new Chapter 9 in the Sugar Act.
Section 289 is a transitional provision that allows for any existing
mediation or arbitration for dispute about terms of a supply contract in
place before commencement to continue as if the dispute resolution
provisions had not been repealed. This provision ensures that there is no
disadvantage to parties who were already in the process of initiating action
before that date.
Section 290 is a transitional provision that allows parties who have supply
contracts that list the procedure in the repealed sections 38 and 39 of the
Sugar Act as their dispute resolution procedure, to continue to use the
provisions as if they had not expired. This transitional provision will only
apply for three years. As most supply contracts have a period of less than
three years, this should aid a smooth transition for parties to supply
contracts and will enable those contracts to continue. Parties to supply
contracts will then be able to negotiate a new procedure for dispute
resolution when the term of their current contract ends.
Section 291 is a transitional provision that states that if there are any supply
contracts that still contain reference to the Commissioner at the end of the
transitional period, the contracts will have to be varied under section 35 of
the Sugar Act to provide for a different dispute resolution process.
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Primary Industries Acts Amendment and Repeal Bill
2007
Section 292 is a transitional provision that states that any new supply
contract that is entered into after commencement cannot refer to the
procedure for dispute resolution under the repealed sections 38 and 39 of
the Sugar Act.
© State of Queensland 2007