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1
Sugar Industry and Other Legislation Amendment
Bill 2003
SUGAR INDUSTRY AND OTHER
LEGISLATION AMENDMENT BILL 2003
EXPLANATORY NOTES
General Outline
Short Title
The short title of the Bill is Sugar Industry and Other Legislation
Amendment Bill 2003.
Objectives of the Legislation
To amend the Sugar Industry Act 1999 (the Act) to:
· transfer the functions of the Bureau of Sugar Experiment
Stations (BSES) to a private industry-owned company limited by
guarantee;
· transfer assets and liabilities of BSES to the new entity;
· remove control of sugar variety issues from Sugar Industry Act
1999 and control these under the Plant Protection Act 1989; and
· enable Cane Protection and Productivity Boards (CPPBs) to
dissolve by 30 June 2004.
Reasons for the policy objectives of the Bill
Bureau of Sugar Experiment Stations (BSES)
BSES is a statutory body constituted under the Act. Its objective is to
conduct research, development and extension activities for the sustainable
production of commercial crops of cane and its products.
Since 2000 the Queensland Government has implemented major
structural reform in the sugar industry with the transfer of ownership of
bulk sugar terminals, the marketing of raw sugar, and CANEGROWERS
organisation to industry ownership.
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Sugar Industry and Other Legislation Amendment
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The BSES Board and all three major representative industry
organisations agreed that the next step was the transfer of functions, assets
and liabilities to an industry-owned entity, being a company limited by
guarantee. In 2001, the Government established a joint industry/
Government Steering Committee to investigate and develop
recommendations to Government for the transfer of the BSES to the
industry.
The Steering Committee investigated a broad range of options and
consulted widely with industry to arrive at a majority position and
recommendation for incorporation. That recommendation was to transfer
the functions, assets and liabilities of BSES to an industry-owned entity, a
company, to be registered under the Corporations Act 2001 (Cth), and
limited by guarantee.
With transfer to non-statutory body status, it will be inappropriate for
BSES to maintain a number of its present regulatory functions.
Consequently, a system for approval of sugarcane varieties for the purposes
of pest and disease management only is to be maintained with a new
provision for approved varieties to be included under the Plant Protection
Act 1989 (PPA) to replace existing provisions under the Sugar Industry Act
1999. Authority for approval of varieties is to be transferred from BSES
Chief Executive Officer to Director-General Department of Primary
Industries.
Cane Protection and Productivity Boards (CPPBs)
CPPBs are statutory bodies established under the Act to enhance the
productivity of the sugar industry at the local mill area by increasing the
quantity and improving the quality of cane produced by crops grown in its
area. CPPBs provide advice and help growers in the local mill area with
supply of clean plant cane and cooperate in the prevention, control and
eradication of pests and diseases.
Under the repealed Sugar Industry Act 1991, CPPBs were funded by a
levy per tonne of cane produced in the mill area, paid fifty percent by
growers and fifty percent by the mill. The new Act removed a major factor
for CPPBs being under statute, namely the compulsory funding
arrangements following doubts about their constitutional validity. It also
prevented the subsidised commercial activities of some CPPBs, such as the
sale of farm chemicals. Some CPPBs consequently recognised, at a forum in
Townsville on 14 and 15 December 1999, that there would be advantages in
non-statutory operation of their activities. A subsequent amendment to the
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Sugar Industry and Other Legislation Amendment
Bill 2003
Act in 2000 allowed for the voluntary incorporation of the then twenty
CPPBs to non-statutory entities that are not limited by shares.
Six CPPBs have taken that route and three others have amalgamated into
the one statutory CPPB. Most of the 12 remaining statutory CPPBs until
recently had no incentive to change structure but three advised last year
that they wish to dissolve and not transfer into another body, to save the
local industry money. Such dissolution without transfer requires a change
in the Act.
The way in which the policy objectives are to be achieved by the Bill
Transfer of functions of the BSES.
The functions of the BSES are to be transferred to a private industry-
owned company, limited by guarantee. The transfer company will be under
the control of the Queensland sugar industry and will not in any way
represent the State and will not be entitled to any of the privileges and
immunities of the State.
The proposed date of transfer will be on or before 30 June 2003. On the
transfer day, all of the Board's assets and liabilities will be transferred to,
and become the assets and liabilities of the transfer company. On the
transfer day BSES will be dissolved.
All employees of BSES will transfer to the new entity, with all employee
benefits and conditions to be maintained.
On the transfer day, the appointment of members of the board of
directors of BSES will be terminated. No compensation is to be payable
for the termination of the appointments.
After the transfer day the transfer company will not have any role under
the Sugar Industry Act and sections of the Act relating to BSES are
amended. However, for the purposes of continuity, the BSES member on
the twelve CPPBs will remain a member until dissolution of the individual
CPPBs.
Plant Health Management
Control of sugarcane varieties for the purposes of pest and disease
management only, through the concept of restricting the planting of non-
approved cane, is to be removed from the Sugar Industry Act 1999 and
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Sugar Industry and Other Legislation Amendment
Bill 2003
addressed through the Department of Primary Industries (DPI) under the
Plant Protection Act 1989.
Authority for approval of varieties is to be transferred from BSES Chief
Executive Officer to Director-General DPI, with a provision for declaration
of approved varieties of plants (not just sugar cane) for planting and
cultivating in pest quarantine areas, and varieties that may be grown as
plant crops and those that may be ratooned in each pest quarantine area.
CPPBs
CPPBs are to be abolished. CPPBs will be given until 30 June 2004 to:
· transfer assets and liabilities to a nominated legal entity that will
carry out similar functions. In this case all assets, liabilities and
employees will transfer to the new entity; or
· dissolve. In this case employment of any staff is terminated
unless a receiving entity agrees to employ them and assets and
liabilities will be transferred to, and become the assets and
liabilities of a nominated person or entity. On the transfer day
the CPPB will be dissolved.
Selection of the entity or entities for transfer of assets/liabilities is to be
determined by the CPPB and agreed on by the mill and a majority of
growers in the mill area.
If, on 30 June 2004 any CPPBs have failed to carry out that transfer, then
any employees and all assets and liabilities, except for uncommenced
possible future legal actions, will be transferred to BSES or its replacement
entity.
BSES will not be obliged to carry on the functions of any CPPBs that
transfer assets and liabilities to BSES upon dissolution. Any uncommenced
future legal actions will be transferred to the Sugar Industry Commissioner.
Alternatives to the Bill
BSES Incorporation.
There are three options with respect to BSES:
Option 1: maintain the "status quo" by retaining BSES as a statutory
authority.
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Sugar Industry and Other Legislation Amendment
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Option 2: transfer of the functions, assets and liabilities of BSES to an
industry-owned entity - company limited by shares.
Option 3: transfer of the functions, assets and liabilities of BSES to an
industry-owned entity - company limited by guarantee (preferred
option).
Option 1 is not the preferred option because for so long as BSES remains
as a statutory body, it is "owned" by and accountable to the Queensland
Government and Government is potentially exposed to pressure from
industry for a "rescue package" in the event of any financial problems with
BSES.
The most significant factor in determining between Options 2 and 3 is the
distinction between a company designed to provide a service, which in
itself may generate a surplus, but which was not intended for subsequent
distribution (which would lead to a company limited by guarantee) or a
profit, which would ultimately be used to distribute profit to shareholders,
(which could lead to a Company Limited by Shares). A profit driven
company is less well suited to a service provider model preferred by
industry.
Following industry consultation, Option 3: company limited by
guarantee, which would be a taxable entity, emerged as the preferred
structure for the new entity. The dominant view was that BSES's
replacement corporation should also be a service driven organisation.
Additional factors in support of Option 3 over Option 2 were the higher
cost of establishing a share-based entity and concerns with regard to
potential problems associated with determining equity for distribution of
shares.
The company limited by guarantee - taxable option offers the following
benefits:
· Well suited to service provider model;
· Control by industry;
· Would not require issue of shares and maintenance of a share
register which would provide easier management of the entity;
· Could access a larger range of funding and obtain R&D tax
concessions;
· Any profit could be used to reduce industry contribution rate;
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Sugar Industry and Other Legislation Amendment
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· If necessary, can be converted to a share holding company in
future.
CPPB Dissolution.
(1) There are two options for CPPBs:
Option 1: maintain CPPBs as statutory authorities and add a
voluntary provision for their dissolution.
Option 2: remove CPPBs from statute (preferred option).
The preferred option is not only to allow for the dissolution of CPPBs,
but also to provide for the removal of CPPBs remaining under statute. It is
no longer apropriate to retain any Cane Protection and Productivity Boards
as statutory bodies. More contemporary stuctures are required to provide
the productivity-related services.
This is particularly the case now that there is no longer a statutory CPPB
in every mill area. Since mid 2000 eight of the 20 CPPBs have dissolved
and three others are keen to dissolve without transfering their functions to
another entity. Consequently the remaining Boards are not in a position to
deliver functions across the whole of the Queensland industry.
If any CPPB does remain as at 30 June 2004, their assets, liabilities and
employees are to be transferred to the replacement corporation for BSES.
Consultation with BSES indicates agreement to this policy proposal,
including taking on known CPPB liabilities. BSES already has some level
of fiduciary responsibility with regard to CPPBs given that each statutory
CPPB currently has a BSES officer as a Board member, which will
continue up until 30 June 2004. Any contingent liabilities (legal
proceedings by or against a CPPB) are to be transferred to the Sugar
Industry Commissioner.
Estimated costs for government implementation
Following incorporation of the replacement corporation, BSES will
transfer its assets and liabilities to that industry-owned entity. At the time
of transfer of assets, the State's operating position and net worth would be
reduced by the amount of the BSES's net assets.
Government has not contributed to CPPBs and they are not included on
the State Asset Base. Transfer of CPPBs will have no impact on the State's
operating position and net worth unless they are transferred to the BSES
while it is still controlled by the State.
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Arrangements for cane plant health management following transfer by
BSES of its functions to the industry-owned replacement corporation have
been negotiated with BSES and arrangements have been made which will
be revenue neutral.
Transfer duty will be incurred on the transfer of assets and liabilities to
the replacement entities of both BSES and the CPPBs. Other duty
implications may arise depending on the circumstances of BSES and the
CPPBs. While duty is payable an application can be lodged for an ex-
gratia payment of any duty liability arising from the transactions proposed.
Applications for ex-gratia relief are determined by the Under Treasurer
pursuant to the Financial Administration and Audit Act 1977 based on the
particular circumstances and merits of each case. The CPPBs vary in size,
staff employed (0 to 10 full-time), liabilities owed and assets held (from
$34,000 to $1 million). The total net assets of the twelve CPPBs are about
$2.8m.
The payment of transfer duty and other duty is a major concern for
CPPBs. DPI has formally requested ex gratia relief from transfer or other
duties payable as a consequence of CPPBs either dissolving or
incorporating under the amendments proposed.
Consistency with fundamental legislative principles
Clause 22, New section 358, Clause 23 - New section 366 and Clause 14
- New section 211 - termination of appointment without compensation
New sections 358 and 366 provide that no compensation is payable to
Board members of BSES and CPPBs upon termination of their
membership of the Boards. Compensation is not justificable because the
existing Chair of BSES is taking on a similar paid position within the new
entity so will not be disadvantaged by the changes. The BSES has
determined that existing BSES Board members will also be retained for
continuity purposes. CPPB Board members are paid sitting fees that are
designed to compensate for time spent away from their businesses. After
dissolution there will no longer be a requirement on their time and
accordingly compensation is not required.
New section 211 provides for the termination of employment of any
employees of those CPPBs that choose to dissolve rather than transfer their
functions to another entity. The new clauses provide that those employees
will have the rights given to an employee whose employment has been
lawfully terminated under the Industrial Relations Act.
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Sugar Industry and Other Legislation Amendment
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Those CPPBs that are choosing to dissolve are CPPBs in areas that no
longer have a requirement for services like those currently provided.
Under these circumstances there is no replacement body to whom
employees can be transferred. However, there is not expected to be any
impact on employees of these CPPBs because in those areas discussions
are being held with other prospective employers BSES and/or the mill
about reemploying those employees. In all cases the prospects of
immediate re-employment are good.
Clause 31 - Insertion of new section 11A - whether the clause has
sufficient regard to the rights and liberties of individuals.
New section 11A, which is being inserted into the Plant Protection Act
1989, provides power for an inspector to permit exemption from an
approved plant declaration. The power of an inspector to exempt from
compliance with an approved plant declaration is necessary to allow the
planting and cultivation of non-approved cane varieties for research
purposes, in accordance with the conditions of an inspector's approval.
This power already exists in s 11(7) of the Act in a pest quarantine area.
The application of approved varieties of cane also applies to pest
quarantine areas, and it is consistent to provide the same process. The
capacity for an inspector to give an inspector's approval that allows a
person to plant and cultivate a non-approved variety of cane is subject to
the inspector being satisfied that the planting and cultivation in accordance
with the approval does not pose a risk of spreading a pest in the pest
quarantine area.
New section 11A also imposes a high penalty of 1,000 penalty units.
The penalties for non-compliance should be the same as those in s 11 (10)
of the Act which is 1,000 penalty units. The consequences of planting and
cultivating non-approved cane in a pest quarantine area, without an
inspector's approval or contrary to an inspector's approval and failure to
comply with the directions of an inspector in respect of non-approved cane
poses the same risk of spreading a pest as non-compliance with s 11 (7) of
the Act.
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Sugar Industry and Other Legislation Amendment
Bill 2003
CONSULTATION
Community
BSES were consulted with regard to timing of the transfer of assets to
industry. All other issues had been raised with industry stakeholders
previously.
Representatives of all twelve CPPBs, the peak industry bodies and the
Sugar Industry Commissioner have been consulted on the proposed
amendments.
Government
Treasury, the Office of State Revenue (OSR) and Department of
Industrial Relations were consulted with regard to timing of the transfer of
assets to industry, transfer duty ex-gratia relief and industrial relations
respectively.
Results of consultation
Community
With regard to timing of the transfer of assets to industry, BSES
preferred that the new entity commence from 1 July 2003. After
negotiation with BSES and Treasury, agreement was reached that transfer
of assets occur by 30 June 2003.
All twelve CPPBs were consulted on the proposed CPPB amendments
and all are in favour. Nine are expected to incorporate and three to dissolve
by June 2004. No CPPB employees are expected to lose employment.
CPPBs indicated that the sunset date should be no earlier than 30 June
2004 to ensure they had sufficient time to incorporate or dissolve. Some
requested passage of the legislation if possible twelve months prior to that
date for the same reason and some requested it so as to enable dissolution
by 30 June 2003.
Some CPPBs noted that Government should not impose transaction
costs on CPPBs, such as Transfer Duty, as they claimed it was a benefit to
Government (and not to the CPPBs) for the CPPBs to become non-
statutory. Also, they were aware that no transfer duty was paid when five
previous CPPBs voluntarily incorporated in August 2002.
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Sugar Industry and Other Legislation Amendment
Bill 2003
Several CPPBs particularly welcomed the proposals as they linked
favourably with the need to change the way productivity advice should be
delivered in the regions.
The Sugar Industry Commissioner and peak sugar industry organisations
support the proposed amendments.
Government
All Government Departments support the proposals in this Bill.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Short title
Clause 1 provides that the short title of the Act is the Sugar Industry and
Other Legislation Amendment Act 2003.
Commencement
Clause 2 provides that the following sections commence on assent:
· 3 (Act amended in pt 2);
· 7 to 15 (these sections amend the existing sections of the
Sugar Industry Act 1999 that enable Cane Protection and
Productivity Boards to transfer to replacement entities);
· 19 to 21 (which are minor amendments and corrections to
the Act and transitional provisions);
· 26(3) (amendment of dictionary); and
· Schedule other than items 1 to 3, 13 and 14.
The remaining provisions of the Act commence on a day to be fixed by
proclamation.
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Sugar Industry and Other Legislation Amendment
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PART 2--AMENDMENT OF SUGAR INDUSTRY ACT
1999
Act amended in pt 2
Clause 3 provides that this part amends the Sugar Industry Act 1999 (the
Act).
Omission of ch 2, pt 3 (Cane Variety Control)
Clause 4 omits chapter 2, part 3 of the Act (Cane Variety Control). This
is being done because the concept of restricting the planting of non-
approved cane, currently in this part of the Sugar Industry Act, will be
transferred to the Plant Protection Act 1989. Since these provisions exist
mainly to provide protection from plant disease (they also provide for mill
processing characteristics/quality and effect on the environment), they
most appropriately belong in the Plant Protection Act, which is specifically
for that purpose.
Omission of ch 4, pt 5 (Bureau of Sugar Experiment Stations)
Clause 5 omits chapter 4, part 5 of the Act (Bureau of Sugar Experiment
Stations). This omission reflects the fact that this Bill will abolish the
Bureau of Sugar Experiment Stations and transfer its assets, liabilities and
employees to a company limited by guarantee.
Omission of ch 4, pt 7 (Cane Protection and Productivity Boards)
Clause 6 omits chapter 4, part 7 of the Act (Cane Protection and
Productivity Boards). This omission reflects the fact that this Bill will
abolish Cane Protection and Productivity Boards.
Amendment of ch 4, pt 8, hdg
Clause 7 omits the heading of chapter 4 part 8 of the Act. The heading
will change from "Replacement corporations for Cane Protection and
Productivity Boards" to "Replacement entities for Cane Protection and
Productivity Boards" to reflect the fact that CPPB's will no longer be
restricted to transferring to a corporation but can also transfer to a person.
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Sugar Industry and Other Legislation Amendment
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Amendment of s 198 (Definitions for pt 5A)
Clause 8 amends the definitions for part 5A in section 198 of the Act.
Replacement of s 200 (Decision to transfer to non-statutory
corporation)
Clause 9 omits section 200 of the Act relating to decisions to transfer the
assets and liabilities of CPPBs to non-statutory corporations to reflect the
fact that CPPB's will no longer be restricted to transferring to a corporation
but can also transfer to a person. The amendment also removes restrictions
on the content of the constitution of the receiving entity.
Amendment of s 201 (Things that must be decided for the transfer)
Clause 10 amends section 201 of the Act to reflect the fact that the
CPPB's will no longer be restricted to transferring to a corporation but can
also transfer to a person.
Replacement of s 202 (Deciding the replacement corporation)
Clause 11 will replace the existing section 202 of the Act which sets out
the conditions under which a CPPB Board can decide on a replacement
corporation. The amendment will remove a number of restrictions in the
existing section 202. A CPPB will no longer be restricted to transferring to
a corporation but can also transfer to a person. In addition, the receiving
entity will no longer be restricted in relation to the contents of its
constitution. However, the Board will now only be able to decide on a
replacement entity where a majority of growers and the mill owner consent
to the transfer.
Amendment of s 203 (Notice of decision about replacement
corporation)
Clause 12 amends section 203 of the Act which required a CPPB that
has decided to transfer to a replacement corporation to give a notice of that
decision to the Minister. The amendments reflect the fact that:
· a CPPB will no longer be restricted to transferring to a
corporation but can also transfer to a person;
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Sugar Industry and Other Legislation Amendment
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· the receiving entity will no longer be restricted in relation to the
contents of its constitution;
· the replacement entity may or may not be continuing the
functions of the Board.
Amendment of s 204 (Minister's decision)
Clause 13 amends section 204 of the Act which relates to the Minister's
decision about whether to agree to transfer to dissolve a Cane Protection
and Productivity Board and transfer its assets and liabilities to a
replacement entity. The amendment requires the Minister before approving
the transfer to be satisfied that the replacement entity will deal with the
assets for the benefit of the relevant mill owner and the growers who supply
cane to a mill.
Replacement of s 211 (Employees)
Clause 14 replaces the current section 211 of the Act which deals with
the status of employees of Cane Protection and Productivity Boards on
transfer of the Board to a receiving entity. The new section reflects the fact
that a board may now either transfer its functions to another entity or
merely dissolve. If the functions are being transferred, then the employees
will transfer to the receiving entity. If the Board is dissolving then on the
transfer day any employees of a board will have their employment
terminated unless the receiving entity agree to continue that employment.
An employee whose employment is terminated has the rights given to an
employee under the Industrial Relations Act.
Insertion of ch 4, pt 8, div 5
Clause 15 inserts a new chapter 4, part 5, division 5. The new part deals
with expiry and savings provisions once all CPPB's have been dissolved.
Amendment of s 223 (Functions of commissioner)
Clause 16 amends section 223 of the Act by giving the Sugar Industry
Commissioner the additional function of receiving any liabilities
transferred to the Commissioner under new section 364 upon the
automatic dissolution of any CPPBs. Automatic dissolution occurs if any
CPPB has not transferred to a receiving entity or dissolved by 30 June
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2004. The liabilities referred to are legal proceedings. All other assets and
liabilities would transfer to the BSES replacement entity.
Insertion of new s 223A
Clause 17 inserts a new section 223 of the Act that sets out the powers of
the Sugar Industry Commissioner. The new section will give the
Commissioner the power to deal with any liabilities transferred to the
Commissioner from Cane Protection and Productivity Boards that are
automatically dissolved under new section 364.
Amendment of section 228 (Commissioner's budget)
Clause 18 amends section 228 of the Act relating to the Sugar Industry
Commissioner's budget to enable the commissioner to ask the Minister to
vary the budget where the commissioner accepts any liabilities of a Cane
Protection and Productivity Board under new section 364.
Amendment of s 253 (Improper use of information prohibited)
Clause 19 amends section 253 to include a new subsection (2) that
provides that the offence of improperly using information provided is a
misdemeanour. This amendment is consistent with current policy of
clarifying whether offences are crimes or misdemeanours.
Insertion of new s 255A
Clause 20 inserts a new section 255A that sets out evidentiary provisions
relating to a proceeding against this Act involving false or misleading
information or a false or misleading document or statement.
Omission of chs 8 and 9
Clause 21 omits:
· chapter 8 - dealings with bulk sugar terminal assets and
liabilities. This part is no longer required because the transfer of
all bulk sugar terminal assets and liabilities to Sugar Terminals
Limited has now been completed;
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Sugar Industry and Other Legislation Amendment
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· chapter 9 - dealings with corporation assets and liabilities. This
part is no longer required because the transfer of assets and
liabilities of the Queensland Sugar Corporation (QSC) to
Queensland Sugar Limited has now been completed and QSC
has been dissolved.
Insertion of new ch 10, pt 3
Clause 22 inserts a new chapter 10 part 3 in the Act dealing with
transitional matters arising from the passage of this Bill.
NEW PART 3--TRANSITIONAL PROVISIONS FOR
SUGAR INDUSTRY AND OTHER LEGISLATION
AMENDMENT ACT 2003
New Division 1--Preliminary
New section 344 - Definitions for pt 3
New section 344 provides definitions for the new part 1 of chapter 8 of
the Act.
New Division 2--Dissolution of BSES
New Subdivision 1--Preliminary
New section 345 - Definitions for div 2
New section 345 provides definitions for the new division 2 of chapter 8
of the Act.
New section 346 "Meaning of under the control of the Queensland
sugar industry"
New section 346 defines what is meant in this chapter by "under the
control of the Queensland sugar industry". BSES can only transfer to a
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Sugar Industry and Other Legislation Amendment
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corporation that is under the control of the Queensland sugar industry
which means that at least 75% of the members and 75% of the voting right
rest with mill owners and growers.
New Subdivision 2--Steps to transfer and dissolution
New section 347 - Decision to transfer to replacement corporation
New section 347 requires the Bureau of Sugar Experiment Stations
(BSES) to make a decision to dissolve and transfer its assets and liabilities
to a company limited by guarantee that is under the control of the
Queensland sugar industry.
New section 348 - Things that must be decided for the transfer
New section 348 requires that BSES decide the following matters for the
transfer to a company limited by guarantee:
· the day of the proposed transfer;
· the corporation to which it will make the transfer.
New section 349 - Conditions for transfer
New section 349 provides that BSES can decide to transfer to a
corporation only if:
· the corporation gives written consent to the transfer;
· the corporation is under the control of the Queensland sugar
industry. The corporation is under the control of the Queensland
sugar industry if the industry has at least 75% control of it;
· the corporation is a company limited by guarantee; and
· BSES is satisfied that on transfer, the constitution, officers and
any obligations on members of the corporation will be
appropriate.
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New section 350 - Notice of decision about replacement corporation
New section 350 requires BSES to give the Minister notice of its
decision to transfer to a replacement corporation.
New section 351 - Minister's decision
New section 351 requires the Minister to consider the notice given by
BSES about its decision to transfer to a replacement corporation under new
section 350. If the Minister is satisfied that the requirements of the Act
have been complied with the Minister must, by notice to BSES, approve
the transfer day or set another transfer day provided it is on or before 30
June 2003. If the Minister is not satisfied, the Minister may give a direction
to BSES. BSES must comply with a direction.
New section 352 - Transfer and dissolution
New section 352 provides that on the transfer day all assets and
liabilities are transferred to the replacement corporation and BSES is
dissolved.
New section 353 - Replacement corporation does not represent the
State
New section 353 provides that the replacement corporation does not
represent the State and cannot make the State liable for the debts and
obligations of the corporation or any other person.
New subdivision 3--Provisions facilitating transfer
New section 354 - Registration of transferred assets
New section 354 sets out evidentiary provisions relating to the transfer
of assets from a board to the replacement corporation.
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Sugar Industry and Other Legislation Amendment
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New section 355 - References to BSES
New section 355 provides that references to the BSES in an Act or
document existing before dissolution will, from its dissolution, take effect
as references to the replacement corporation.
New section 356 - Continuity of proceedings and matters
New section 356 provides that proceedings that could have been taken if
BSES continued to exist, may be taken against the replacement
corporation.
New section 357 - Employees
New section 357 provides that, on the transfer date, employees of BSES
become employees of the replacement corporation. An employee's
entitlements, such as leave, are carried over to the replacement corporation
with no interruption to the employee's continuity of service.
New section 358 - Directors cease holding office
New section 358 provides that each person who was a director of BSES
goes out of office on the transfer day. No compensation is payable for the
persons losing office on the transfer day.
New section 359 - Officer to remain member of cane protection and
productivity board
New section 359 provides that officers of BSES who are directors of
CPPB Boards remain members of those Boards after the dissolution of
BSES. Section 181 of the Act sets out the membership of CPPB Boards.
Section 181 provides that one of the members of the Board will be an
officer of the BSES nominated by BSES. In order to ensure continuity of
the Boards after the dissolution of BSES, this amendment will ensure that
the former BSES nominee remains a member of the Board.
Insertion of new ch 10, pt 3, div 3
Clause 23 Inserts a new chapter 10, part 3, division 3 into the Act dealing
with the automatic dissolution of Cane Protection and Productivity Boards
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if no replacement entities are nominated or the Boards dissolved by 30
June 2004.
New Division 3--Automatic dissolution of cane protection and
productivity boards if no replacement entity
New section 360 Definitions for div 3
New section 360 provides definitions for the new division 3.
New section 361 Automatic dissolution
New section 361 provides for the automatic dissolution of CPPBs.
Automatic dissolution will occur where a board has not transferred to a
receiving entity or dissolved before 30 June 2004. Upon automatic
dissolution of a CPPB, its assets and liabilities are transferred to the
replacement corporation of BSES at which time the Board of the CPPB is
dissolved and the Board's productivity area is abolished.
New section 362 Registration of transferred assets
New section 362 sets out evidentiary provisions relating to the transfer
of assets from a board to the replacement corporation of BSES.
New section 363 References to board
New section 363 provides that references to the CPPB Board in an Act or
document existing before dissolution will, from its dissolution, take effect
as references to the replacement corporation of BSES.
New section 364 Continuity of proceedings and matters
New section 364 provides that existing proceedings, or proceedings
which could have been started by or against the former CPPB may be
continued or started by or against the Sugar Industry Commissioner.
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Sugar Industry and Other Legislation Amendment
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New section 365 Employees
New section 365 provides that on the transfer date, employees of CPPBs
become employees of the replacement corporation for BSES. An
employee's entitlements, such as leave, are carried over to the replacement
corporation with no interruption to the employee's continuity of service.
New section 366 Members cease holding office
New section 366 provides that each person who was a member of the
Board of a CPPB goes out of office on the transfer day. No compensation
is payable for the persons losing office on the transfer day.
Insertion of new ch 10, pt 3, div 4
Clause 24 inserts a new chapter 10, part 3 division 4 dealing with
appeals that had commenced against the BSES prior to dissolution.
New Division 4--Appeals
New section 367 Definitions for div 4
New section 367 provides definitions for the new division 4.
New section 368 Appeal to Magistrates Court against BSES's decision
New section 368 provides that any appeals to the Magistrates Court
against decisions of the BSES prior to its dissolution lapse on its
dissolution. This is appropriate because the decisions that would have been
open to appeal relate to the planting of cane varieties. This Bill will move
those issues to the Plant Protection Act 1989 with decisions being made by
the Director-General. Given this, it would be more appropriate for a new
decision to be made by the Director-General under the new provisions than
to continue with an appeal.
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New section 369 Appeal to District Court against Magistrates Court's
decision
New section 369 provides that any appeal to the District Court from a
decision of the Magistrate's Court on a decision by BSES prior to its
dissolution will lapse on its dissolution. As with the preceding clause this
is appropriate because the decisions that would have been open to appeal
relate to the planting of cane varieties. This Bill will move those issues to
the Plant Protection Act 1989 with decisions being made by the Director-
General. Given this, it would be more appropriate for a new decision to be
made by the Director-General under the new provisions than to continue
with an appeal.
Insertion of new ch 10, pt 3, div 5
Clause 25 inserts a new chapter 10, part 3, division 5 relating to
applications for injunctions made by, or the grant of injunctions to, BSES
or CPPBs prior to their dissolution.
New Division 5--Injunctions
New section 370 Definitions for div 5
New section 370 provides definitions for the new division 5.
New section 371 Undecided applications taken to have lapsed
New section 371 provides that any undecided applications for
injunctions made by BSES or a CPPB prior to its dissolution lapses.
New section 372 Injunctions of no effect after commencement
New section 372 provides that any injunction taken out by BSES or a
CPPB prior to its dissolution lapses.
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Sugar Industry and Other Legislation Amendment
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Amendment of schedule (Dictionary)
Clause 26 amends the schedule to the Act, which contains the dictionary,
to omit terms that will become redundant on the commencement of this
amending Act and insert relevant new definitions.
PART 3--AMENDMENT OF LIENS ON CROPS OF
SUGAR CANE ACT 1931
Act amended in pt 3
Clause 27 provides that this part amends the Liens on Crops of Sugar
Cane Act 1931.
Omission of s 16 (Application of proceeds of crop to costs of sugarcane
protection etc.)
Clause 28 omits section 16 of the Act. Section 16 provides that proceeds
of any sugarcane shall be applied in satisfaction of any sum lawfully
payable and not duly paid to a Cane Protection and Productivity Board
established under the Sugar Industry Act 1999 for the supplying of any
fumigant, insecticide, fungicide, poison, or other material, or more than 1
of those materials, for the purpose of the control with respect to that
sugarcane of any pest within the meaning of that Act and for any services
rendered in connection with the use of that material for that purpose, in
priority to all other sums, secured or unsecured, payable from such
proceeds including any sum due and owing to any lienee and secured by a
lien duly registered under this Act and in force over that sugarcane. With
the dissolution of Cane Protection and Productivity Boards this provision
will become redundant.
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Sugar Industry and Other Legislation Amendment
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PART 4--AMENDMENT OF PLANT PROTECTION ACT
1989
Act amended in pt 4
Clause 29 provides that this part amends the Plant Protection Act 1989.
Omission of s 6AA (Act applies to sugar cane)
Clause 30 omits section 6AA of the Act. This section currently provides
that:
· a reference to the chief executive is taken to be a reference to the
chief executive officer of the Bureau of Sugar Experiment
Stations established under the Sugar Industry Act 1999; and
· if under section 16, an inspector takes measures on behalf of a
body established under the Sugar Industry Act 1999, the
provisions of sections 17 and 18 apply as if a reference to the
Crown were a reference to the body; and
· if a matter or thing is seized by an inspector acting on behalf of a
body established under the Sugar Industry Act 1999, sections 25
and 26 apply as if a reference to the Crown were a reference to
the body; and
· a reference in section 28 to the Crown includes a reference to a
body established under the Sugar Industry Act 1999.
The section is being omitted consequential of the dissolution of the
BSES which carried on functions under the Plant Protection Act by virtue
of section 6AA.
Insertion of new s 11A
Clause 31 inserts new section 11A into the Act. The concept of
restricting the planting of non-approved cane, currently in sections 60 to 62
of the Sugar Industry Act 1999, is transferred by this amendment to the
Plant Protection Act. This is done by providing the Director-General with a
head of power to, by notice, declare approved varieties of plants (not just
sugar cane) for planting and cultivating in pest quarantine areas. The
notice will be subordinate legislation to ensure adequate drafting and
scrutiny by Parliament.
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SCHEDULE
MINOR CONSEQUENTIAL AMENDMENTS OF SUGAR
INDUSTRY ACT 1999
The schedule makes a number of minor amendments consequential on
the amendments being made by this Bill.
© State of Queensland 2003