1658, LEGISLATIVE COUNCIL, 24 March 1993
The Hon. BARBARA WIESE (Minister of Trans¬port Development): I move:
That this Bill be now read a second time.
I seek leave to have the second reading explanation inserted in Hansard without my reading it.
This Bill, together with complementary legislation in Victoria; will continue the joint scheme for the marketing of barley produced here and in that State. However, the measure represents more than an automatic renewal of the legislation and in fact, is a result of the first comprehensive review of the barley marketing scheme since its enactment in 1947. This review was undertaken in 1988-89 by a group drawn from both Governments, the Australian Barley Board and grower organisations in the two States.
The working group subsequently reported to the South Australian and Victorian Ministers and its recommendations form the basis of this Bill. There was, of course, later and lengthy consultation with grower organisations and the users of barley in order to refine the recommendations.
While many of the provisions contained in the Bill have been carried over from the current Act, the proposed measure adds refinements that will place the Australian Barley Board in a better position to respond to a grain marketing environment facing a period of change.
In that vein, the financial position within the grain industries, deregulation of the domestic wheat market and the expanded powers of the Australian Wheat Board have focussed attention on State authorities marketing their geographical portions of a grain crop or crops.
Although there is evidence of industry support for national co-ordination of the marketing function for most grains, consensus as to a desirable structure is yet to emerge. Since South Australia and Victoria believe that such consensus may take some years to evolve, they have agreed to maintain an improved form of the joint barley marketing arrangements for a further five years.
The Bill requires the two States to formally consult before continuing these arrangements beyond that term. The role of the Australian Barley Board in future, Australia-wide marketing will be a significant issue at these consultations.
In turning to particular features of the Bill, it is appropriate to reiterate that the measure is based on the recommendations of the working group previously described. However, in establishing the Australian Barley Board, the Bill strikes a compromise between the views of that, group and those of certain sectors of industry.
Accordingly, the Australian Barley Board will consist of two Ministerial nominees, two elected grower members from South Australia and four members nominated on merit, by a Selection Committee. At least one of the selected members must be a Victorian barley grower. Similarly, one of the two members with a knowledge of the barley industry must be a Victorian resident. The selection process already used by the Commonwealth and others in appointments to statutory marketing authorities encourages high quality candidates to offer themselves for appointment. This is not to suggest that elected members have proved or will prove unsatisfactory, but the positive aspects of selection should be appreciated.
The Selection Committee itself will comprise five members, four of whom will be nominated equally by the South Australian Farmers Federation Incorporated and its Victorian counterpart. Members will know that election versus selection of grower members has been debated actively in South Australia. While the Bill provides for the election of officials, certain factions maintain that the issue must ultimately be resolved by taking a poll of growers. The Bill provides for the conduct of such a poll if barley producers indicate that is their collective desire.
The Bill provides for the Australian Barley Board, through a compulsory delivery requirement, to retain its control over the export of barley and oats from South Australia and barley from Victoria. For the domestic market, the Bill establishes a framework whereby barley processors will be able to more readily source grain direct from producers.
Besides providing an element of domestic competition to the Board, this feature will allow growers and processors to enter into mutually advantageous arrangements for the production and sale of special purpose barley. The intent of the Bill is that while the Board may not actively discourage such direct sales, it will retain an element of control over them.
In this regard, deeds of agreement setting commercial and other conditions for the licensing of such sales had already been developed by the Australian Barley Board and major malting companies. However, difficulties later arose in Victoria where two influential maltsters wanted the Bill to provide for automatic licensing before signing the agreements. The Board and grower organisations resisted this demand and stalemate followed. The revised maltster licensing provisions of Part 5 of the Bill simply and directly resolve the impasse.
The Bill also allows the Board to market, at its commercial discretion, a wide range of grain crops grown in South Australia and Victoria. Marketing of those crops (other than barley and oats) will be on a voluntary basis on the part of both the Board and the grower. Cash trading will be a further option available to the Board.
In a wider monetary context, the Barley Board is entirely self- funding and no Government funds have been, or will be, required for its operations. The Bill provides that the Board's borrowing activities will be governed by South Australian financial legislation under which the Board has operated for some years.
The Bill will also enable the Board to establish grain pools on a range of criteria and to set up financial reserves to facilitate the pooling and marketing operations of the Board. Honourable Members will note that under its proposed powers, the Board may carry out or fund research and development that assists in the production or marketing of grain. The reserves could also be put to that use.
On that note, a further initiative in the Bill is the establishment of a Consultative Committee. The major function of this committee is to provide grassroots advice to the Board concerning its general policies but particularly in regard to the Board's use of financial reserves and possible joint venture arrangements with a commercial partner or partners. The joint fixing by the Ministers of a maximum reserve fund would be based on recommendations by the Consultative Committee.
Having alluded to research, the South Australian Bill transfers from the current Act provision for the deduction of ‘voluntary’ research levies as they are commonly termed. It will be recalled that the Wheat Marketing Act 1989, has already been amended to accommodate changes in the Commonwealth arena and to deposit wheat levies in the South Australian Grain Industry Trust Fund. This Bill also provides for such procedures with barley levies.
The accountability of the Australian Barley Board to government and the barley growing community will be strengthened. In addition to providing both Parliaments and each grower organisation with an annual report detailing its operations and financial position, the Board will also be required to provide both Ministers with a rolling operational plan based on a five year time horizon.
The Government believes this legislation will put into place, for the next five years, marketing arrangements that will make a significant contribution to the efficiency of the South Australian and Victorian barley industry. I commend the Bill to the House.
The provisions of the Bill are as follows:
Part I of the Bill (comprising clauses 1 to 7) contains the preliminary provisions.
Clauses 1 and 2 are formal.
Clause 3 defines words and expressions used in the Bill.
Clause 4 provides that for the purposes of this Act, the Minister and the Victorian Minister may, by notice in the Gazette, declare the grain to which this Act applies.
Clause 5 provides that Parts 4 and 5 apply to barley and oats harvested in the season commencing on 1 July 1993 and each of the next four seasons but do not apply to barley grown in a later season. Proposed subclause (2) provides that the Minister must consult with the Victorian Minister before the end of the season commencing on 1 July 1996 about the arrangements for the marketing of barley grown in South Australia or Victoria.
Clause 6 provides that it is declared that it is the intention of the Parliament that this Act and the Victorian Act implement a joint South Australian and Victorian Scheme for marketing barley grown in South Australia and Victoria. Proposed subclause (2) provides that it is also declared that it is the intention of the Parliament that this Act not be amended in any manner that may affect the operation of the joint Scheme except on the joint recommendation of the Minister and the Victorian Minister.
Clause 7 provides that the Minister may, in writing, delegate to any person any of the Minister's powers under this Act, other than any power which is to be exercised jointly with the Victorian Minister or this power of delegation.
Part 2 of the Bill (comprising clauses 8 to 26) provides for the establishment of the Australian Barley Board and its powers and functions.
Clause 8 provides that the Australian Barley Board is established as a body corporate with perpetual succession with all of the consequences at law that go with being a body corporate.
Clause 9 provides that the Board does not represent, and is not part of, the Crown.
Clause 10 provides that the common seal of the Board must be kept in such custody as the Board directs and may be used only as authorised by resolution of the Board.
Clause 11 provides that the Board consists of eight members appointed jointly by the Minister and the Victorian Minister, of whom one will be a person nominated by the South Australian Minister, one will be a person nominated by the Victorian Minister, two will be growers in South Australia (who will be elected), one will be a barley grower in Victoria nominated by the Selection Committee, two will be persons with knowledge of the barley industry (one of whom is resident in Victoria) nominated by the Selection Committee and one will be a person nominated by the Selection Committee with particular expertise. A person who is a member of the Selection Committee is not eligible for appointment as a member of the Board.
Clause 12 provides that the Selection Committee is to consist of five persons appointed jointly by the Minister and the Victorian Minister of whom two will be persons appointed from a panel nominated by the South Australian Farmers Federation Incorporation, two will be persons appointed from a panel nominated by the Victorian Farmers Federation and one (the Chairperson) will be jointly nominated by the chief executive officer of the South Australian Department of Agriculture and the chief executive officer of the Victorian Department of Food and Agriculture. The members of the Selection Committee are appointed for such period and on such terms and conditions, including payment of allowances, as the Minister and Victorian Minister determine. The clause further provides that a decision may not be made at a meeting of the Committee unless all members are present or, in the case of a meeting conducted by telephone, unless all members participate by telephone,
Clause 13 provides that the Minister and the Victorian Minister may determine selection criteria to be applied by the Selection Committee in selecting per sons for nomination.
Clause 14 provides that the Minister and the Victorian Minister will appoint one of the members appointed by either of the Ministers to be the Chairperson of the Board for such period as the Ministers determine.
Clause 15 provides that the members of the Board may elect another member to be the Deputy Chairperson of the Board.
Clause 16 provides that a member of the Board, unless an officer or employee of the public service, is entitled to be paid by the Board the remuneration and allowances (if any) fixed by the Minister and the Victorian Minister.
Clause 17 provides that a member's term of office must not exceed three years and a member is eligible for re-appointment.
Clause 18 provides the terms by which the office of a member of the Board becomes vacant including the removal from office by the Minister and the Victorian Minister under proposed subsection (3).
Clause 19 provides that if the office of a member of the Board becomes vacant for some reason other than the expiry of the term of office of the member, a person nominated for appointment to the office in accordance with clause 11 will be appointed to fill the vacancy and to hold office, subject to this Act, for the remainder of the term. However, if the vacancy occurs within six months of the expiry of the term of office of the member, the office may be left vacant for the remainder of the term.
Clause 20 provides that a member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Board must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Board. Such a disclosure must be recorded in the minutes of the meeting and, unless the Board decides otherwise, the member must not be present during any consideration of the matter by the Board, or take part in any decision of the Board with respect to the matter. It further provides that this clause does not apply to a pecuniary interest that a member has because of his or her qualification to be a member if that is an interest in common with other persons holding a corresponding qualification.
Clause 21 provides that the Board is subject to the general direction and control of the Minister and the Victorian Minister and any specific written directions given by the Minister and the Victorian Minister or by either Minister (with the written consent of the other Minister). A Minister must not give a written direction unless satisfied that, because of exceptional circumstances, the direction is necessary to ensure that the performance of the functions, or the exercise of the powers, of the Board, does not conflict with major government policies and the Board must include in each annual report directions given under this clause during the year to which the report relates.
Clause 22 provides for the manner in which the proceedings of the Board will be carried out.
Clause 23 provides that an act or decision of the Board is not invalid by reason only of a defect or irregularity in, or in connection with, the appointment of a member or of a vacancy in membership, including a vacancy arising out of the failure to appoint an original member.
Clause 24 provides that the Board may employ staff (including a chief executive) on such terms and conditions as it thinks fit and may make arrangements for using the services of any officers and employees of the public service or any public authority.
Clause 25 provides that a member of the Board is not personally liable for anything done or omitted to be done in good faith in the exercise of a power or discharge of a duty under this Act or in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act and that any liability resulting from an act or omission that, but for proposed subsection (1), would attach to a member of the Board attaches instead to the Board.
Clause 26 provides that the Governor may, if of the opinion that circumstances have arisen rendering it advisable to do so, by notice in the Gazette, remove all the members of the Board from office, but they or any of them are eligible (if otherwise qualified) for re-appointment.
Part 3 of the Bill (comprising clauses 27 to 32) deals with the objectives, functions and powers of the Board.
Clause 27 provides that the objectives of the Board are to supply marketing services to South Australian and Victorian barley growers and producers of other grains and to maximise the net returns to South Australian and Victorian barley growers who deliver to a pool of the Board by securing, developing and maintaining markets for grain and by minimising costs as far as practicable.
Clause 28 provides that the functions of the Board are—
• to control the marketing of barley and oats grown in this State and of barley grown in Victoria
• to market and promote grain in domestic and overseas markets
• to co-operate, consult and enter into agreements with authorised receivers relating to the handling and storage of grain and carriers relating to the transport of grain
• to determine standards for the classes and categories of grain delivered to the Board
• to determine standards for the condition and quality of grain delivered by authorised receivers to purchasers
• to import barley and grain; and
• to provide advice, as requested, to the Minister and the Victorian Minister about the marketing of grain.
Clause 29 provides that the Board may do all things necessary for the performance of its functions and, in particular, has the following powers—
• to acquire barley, oats and other grain
• to dispose of barley, oats and other grain
• to appoint agents, or to act as an agent, whether in or outside Australia
• to give guarantees or indemnities
• to arrange the marketing of barley, oats and other grain
• to promote, carry out or fund research and development that will assist in the production or marketing of barley, oats and other grain; and
• all other powers conferred on it by or under this Act or the Victorian Act.
Clause 30 provides that the Board may, in writing, delegate to any member of the Board, or to any employee, any of its powers under this Act, other than this power of delegation.
Clause 31 provides that for the purposes of this Act, the Board may, by notice in writing, served on the person to whom it is addressed, require the person to give to the Board, in writing, within the time specified in the notice, such information relating to barley and oats, barley and oat products or substances containing barley or oats as is specified in the notice. A person must not, without reasonable excuse refuse or fail to comply with a requirement under this section or give to the Board any information that is false or misleading in any particular. The penalty for contravention of this clause is a division 7 fine ($2 000).
Clause 32 provides that before the first anniversary of the commencement of this proposed section, the Board must submit to the Minister and the Victorian Minister a plan of its intended operations during the remaining seasons to which this Act applies and thereafter, with each annual report it submits to the Minister and the Victorian Minister, the Board must also submit a plan of operations for the remaining seasons to which this Act applies.
Part 4 of the Bill (comprising clauses 33 to 41) deal with marketing.
Clause 33 provides that subject to this Act, a person must not sell or deliver barley or oats to a person other than the Board. Subclause (2) provides that it is an offence if a person transports barley or oats which have been sold or delivered in contravention of proposed subsection (1) or bought in contravention of proposed subsection (4). Proposed subsections (1) and (2) do not apply to—
Proposed subsection (4) provides that a person must not buy barley from the grower other than under a licence or permit issued by the Board under Part 5 or oats from the grower except with the written approval of the Board. The penalties for an offence against this section are different where the offender is a natural person or a body corporate and if it is a first or subsequent offence.
Clause 34 provides that, unless it is otherwise agreed, on delivery of barley and oats to the Board, the property in the barley and oats immediately passes to the Board and the owner of the barley and oats is to be taken to have sold it to the Board at the price to be paid under this Act.
Clause 35 provides that the Board may by instrument appoint a person to be an authorised receiver for the purposes of this Act. Where a grower intends to deliver barley, oats or other grain to the Board, a delivery of the barley, oats or other grain (as the case may be) to an authorised receiver is, for the purposes of this Act, to be taken to be a delivery to the Board and an authorised receiver holds, on behalf of the Board, all barley, oats and other grain the property of the Board which is at any time in the receiver's possession. This clause further provides that an authorised receiver must not part with the possession of any barley, oats or other grain the property of the Board except in accordance with instructions from the Board or from a person authorised by the Board to give such instructions.
Clause 36 provides that any person who, after the 'declared day' in relation to a season, consigns or delivers to an authorised receiver any barley or oats harvested before that day, must make and forward to the authorised receiver a declaration stating the season during which that barley or oats were harvested. The penalty for contravening this provision is a division 8 fine ($1 000).
Clause 37 provides that the Board must market or otherwise dispose of, to the best advantage, all barley and oats delivered to it under this Act, having regard to the reasonable requirements of maltsters in this State.
Clause 38 provides that for the purpose of marketing the barley and oats of which the Board has taken delivery, the Board may establish pools in relation to barley and oats of a season. The Board may at any time transfer any barley or oats remaining in a particular pool to another pool, and/or declare a pool closed.
Clause 39 provides that if the Board sells barley or oats from a pool, the net proceeds of sale must be distributed among the growers who contributed barley or oats to the relevant pool in proportion to the quantity contributed by each grower.
Clause 40 provides that notwithstanding the other provisions of this Act, where barley of a season is sold to the Board by any person under this Act, a payment of the prescribed amount will, with the consent of the person, be made for barley research purposes out of the money payable to the person by the Board in respect of the barley.
Clause 41 provides that a person does not have a claim against the Board in respect of any right, title or interest in barley or oats delivered to the Board.
Part 5 of the Bill (comprising clauses 42 and 43) deals with stockfeed permits and maltsters licences.
Clause 42 provides that a person who applies to the Board for a permit for a specified season authorising that person to purchase barley harvested in that season from growers for stockfeed purposes in Australia must be issued with the permit within 21 days of the Board receiving the application and the fee set by the Board.
Clause 43 provides that a person who is engaged in or who proposes to engage in the business of malting or other processing of barley for human consumption who is also a party to a deed of arrangement entered into with the Board may apply to the Board for a licence for a specified season to purchase barley harvested in that season from a grower for malting or other processing in Australia for human consumption purposes. Such a licence must be issued within 21 days of the Board receiving the application and the fee set by the Board.
Part 6 of the Bill (comprising clauses 44 to 47) is entitled 'Financial'.
Clause 44 provides that the Board is a semi-government authority within the meaning of the Public Finance and Audit Act 1987 that must before 31 December of each year, apply to the Treasurer for consent to its proposed financial program for the following financial year and forward a copy of the consent and any conditions attached to it, to the Minister and the Victorian Minister.
Clause 45 provides that the Board may establish a reserve fund to provide for the costs of administering the marketing scheme and defraying any other costs of the Board. This clause further provides that the Board may pay into the reserve fund an amount not exceeding five per cent of the net proceeds derived from the sale of barley, oats or other grain and that the balance of the reserve fund must not exceed the amount set by the Minister and the Victorian Minister.
Clause 46 provides that any of the functions of the Board may be exercised by the Board, by an affiliate of the Board or by the Board or an affiliate (or both) in a partnership, joint venture or other association with other persons or bodies. This clause further provides that for the purpose of exercising its functions, the Board may join in the formation of a corporation to be incorporated and may purchase, hold, dispose of or deal with shares in, or subscribe to the issue of shares by, a corporation provided the Board acts in accordance with such guidelines (if any) as are determined by the Minister and the Victorian Minister.
Proposed subsection (4) provides that an affiliate of the Board must not, except with the approval of the Minister and the Victorian Minister, engage in any activities which the Board may not engage in.
Clause 47 provides that if the Board is a member of, or forms or participates in the formation of, a limited company within the meaning of the Corporations Law and the Board has a controlling interest in the company, the Board must include in its annual report a copy of the accounts of the company in respect of the financial year ended during the period to which the Board's annual report relates and within 14 days after lodging any report, statement or return in respect of the company with the Australian Securities Commission under the Corporations Law, submit a copy of the report, statement or return with the Treasurer.
Proposed subsection (4) provides that if the Board is a member of, or forms or participates in the formation of, a limited company to which proposed subsection (1) applies, the accounts of the limited company must be audited annually by the Auditor-General or, with the agreement of the Auditor-General, by the Victorian Auditor-General.
Part 7 of the Bill (comprising clauses 48 to 52) deals with accounts and reports.
Clause 48 provides that the Board must keep proper accounts and records of all money received and paid by or on account of the Board.
Clause 49 provides that the Board must, in respect of each financial year, prepare an annual report to be laid before each House of the Parliament before the expiration of the seventh sitting day of that House after the report is received by the Minister.
Clause 50 provides that the Board must cause its accounts to be audited at least once each year by a registered company auditor appointed by the Minister and the Victorian Minister on the recommendation of the Board.
Clause 51 provides that, subject to section 38(4), the accounts of the Board relating to different pools of the Board must be kept separately.
Clause 52 provides that the Board must give a copy of each annual report to the South Australian Farmers Federation Incorporated and to the Victorian Farmers Federation when the report is submitted to the Minister and the Victorian Minister.
Part 8 of the Bill (comprising clauses 53 to 59) deals with the dissolution of the Board.
Clause 53 provides that the Board may be dissolved in accordance with this Part on a poll taken under proposed section 54, at the request of the Board under proposed section 55 or on the recommendation of the Minister under proposed section 56(1) and of the Victorian Minister under the corresponding provision of the Victorian Act.
Clause 54 provides that the Minister must direct that a poll be taken of growers on the question that the Board be dissolved if the Minister is satisfied, on representations made during a permitted period by growers by petition to the Minister, that at least half those growers desire that the Board be dissolved or if the Minister has received notice that representations have been made to the Victorian Minister under a provision of the Victorian Act corresponding to this section. If a poll is to be held in both states, then it must be held on the same day.
Clause 55 provides that the Board may, by instrument under its seal, request the Minister to take action to dissolve the Board. The Minister may refuse to consider such a request unless the request is confirmed by the Board, by a similar instrument, within such period as the Minister determines.
Clause 56 provides that if the Minister is satisfied of certain matters and he or she recommends this action to the Governor the Governor may, by notice in the Gazette, direct the Board to wind-up its affairs, after which the Board must proceed to wind-up its affairs and a liquidator may be appointed.
Clause 57 provides that as soon as practicable after a notice under this Act is published in the Gazette directing that a poll be taken, and before the day fixed for the taking of the poll, the Minister must cause a report relating to the proposal to which the poll relates to be published in such manner as the Minister considers appropriate.
Clause 58 provides that the regulations may, subject to this Act, make provision for or with respect to the conduct of polls.
Clause 59 provides that the Board must pay the costs and expenses of a poll under this Act.
Part 9 of the Bill (comprising clauses 60 to 68) provides for the Barley Marketing Consultative Committee.
Clause 60 establishes the Barley Marketing Consultative Committee.
Clause 61 provides that the function of the Committee is to provide advice to the Board about its general policies, particularly with respect to the use of financial reserves and the establishment of joint venture companies.
Clause 62 provides that the Committee consists of a Chairperson (who must not be a grower) appointed by the Minister and the Victorian Minister jointly and four other members so appointed.
Clause 63 provides that the Chairperson of the Committee must preside at a meeting of the Committee.
Clause 64 provides that three members of the Committee one of whom must be the Chairperson constitute a quorum of the Committee and that the Committee must meet at least once every six months. Subject to this Act, the Committee may regulate its own proceedings.
Clause 65 provides that a member of the Committee, unless an officer or employee of the public service, is entitled to be paid from the funds of the Board the remuneration and allowances (if any) fixed by the Minister and the Victorian Minister.
Clause 66 provides that a member's term of office must not exceed three years and a member is eligible for re-appointment.
Clause 67 provides for the circumstances in which the office of a member of the Committee becomes vacant.
Clause 68 provides that if the office of a member becomes vacant otherwise than by reason of the expiry of the term of office of the member, a person nominated for appointment to the office in accordance with proposed section 62 must he appointed to fill the vacancy and to hold office, subject to this Act, for the remainder of the term. However, if the vacancy occurs within six months of the expiry of the term of office of the member, the office may be left vacant for the remainder of the term.
Part 10 of the Bill (comprising clauses 69 to 74) of the Bill deals with general provisions.
Clause 69 provides that the Board may appoint persons as authorised officers for the purposes of this Act.
Clause 70 provides that an authorised officer or any member of the police force may, for the purposes of exercising any power conferred on the officer by this Act or determining whether this Act is being or has been complied with, at any reasonable time and with any necessary assistants—
• enter and search any land, premises, vehicle or place
• where reasonably necessary, break into or open any part of, or anything in or on, the land, premises, vehicle or place or, in the case of a vehicle, give directions with respect to the stopping or moving of the vehicle (on the consent of the occupier or on the authority of a warrant issued by a justice)
• search for, inspect and make copies of any documents
• require the occupier of premises entered and searched to produce any documents and to answer questions.
Clause 71 provides that it is an offence for a person to
• delay or obstruct an authorised officer or member of the police force in the exercise of powers under this Act
• without reasonable excuse, refuse or fail to comply with any requirement made under proposed section 70; or
• give false or misleading information in response to a requirement made under proposed section 70,
the penalty for which is a division 7 fine ($2 000).
Clause 72 contains the evidentiary procedures for proceedings for an offence against this Act.
Clause 73 provides for service of notices or other documents required or authorised by this Act.
Clause 74 provides for the making of regulations under this Act.
Part 11 of the Bill (comprising clauses 75 and 76) contains the transitional and repeal provisions.
Clause 75 repeals the Barley Marketing Act 1947.
Clause 76 contains the transitional provisions.
The Hon. PETER DUNN secured the adjournment of the debate.