Barley Marketing (Miscellaneous No. 2) Amendment Act, 1999

562 LEGISLATIVE COUNCIL Thursday 18 November 1999

Second Reading

Received from the House of Assembly and read a first time.

The Hon. K.T. GRIFFIN (Attorney-General): 1 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.

Leave granted.

This Amendment Bill has two purposes:
  1. To permit authorised receivers to be able to buy or sell barley, effective in the 1999 harvest; and
  2. To explicitly exclude seed from the marketing authority provided by the Barley Marketing Act.
The Barley Marketing Act 1993 was substantially amended, in early 1999, to finalise deregulation of domestic barley markets and to restructure the Australian Barley Board into grower owned companies ABB Grain Limited and ABB Grain Export Limited.

The amended Act provides that ABB Grain Export Limited may appoint authorised receivers that may receive and hold barley, and that delivery of barley to an authorised receiver is, for the purposes of the Act, delivery to the ABB.

Since the Act achieves a single desk export mechanism by restricting delivery of barley to the ABB, the appointment of authorised receivers is necessary.

However, the Act also prohibits an authorised receiver without, the written approval of ABB Grain Export Ltd, from having a direct or indirect interest in a business involving the buying or selling of barley or in a body corporate carrying on such a business.

This provision that prohibits authorised receivers from engaging in buying or selling barley has been in the Act for several years and originated in relation to separate legislation (the Bulk Handling of Grain Act) that provided for the South Australian Cooperative Bulk Handling (SACBH) to be the only entity that could receive and store grain.

The Bulk Handling of Grain Act was repealed in 1998.

During the review of the Barley Marketing Act in 1997 and 1998 there was an extended period for public comment, during which there were no concerns raised over the issue of this prohibition of authorised receivers buying or selling barley.

After the amended legislation had passed the House of Assembly in March 1999 and just before it was introduced into the Legislative Council in May 1999, SACBH requested removal of the provision of the Act that prohibited authorised receivers from trading in barley.

The Government consulted with SACBH, the South Australian Farmers Federation Grains Council and the then Australian Barley Board in May 1999, and proposed to amend the Barley Marketing Act after the Board had been restructured into grower-owned companies on 1 July 1999 and the resulting equity had been distributed to growers, and before the beginning harvest of the 1999/2000 crop in October 1999.

The changes proposed in this Amendment Bill will permit SACBH, or any other authorised handler, to be able to trade barley on the domestic market and for certain niche export markets beginning in the 1999-2000 crop season.

Due to potential conflicts between the Act and the Common-wealth Plant Breeders Rights Act 1994, as raised in court cases originating in Western Australia, the Crown Solicitor has advised that, at the first convenient opportunity, seed should be explicitly excluded from marketing authority provided by the Act.

Excluding seed from the marketing authority provided by the Act is intended to ensure that ABB Grain Export Ltd (successor to the Australian Barley Board and sole export authority under the Act) can export barley without violating the rights of owners of owners of barley varieties under the Commonwealth PBR Act.

Explanation of Clauses

Clause 1: Short title This clause is formal.

Clause 2: Amendment of s. 33—Delivery of barley

This clause amends section 33 of the principal Act which prohibit the sale or delivery of barley for export to a person other than ABB Grain Export Ltd. The clause adds an exception to the section excluding from the application of the section propagating material of a plant variety covered by a plant breeder's right under the Commonwealth Plant Breeder's Rights Act 1994 if it is sold, delivered or purchased for a purpose involving the production or reproduction of the propagating material.

Clause 3: Amendment of s. 35—Authorised receivers

This clause amends section 35 of the principal Act which provides for the appointment by ABB Grain Export Ltd of authorised receivers to receive barley for the company. The clause removes from the section a restriction contained in subsection (5) under which an authorised receiver must not have a direct or indirect interest in a business involving the buying or selling of barley.

The Hon. CAROLYN PICKLES secured the adjournment of the debate.