CANNED FRUITS EXPORT MARKETING.

No. 89 of 1963.

An Act relating to the Export of Canned Fruits, and for purposes connected therewith.

[Assented to 31st October, 1963.]

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Part I.—Preliminary.

Short title.

1. This Act may be cited as the Canned Fruits Export Marketing Act 1963.

Commencement.

2. This Act shall come into operation on a date to be fixed by Proclamation.

Parts.

3. This Act is divided into Parts, as follows:—

Part I.—Preliminary (Sections 1–5).

Part II.—Establishment of the Australian Canned Fruits Board (Sections 6–15).

Part III.—Functions and Powers of the Australian Canned Fruits Board (Sections 16–22).

Part IV.—Export Control (Sections 23–24).

Part V.—Finance (Sections 25–34).

Part VI.—Miscellaneous (Sections 35–38).

Repeal.

4. The Acts specified in the Schedule to this Act are repealed.

Definitions

5. In this Act, unless the contrary intention appears—

“approved bank” means the Reserve Bank of Australia or another bank approved by the Treasurer for the purposes of the provision in which the expression occurs;

“canned deciduous fruits” means canned fruits being canned apricots, canned peaches, canned pears or canned mixed fruits having a fruit content not less than fifty-five per centum of which consists of one or more of the fruits specified in this definition;

“canned fruits” means goods specified in section two a of the Canned Fruits Export Charges Act 1926–1963;

“cannery”, in relation to an election under this Act, means a factory in which, during the year that ended on the thirtieth day of June immediately preceding the election, not less than—

(a) one hundred and twenty thousand cans of canned fruits each containing twenty-nine ounces; or

(b) the equivalent of that quantity of canned fruits,

were produced;

“member” means a member of the Board, and includes the additional member;

“the additional member” means the member, if any, appointed under section eight of this Act;

“the Auditor-General” means the Auditor-General for the Commonwealth;

“the Board” means the Australian Canned Fruits Board constituted under this Act;

“the Chairman” means the Chairman of the Board;

“the Committee” means the Executive Committee of the Board;

“the Deputy Chairman” means the Deputy Chairman of the Board.

Part II.—Establishment of the Australian Canned Fruits Board.

Establishment of Board.

6.—(1.) For the purposes of this Act, there is hereby established a board by the name of the Australian Canned Fruits Board.

(2.) The Board—

(a) is a body corporate, with perpetual succession;

(b) shall have a common seal;

(d) may sue and be sued in its corporate name.

(3.) All courts, judges and persons acting judicially shall take judicial notice of the common seal of the Board affixed to a document and shall presume that it was duly affixed.

Constitution of the Board.

7.—(1.) The Board shall consist of—

(a) a member to represent the Commonwealth, who shall be appointed by the Minister;

(b) three members elected in the prescribed manner to represent co-operative canneries engaged in the production of canned fruits other than canned pineapples and canned pineapple juice;

(c) three members elected in the prescribed manner to represent canneries, other than co-operative canneries, engaged in the production of canned fruits other than canned pineapples and canned pineapple juice;

(d) one member elected in the prescribed manner to represent canneries engaged in the production of canned pineapples or canned pineapple juice;

(e) three members appointed by the Minister, on the nomination of the Australian Canning Fruitgrowers Association, to represent the growers of apricots, peaches and pears used in the production of canned fruits, being members not all of whom are residents of the same State; and

(f) the additional member, if any, appointed under section eight of this Act.

(2.) Regulations made for the purposes of elections under the last preceding sub-section—

(a) shall include provision to ensure—

(i) that the three members referred to in paragraph (b) of that sub-section are not all residents of the same State and that no such member is connected with a cannery with which any such other member is connected;

(ii) that the three members referred to in paragraph (c) of that sub-section are not all residents of the same State and that no

such member is connected with a cannery with which any such other member is connected; and

(b) may specify the circumstances under which a person shall, for the purposes of the regulations, be deemed to be connected with a cannery.

(3.) Subject to section twelve of this Act, a member (other than the additional member) holds office for three years, but is eligible for re-appointment or re-election, as the case may be.

(4.) The appointment or election of a member is not invalidated, and shall not be called in question, by reason of a defect or irregularity in connexion with his appointment or election.

(5.) The Minister may, on the death, resignation or removal from office of a member (other than the additional member) appoint a person to hold the vacant office for the remainder of the term of office of the member.

(6.) The exercise of a power or the performance of a function by the Board is not invalidated by reason only of there being a vacancy or vacancies in the membership of the Board.

Chairman of the Board.

8.—(1.) Subject to sub-section (4.) of this section, the Board shall appoint a member to be Chairman of the Board.

(2.) Subject to the next succeeding sub-section, a member appointed as Chairman under the last preceding sub-section holds office as Chairman until the expiration of the period of his appointment or election as a member, until he ceases to be a member or until the Board revokes his appointment as Chairman, whichever first occurs.

(3.) A member appointed as Chairman under sub-section (1.) of this section may resign his office as Chairman by writing under his hand delivered to the Board.

(4.) In lieu of making an appointment under sub-section (1.) of this section, the Board may, with the approval of the Minister, appoint a person who is not a member of the Board to be an additional member of the Board and Chairman of the Board.

(5.) Subject to section twelve of this Act, a person appointed under the last preceding sub-section holds office as a member of the Board and Chairman of the Board for such period as the Board, with the approval of the Minister, determines, being a period that does not exceed three years.

Deputy Chairman of the Board.

9.—(1.) The Board shall appoint a member, other than the Chairman, to be Deputy Chairman of the Board.

(2.) Subject to the next succeeding sub-section, a member appointed as Deputy Chairman under the last preceding sub-section holds office as Deputy Chairman until the expiration of

the period of his appointment or election as a member, until he ceases to be a member or until the appointment of another member as Deputy Chairman, whichever first occurs.

(3.) A Deputy Chairman may resign his office as Deputy Chairman by writing under his hand delivered to the Board.

Meetings of the Board.

10.—(1.) The Board shall hold meetings at such times and places as the Board determines.

(2.) The Chairman or, when the Chairman is outside Australia or the office of Chairman is vacant, the Deputy Chairman, may, at any time, convene a meeting of the Board and shall do so upon the request in writing of not less than seven members.

(3.) The Chairman shall preside at all meetings of the Board at which he is present.

(4.) In the absence of the Chairman from a meeting of the Board, the Deputy Chairman, if he is present, shall preside.

(5.) In the event of the absence of both the Chairman and the Deputy Chairman from a meeting of the Board, the members present shall elect one of their number to preside at that meeting.

(6.) At a meeting of the Board, seven members constitute a quorum.

(7.) A question arising at a meeting of the Board shall be determined by a majority of votes of the members present and voting.

(8.) The member presiding at a meeting of the Board has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(9.) The Board shall keep a record of its proceedings.

(10.) The Board may invite a person to attend a meeting of the Board for the purpose of advising or informing the Board on any matter.

Deputies of members.

11.—(1.) A member, other than the additional member, may appoint a person approved by the Minister to be his deputy.

(2.) A member may revoke the appointment of a person as his deputy, but the revocation is not effective until the member has given notice in writing of the revocation to the Minister.

(3.) The deputy of a member is entitled, in the event of the absence of the member from a meeting of the Board, to attend that meeting and, when so attending, shall be deemed to be a member.

Removal and resignation of members.

12.—(1.) The Minister may, at any time, remove from office the member referred to in paragraph (a) of sub-section (1.) of section seven of this Act.

(2.) The Minister may, at any time, on the recommendation of the Board, remove from office a member other than a member referred to in paragraph (a) or (e) of sub-section (1.) of section seven of this Act.

(3.) The Minister may, at any time, on the recommendation of the Australian Canning Fruitgrowers Association, remove from office a member referred to in paragraph (e) of sub-section (1.) of section seven of this Act.

(4.) A member may resign his office by writing under his hand delivered to the Minister.

Executive Committee.

13.—(1.) There shall be an Executive Committee of the Board consisting of—

(a) the Chairman of the Board;

(b) one of the members referred to in paragraph (b) of sub-section (1.) of section seven of this Act;

(d) one of the members referred to in paragraph (e) of that sub-section.

(2.) Members of the Committee other than the Chairman of the Board shall be appointed by the Board and, subject to sub-sections (7.) and (8.) of this section, hold office for a period of one year, but are eligible for re-appointment.

(3.) The Committee shall hold meetings at such times and places as the Committee determines.

(4.) The Chairman of the Board or, when the Chairman is outside Australia or the office of Chairman is vacant; the Deputy Chairman may, at any time, convene a meeting of the Committee.

(5.) In the event of the absence of the Chairman of the Board from a meeting of the Committee, the Deputy Chairman, if not already a member of the Committee, is entitled to attend the meeting and, when so attending, shall be deemed to be a member of the Committee.

(6.) At a meeting of the Committee—

(a) three members form a quorum;

(b) the Chairman of the Board or, in his absence, the Deputy Chairman or, in the absence of the Chairman and the Deputy Chairman, a member elected by the members present to act as chairman of the Committee, shall preside;

of an equality of votes of such members, the question shall be deemed to have been decided in the negative; and

(d) the member presiding has a deliberative vote only.

(7.) A member of the Committee, other than the Chairman of the Board, may resign his office as a member of the Committee by writing under his hand delivered to the Chairman.

(8.) A member of the Committee ceases to hold office as such a member if he ceases to be a member of the Board.

(9.) If the place of a member of the Committee, other than the Chairman of the Board, becomes vacant before the expiration of his term of office, the members of the Board shall, subject to sub-section (1.) of this section, appoint another member of the Board to hold the vacant place for the remainder of that term.

(10.) The deputy of a member of the Board who is a member of the Committee is entitled, in the event of the absence of the member from a meeting of the Committee, to attend that meeting and, when so attending, shall be deemed to be a member of the Committee.

(11.) The Committee may invite a person to attend a meeting of the Committee for the purpose of advising or informing the Committee on any matter.

(12.) The exercise of a power or the performance of a function by the Committee is not invalidated by reason only of there being a vacancy in the membership of the Committee.

Remuneration and allowances.

14.—(1.) Members and deputies of members shall be paid such remuneration and allowances as the Governor-General determines.

(2.) If a member or the deputy of a member is a member of, or a candidate for election to, the Parliament of the Commonwealth or of a State, he shall not be paid remuneration or allowances under the last preceding sub-section, but shall, subject to the approval of the Minister, be reimbursed such expenses as he reasonably incurs by reason of his attendance at meetings of the Board or the Committee or of his engagement (whether in Australia or overseas), with the approval of the Board, on business of the Board.

(3.) A person invited by the Board or by the Committee to attend a meeting of the Board or of the Committee, as the case may be, may be paid in respect of that attendance such fees and allowances as the Minister determines.

Overseas representative.

15.—(1.) The Board may appoint a person or persons approved by the Minister to represent the Board overseas.

(2.) A person appointed under this section shall be appointed upon such terms and conditions as the Board, with the approval of the Minister, determines.

Part III.—Functions and Powers of the Australian Canned Fruits Board.

Functions.

16. The functions of the Board are—

(a) to make reports to the Minister with respect to the exemption of canned fruits from the charge imposed by the Canned Fruits Export Charges Act 1926–1963 and with respect to the rates of that charge;

(b) to make recommendations to the Minister of State for Customs and Excise with respect to the rates of Excise duty imposed by virtue of item 22 in the Schedule to the Excise Tariff 1921–1963;

(c) to make recommendations to the Minister with respect to the making of regulations under this Act or under any other Act in relation to the export of canned fruits from Australia;

(d) to encourage, assist and promote the exportation of canned fruits from Australia and the consumption and sale outside Australia of Australian canned fruits; and

(e) such other functions as are conferred on the Board by or under this Act.

Powers generally.

17.—(1.) The Board has power to do all things that are necessary or convenient to be done for or in connexion with the performance of its functions.

(2.) The powers of the Board in relation to the function of the Board referred to in paragraph (d) of the last preceding section extend to the doing of such things as the Board thinks fit to improve the quality of Australian canned fruits and the methods of production, storage and transport of Australian canned fruits.

Power of Board to purchase canned fruits for export.

18.—(1.) Subject to any directions of the Minister and to the next succeeding sub-section, the Board may—

(a) purchase, on such terms and conditions as the Minister approves, any canned fruits from the producer of the canned fruits;

(b) sell or otherwise dispose of, on such terms and conditions as it thinks fit, canned fruits so purchased; and

(c) do such things as it considers necessary in connexion with the exercise of its powers under this section, including the exportation from Australia of canned fruits purchased by it.

(2.) The Board shall exercise its powers under the last preceding sub-section with the object of assisting in the exportation of canned fruits from Australia but shall, in the exercise of those powers, ensure that, so far as is practicable, canned fruits purchased by it are not exported to the United Kingdom.

(3.) With the concurrence of the Treasurer, the Minister may arrange with the Reserve Bank of Australia for the making by that Bank of advances to the Board for use by the Board in connexion with the exercise of its powers under this section in relation to any canned deciduous fruits, and may guarantee to the Bank the repayment, out of moneys made available by the Parliament, of any advance made by the Bank in pursuance of the arrangement.

Board may accept control of canned fruits.

19.—(1.) The Board may accept control of any canned fruits placed under its control for export from Australia.

(2.) The Board has, with respect to any canned fruits so placed under its control, full authority to make such arrangements and give such directions as it thinks fit for or in relation to any of the following matters:—

(a) the handling, storage and shipment of the canned fruits;

(b) the insurance against loss of the canned fruits, either in Australia, in transit or overseas; and

(3.) The Board shall, in relation to canned fruits referred to in this section, be deemed to be the agent of the owner of the canned fruits, but without prejudice to the power of the Board to exercise, without the authority of the owner, the powers conferred by the last preceding sub-section.

(4.) For the purpose of securing any advances made to the Board, or, at the request of the Board, to the owners of any canned fruits placed under the control of the Board, the Board has, by virtue of this Act and without further authority, full power, on behalf of the owners of the canned fruits, to give security over the canned fruits, and to execute all mortgages and other instruments of assurance in the same manner in all respects as if the Board were the legal owner of the canned fruits.

Board not to trade in canned fruits.

20. Except as provided by or under this Act, the Board shall not trade in canned fruits.

Staff.

21.—(1.) Subject to this section, the Board may employ such persons as it thinks necessary for the exercise of its powers.

(2.) The terms and conditions of employment of persons employed under this section are such as are, subject to the approval of the Public Service Board, determined by the Board.

(3.) Where a person in the employment of the Board under this section was, immediately before his appointment under this Act or under an Act repealed by this Act, an officer of the Public Service of the Commonwealth—

(a) he retains his existing and accruing rights;

(b) for the purpose of determining those rights, his service as a person employed by the Board shall be taken into account as if it were service in the Public Service of the Commonwealth; and

(c) the Officers’ Rights Declaration Act 1928–1959 applies as if this Act and this section had been specified in the Schedule to that Act.

(4.) The Commonwealth Employees’ Compensation Act 1930–1962 applies to persons employed under this section as if they were employees within the meaning of that Act and as if references in that Act to the Commonwealth were references to the Board.

(5.) A person who, immediately before the date of commencement of this Act, was employed under the Canned Fruits Export Control Act 1926–1959 by the Australian Canned Fruits Board constituted under that Act shall, from and including that date, continue in the employment of the Board constituted under this Act upon the same terms and conditions as were applicable to him under the Canned Fruits Export Control Act 1926–1959 immediately before that date.

Delegation by Board.

22.—(1.) The Board may, by instrument in writing, delegate to the Committee, either generally or to the extent provided in the instrument of delegation, all or any of its powers under this Act (except this power of delegation).

(2.) Powers so delegated may be exercised and performed by the Committee in accordance with the instrument of delegation.

(3.) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Board.

Part IV.—Export Control.

Regulations may prohibit export except on conditions.

23.—(1.) For the purpose of enabling the Board effectively to control the export, and the sale and distribution after export, of canned fruits, the regulations may prohibit the export from Australia of canned fruits by a person other than the Board unless—

(a) the person holds a licence to export canned fruits issued, on the recommendation of the Board, by the Minister or by a person authorized by the Minister;

(b) the Board has issued a permit to the person to export the canned fruits and any conditions contained in the permit are complied with; and

(2.) Regulations prescribing conditions or restrictions for the purposes of paragraph (c) of the last preceding sub-section shall not be made unless the conditions or restrictions, as the case may be, have been recommended to the Minister by the Board.

(3.) A person shall not export canned fruits from Australia in contravention of the regulations.

Penalty: Five hundred pounds.

Contracts for shipment of canned fruits.

24.—(1.) A contract for the carriage of canned fruits by sea to a place beyond Australia shall not be made except—

(a) by the Board or by the Board acting as the agent of the owner of the canned fruits or of another person having authority to export the canned fruits; or

(b) in conformity with conditions approved by the Board.

(2.) A contract for the carriage of canned fruits by sea to a place beyond Australia made otherwise than in accordance with this section is void.

(3.) A Collector of Customs or other officer of Customs may require a person who seeks to export canned fruits from Australia, on making entry of the canned fruits under the Customs Act 1901–1963 and before the entry has been passed, to satisfy him that the contract for the carriage of the canned fruits is in conformity with conditions approved by the Board, and the Collector or other officer may decline to pass the entry until that person has so satisfied him.

Part V.—Finance.

Canned Fruits Export Fund.

25.—(1.) The Fund established by the Canned Fruits Export Control Act 1926 under the name of the Canned Fruits Export Fund is continued in existence under that name.

(2.) The moneys and investments that, immediately before the commencement of this Act, constituted the Canned Fruits Export Fund continue, by force of this sub-section, to form part of the Fund.

(3.) There shall be paid to the Board out of the Consolidated Revenue Fund, which is appropriated accordingly, amounts equal to the amounts of charge received by the Commonwealth under the Canned Fruits Export Charges Act 1926–1963.

(4.) The Board shall credit to the Fund all amounts received by it pursuant to the last preceding sub-section.

(5.) In this section, “the Fund” means the Canned Fruits Export Fund continued in existence by this section.

Application of moneys in Canned Fruits Export Fund.

26. The moneys standing to the credit of the Canned Fruits Export Fund may be applied by the Board—

(a) subject to section thirty-one of this Act, for the purpose of making payments in or in connexion with the performance of its functions or the exercise of its powers under this Act other than its powers under section eighteen; and

(b) in payment of such part of any remuneration, allowances, fees or expenses payable to any person (including a member of the Board) under this Act as the Board determines,

but not otherwise.

Canned Fruits Excise Fund.

27.—(1.) The Board shall establish a Fund under the name of the Canned Fruits Excise Fund.

(2.) There shall be paid to the Board out of the Consolidated Revenue Fund, which is appropriated accordingly, an amount equal to the amount of Excise duty received by the Commonwealth by virtue of item 22 in the Schedule to the Excise Tariff 1921–1963 less amounts paid as drawback of such duty and remissions and refunds of such duty.

(3.) The Board shall credit to the Fund all amounts received by it pursuant to the last preceding sub-section and all moneys received by it in exercise of its powers under section eighteen of this Act.

(4.) In this section, “the Fund” means the Canned Fruits Excise Fund.

Application of moneys in the Canned Fruits Excise Fund.

28.—(1.) The moneys standing to the credit of the Canned Fruits Excise Fund may be applied by the Board—

(a) subject to section thirty-one of this Act, for the purpose of making payments in or in connexion with the performance of its functions or the exercise of its powers under this Act; and

(b) in payment of any part of the remuneration, allowances, fees or expenses payable to any person (including a member of the Board) under this Act that is not paid out of the Canned Fruits Export Fund,

but not otherwise.

(2.) The Board shall from time to time make recommendations to the Minister with respect to the amount that, in the opinion of the Board, should be expended from the Canned Fruits Excise Fund in connexion with the promotion by the Board of the consumption and sale of canned deciduous fruits in places other than the United Kingdom and shall, so far as is practicable, ensure

that there are from time to time sufficient moneys in that Fund to meet such expenditure for that purpose as is agreed upon between the Minister and the Board.

Bank accounts.

29.—(1.) The Board shall open and maintain an account or accounts with an approved bank or approved banks and shall maintain at all times at least one such account.

(2.) The Board shall pay all moneys received by it into an account referred to in this section.

(3.) The regulations may prescribe the manner in which cheques drawn on an account referred to in this section shall be signed.

Investments.

30. Moneys of the Board not immediately required for the purposes of the Board may be invested on fixed deposit with an approved bank or in securities of or guaranteed by the Commonwealth or a State.

Directions by Minister.

31.—(1.) The Minister may, by instrument in writing, direct the Board that moneys standing to the credit of a Fund specified in the instrument shall not be applied for a purpose specified in the instrument.

(2.) In this section, “Fund” means the Canned Fruits Export Fund or the Canned Fruits Excise Fund.

Accounts and records to be kept.

32. The Board shall keep proper accounts and records of the transactions and affairs of the Board and shall do all things necessary to ensure that all payments out of the Canned Fruits Export Fund and the Canned Fruits Excise Fund are properly authorized and correctly made and that adequate control is maintained over the assets of, or in the custody of, the Board and over the incurring of liabilities by the Board.

Audit.

33.—(1.) The Auditor-General shall inspect and audit the accounts and records of financial transactions of the Board and shall forthwith draw the Minister’s attention to any irregularity revealed by the inspection and audit that, in the opinion of the Auditor-General, is of sufficient importance to justify his so doing.

(2.) The Auditor-General or an officer of the Public Service of the Commonwealth authorized by him is entitled at all reasonable times to full and free access to all accounts, records, documents and papers of the Board relating directly or indirectly to the Canned Fruits Export Fund or the Canned Fruits Excise Fund or to the receipt or payment of moneys by the Board or to the acquisition, receipt, custody or disposal of assets of the Board.

(3.) The Auditor-General or an officer of the Public Service of the Commonwealth may make copies of or take extracts from any such accounts, records, documents or papers.

(4.) The Auditor-General or an officer of the Public Service of the Commonwealth authorized by him may require a member of the Board or a member of the staff of the Board to furnish him with such information in the possession of that person or to which that person has access as the Auditor-General or authorized officer considers necessary for the purposes of an inspection or audit under this Act, and that person shall comply with the requirement.

Taxation.

34.—(1.) Subject to this section, the Board is subject to taxation (other than taxes on income) under the laws of the Commonwealth, but is not subject to taxation under a law of a State or Territory of the Commonwealth to which the Commonwealth is not subject.

(2.) Stamp duty under the law of a State or a Territory of the Commonwealth is payable by the Board and in respect of transactions entered into, and instruments and documents executed, by or on behalf of the Board.

Part VI.—Miscellaneous.

Returns to the Board.

35.—(1.) The Board may require a person to furnish, within such time as is specified by the Board, any returns or information in relation to the canned fruits industry that is, in the opinion of the Board, required to enable it to perform its functions or exercise its powers under this Act.

(2.) A person shall not, without reasonable excuse, refuse or fail to comply with a requirement under the last preceding sub-section.

Penalty: One hundred pounds.

Annual report of Board.

36.—(1.) The Board shall, as soon as practicable after each thirty-first day of December, prepare and furnish to the Minister a report on the operation of this Act during the year ended on that date, together with financial statements in respect of that year in such form as the Treasurer approves.

(2.) Before furnishing the financial statements to the Minister, the Board shall submit them to the Auditor-General, who shall report to the Minister—

(a) whether the statements are based on proper accounts and records;

(b) whether the statements are in agreement with the accounts and records and show fairly the financial operations and the state of the affairs of the Board;

(c) whether the receipt, expenditure and investment of moneys, and the acquisition and disposal of assets, by the Board during the year have been in accordance with this Act; and

(d) as to such other matters arising out of the statements as the Auditor-General considers should be reported to the Minister.

(3.) The Minister shall cause the report and financial statements of the Board, together with the report of the Auditor-General, to be laid before each House of the Parliament within fifteen sitting days of that House after their receipt by the Minister.

Operation of certain Acts not restricted.

37. Nothing in this Act or the regulations restricts the operation of the Customs Act 1901–1963 or the Commerce (Trade Descriptions) Act 1905–1950 or the regulations made under either or both of those Acts.

Regulations.

38. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, for prescribing penalties not exceeding One hundred pounds for offences against the regulations.