Wheat Marketing Act 1989

Act No. 58 of 1989 as amended

Consolidated as in force on 7 July 1999

(includes amendments up to Act No. 103 of 1998)

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra

Contents

Part 1—Preliminary

1 Short title [see Note 1] 

3 Definitions 

Part 2—The Wheat Export Authority

Division 1—Establishment and functions

4 The Wheat Export Authority 

5 Functions and powers of the Authority 

Division 2—Membership

6 Membership of the Authority 

7 Resignation 

8 Termination of appointment 

9 Remuneration and allowances 

Division 3—Meetings

10 Meetings of the Authority 

Division 4—Finances

11 Expenditure 

12 Borrowing 

13 Financial year 

Division 5—Miscellaneous

14 Staff of the Authority 

15 Reports to meetings of Grains Council 

16 Operational plan 

Part 4—Control of wheat exports

57 Control of export of wheat 

Part 7—Miscellaneous

84 Nominated company B obliged to purchase wheat 

88 Operation of certain State and Territory laws 

94 Regulations 

Notes  

An Act relating to the export of wheat, and for other purposes

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Part 1—Preliminary

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1  Short title [see Note 1]

  This Act may be cited as the Wheat Marketing Act 1989.

3  Definitions

  In this Act, unless the contrary intention appears:

Authority means the Wheat Export Authority referred to in section 4.

Chairperson means the Chairperson of the Authority.

Grains Council means:

 (a) the Grains Council of Australia; or

 (b) if the Grains Council of Australia no longer exists—a body that represents grain growers and is prescribed by the regulations for the purposes of this definition.

member means a member of the Authority (including the Chairperson).

nominated company B means the company that was nominated company B for the purposes of the repealed Part 3A.

repealed Part 3A means Part 3A of this Act that was repealed by the Wheat Marketing Legislation Amendment Act 1998.

Part 2—The Wheat Export Authority

Division 1—Establishment and functions

4  The Wheat Export Authority

 (1) The Australian Wheat Board that existed under this Act immediately before the commencement of this section continues in existence as the Wheat Export Authority.

Note 1: The Commonwealth Authorities and Companies Act 1997 applies to the Authority.

Note 2: Section 25B of the Acts Interpretation Act 1901 deals with the consequences of the change of name.

 (2) The Authority:

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

 (b) is to have a common seal; and

 (c) may acquire, hold and dispose of real and personal property; and

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

 (3) All courts, judges and persons acting judicially must take judicial notice of the imprint of the seal of the Authority on a document, and must presume that the document was duly sealed.

 (4) A document signed by the Chairperson on behalf of the Authority is taken to have been signed with the authority of the Authority, unless the contrary is proved.

5  Functions and powers of the Authority

 (1) The Authority has the following functions:

 (a) to control the export of wheat from Australia;

 (b) to monitor nominated company B’s performance in relation to the export of wheat and examine and report on the benefits to growers that result from that performance.

 (2) The Authority has power to do all things that are necessary or convenient to be done in connection with the performance of its functions.

Division 2—Membership

6  Membership of the Authority

 (1) The Authority consists of the following members:

 (a) a Chairperson;

 (b) 2 members who have been nominated by the Grains Council;

 (c) a government member;

 (d) one other member.

 (2) One of the members referred to in paragraph (1)(b) must be a person who is ordinarily resident, at the time of appointment, in New South Wales, Victoria, Queensland or Tasmania. The other must be a person who is ordinarily resident, at the time of appointment, in Western Australia or South Australia.

 (3) The appointment of a member referred to in paragraph (1)(b) is not ineffective, and is not to be questioned, on the ground of a defect or irregularity in connection with the member’s nomination or appointment.

 (4) Each member is to be appointed by the Minister, in writing, for a specified term of up to 3 years.

 (5) The members hold office on a part-time basis.

 (6) The performance of functions, or the exercise of powers, by the Authority is not affected by a vacancy or vacancies in its membership.

7  Resignation

  A member may resign by giving the Minister a signed notice of resignation.

8  Termination of appointment

 (1) The Minister may terminate the appointment of a member for misbehaviour or physical or mental incapacity.

 (2) The Minister must terminate the appointment of a member if the member:

 (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

 (b) fails, without reasonable excuse, to comply with his or her obligations under section 21 of the Commonwealth Authorities and Companies Act 1997; or

 (c) is absent, without the prior consent of the Authority, from 3 consecutive meetings of the Authority otherwise than on business of the Authority undertaken with the approval of the Authority.

9  Remuneration and allowances

 (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. However, if no determination of that remuneration by the Tribunal is in operation, a member is to be paid the remuneration that is prescribed by the regulations.

 (2) A member is to be paid such allowances as are prescribed by the regulations.

 (3) This section has effect subject to the Remuneration Tribunal Act 1973.

Division 3—Meetings

10  Meetings of the Authority

 (1) Meetings of the Authority are to be held at such times and places as the Authority determines.

 (2) The Chairperson may convene a meeting of the Authority.

 (3) At a meeting, 3 members, one of whom is a member nominated by the Grains Council, is a quorum.

 (4) The Chairperson is to preside at all meetings at which he or she is present.

 (5) If the Chairperson is not present at a meeting, the members present must elect a member to preside.

 (6) A question arising at a meeting is to be decided by a majority of the votes of the members present and voting.

 (7) The member presiding at a meeting has a deliberative vote and, if there is an equality of votes, also has a casting vote.

 (8) The Authority must keep a record of its proceedings.

 (9) The procedure of the Authority is to be determined by the Authority.

Note: Section 33B of the Acts Interpretation Act 1901 allows for meetings to be held by telephone or by other means.

Division 4—Finances

11  Expenditure

 (1) Money of the Authority may only be spent:

 (a) in payment or discharge of expenses and liabilities incurred by the Authority in the performance of its functions under this Act; or

 (b) in payment of remuneration and allowances payable under this Act; or

 (c) in reimbursing the Grains Council, in accordance with any guidelines issued by the Minister, for expenditure reasonably incurred by the Grains Council in connection with meetings of the Grains Council referred to in section 15.

 (2) Subsection (1) does not prevent investment of surplus money of the Authority under subsection 19(3) of the Commonwealth Authorities and Companies Act 1997.

12  Borrowing

 (1) The Authority must not borrow money except in accordance with a written approval of the Minister.

 (2) An approval by the Minister may be given in relation to a particular transaction, or in relation to a class of transactions.

13  Financial year

  For the purposes of the Commonwealth Authorities and Companies Act 1997, the Authority’s financial year is a period of 12 months starting on 1 October.

Division 5—Miscellaneous

14  Staff of the Authority

  The Authority may employ such persons as it thinks necessary for the purposes of this Act, on such terms and conditions as the Authority determines.

15  Reports to meetings of Grains Council

 (1) When an annual report of the Authority has been laid before the Houses of Parliament under subsection 9(3) of the Commonwealth Authorities and Companies Act 1997, the Chairperson must:

 (a) present the annual report to a meeting of the Grains Council within 6 months after the year to which the report relates; and

 (b) report to the meeting on the operations of the Authority during the year to which the report relates; and

 (c) make himself or herself available to answer questions arising out of the annual report or the report mentioned in paragraph (b).

 (2) When an interim report of the Authority has been laid before the Houses of Parliament under subsection 13(5) of the Commonwealth Authorities and Companies Act 1997, the Chairperson must:

 (a) present the interim report to a meeting of the Grains Council within 3 months after the period to which the report relates; and

 (b) report to the meeting on the operations of the Authority during the period to which the report relates; and

 (c) make himself or herself available to answer questions arising out of the interim report or the report mentioned in paragraph (b).

 (3) In addition to reporting to meetings of the Grains Council under subsections (1) and (2), the Authority:

 (a) must report to other meetings of the Grains Council, at least once every 6 months, on the operations of the Authority; and

 (b) may arrange with the Grains Council for the Authority to report to other meetings of the Grains Council on the operations of the Authority.

16  Operational plan

 (1) Before the start of each financial year, the Authority must prepare an operational plan for the financial year and give it to the Minister.

 (2) The plan must include details of the strategies and policies that are to be followed by the Authority in performing its functions during the financial year.

 (3) The Chairperson must keep the Minister informed about:

 (a) changes to the plan; and

 (b) matters that might affect significantly the Authority’s ability to perform its functions in accordance with the plan.

 (4) The Minister may give the Chairperson written guidelines that are to be used by the Chairperson in deciding whether a matter is covered by paragraph (3)(b).

Part 4—Control of wheat exports

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57  Control of export of wheat

 (1) A person shall not export wheat unless:

 (a) the Authority has given its written consent to the export of the wheat; and

 (b) the export of the wheat is in accordance with the terms of that consent.

Penalty:

 (a) in the case of a natural person—$60,000; or

 (b) in the case of a body corporate—$300,000.

 (1A) The prohibition in subsection (1) does not apply to nominated company B.

 (2) An offence against subsection (1) is an indictable offence.

 (3) The Authority’s consent to the export of wheat may be limited to the export of the wheat in specified circumstances, in accordance with specified requirements or by a specified person.

 (3A) Before giving a consent, the Authority must consult nominated company B.

 (3B) The Authority must not give a bulk-export consent without the prior approval in writing of nominated company B. For this purpose a consent is a bulk-export consent unless it is limited to export in bags or containers.

 (3D) An application for a consent under this section must be accompanied by such fee (if any) as is prescribed by the regulations. The fee is payable to the Authority.

 (3E) The Authority must issue guidelines about the matters it will take into account in exercising its powers under this section.

 (4) In proceedings for an offence against subsection (1), a certificate signed by the Chairperson and:

 (a) stating that the Authority did not consent to the export of particular wheat; or

 (b) setting out the terms of a consent given by the Authority;

is prima facie evidence of the matters set out in the certificate.

 (5) The prohibition in subsection (1) is in addition to, and not in substitution for, any prohibition by or under the Customs Act 1901 or the Export Control Act 1982.

 (6) For the purposes of subsection 51(1) of the Trade Practices Act 1974, the following things are to be regarded as specified in this section and specifically authorised by this section:

 (a) the export of wheat by nominated company B;

 (b) anything that is done by nominated company B under this section or for the purposes of this section.

 (7) Before the end of 2004, the Authority must conduct a review of the following matters, and give the Minister a report on the review:

 (a) the operation of subsection (1A) in relation to nominated company B;

 (b) the conduct of nominated company B in relation to:

 (i) consultations for the purposes of subsection (3A); and

 (ii) the granting or withholding of approvals for the purposes of subsection (3B).

Part 7—Miscellaneous

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84  Nominated company B obliged to purchase wheat

 (1) Nominated company B must purchase all wheat that:

 (a) is offered to the company for inclusion in a pool operated by the company; and

 (b) meets the standards required by the company.

 (2) The purchase price must be calculated by reference to the net return for the pool in which the wheat is included.

 (3) Subsection (1) does not apply to any offer made after subsection 57(1) commences to apply to nominated company B.

88  Operation of certain State and Territory laws

 (1) In this section:

corporation means a trading corporation formed within the limits of the Commonwealth.

sale contract means a contract for the sale of grain or for the growing of grain and the sale of the grain, being a contract to which a corporation is a party and which is entered into by a corporation in the course of, or for the purposes of:

 (a) the export of the grain; or

 (b) trade and commerce:

 (i) among the States;

 (ii) between a State and a Territory or between Territories; or

 (iii) within a Territory.

service contract means a contract, agreement or arrangement for the storage, handling or transport of grain for a corporation, being a contract to which a corporation is a party and which is entered into by the corporation in the course of, or for the purposes of:

 (a) the export of the grain; or

 (b) trade and commerce:

 (i) among the States;

 (ii) between a State and a Territory or between Territories; or

 (iii) within a Territory.

 (2) A sale contract or a service contract is not rendered unlawful or unenforceable by any prescribed State or Territory enactment.

 (3) A party to a sale contract or a service contract does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of having entered into the contract.

 (4) Nothing in any prescribed State or Territory enactment operates to prevent a party to a sale contract or a service contract discharging obligations under the contract according to the terms of the contract.

 (5) In the case of a sale contract, nothing in any prescribed State or Territory enactment operates to prevent the property in the grain passing to the purchaser according to the terms of the contract.

 (6) A person who, under a contract (including a contract of service), agreement or arrangement with a party to a sale contract or a service contract, does anything on behalf of that party in the discharge of an obligation under the sale contract or the service contract does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the party is not rendered unlawful or unenforceable by any prescribed State or Territory enactment.

 (7) A corporation does not incur any liability, penalty or forfeiture under a prescribed State or Territory enactment by virtue only of storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1).

 (8) Nothing in any prescribed State or Territory enactment prevents a corporation storing, handling or transporting grain for a purpose referred to in the definition of service contract in subsection (1).

 (9) A person who, under a contract (including a contract of service), agreement or arrangement with a corporation does anything for the corporation in, or in connection with, the storage, handling or transport of grain by the corporation does not incur any liability, penalty or forfeiture under any prescribed State or Territory enactment by virtue only of having done that thing, and the contract, agreement or arrangement between that person and the corporation is not rendered unlawful or unenforceable by any prescribed State or Territory enactment.

 (10) Nothing in any prescribed State or Territory enactment operates to prevent a party to a contract, agreement or arrangement referred to in subsection (6) or (9) discharging obligations under the contract, agreement or arrangement according to its terms.

 (11) Subsection (5) does not affect the rights of the holder of a security over grain for moneys owing.

 (12) Subject to subsection (13), a reference in this section to a prescribed State or Territory enactment is a reference to:

 (a) a State or Territory enactment declared by the regulations to be a prescribed State or Territory enactment for the purposes of this section; or

 (b) a State or Territory enactment included in a class of State or Territory enactments declared by the regulations to be prescribed State or Territory enactments for the purposes of this section.

 (13) The regulations shall not prescribe a State or Territory enactment except in relation to the storage, handling and transport of grain or the marketing of wheat.

 (14) The regulations may provide that a State or Territory enactment, or a State or Territory enactment included in a class of State or Territory enactments, is a prescribed State or Territory enactment only to the extent, or only in the circumstances, specified in the regulations.

 (15) In this section:

State or Territory enactment means:

 (a) a State Act;

 (b) an enactment of a Territory; or

 (c) an instrument made or issued under such an Act or enactment.

94  Regulations

 (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters:

 (a) required or permitted by this Act to be prescribed; or

 (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 (2) Regulations prescribing a State or Territory enactment for the purposes of section 88 shall not be made unless the Minister has notified the Minister of the State or Territory responsible for the administration of the enactment of the subject‑matter of the regulations.

Notes to the Wheat Marketing Act 1989

Note 1

The Wheat Marketing Act 1989 as shown in this consolidation comprises Act No. 58, 1989 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 8 December 1997 is not included in this consolidation. For subsequent information see Table A.

Table of Acts

(a) The Wheat Marketing Act 1989  was amended by section 29(3) only of the Primary Industries and Energy Legislation Amendment Act (No. 3) 1989, subsection 2(7) of which provides as follows:

 (7) Subsection 29(3) and Part 3 of the Schedule are to be taken to have commenced on 1 July 1989.

(b) The Wheat Marketing Act 1989 was amended by section 24 of the Territories Law Reform Act 1992, subsection 2(3) of which provides as follows:

 (3) The remaining provisions of this Act commence on 1 July 1992.

(c) The Wheat Marketing Act 1989  was amended by section 3 only of the Primary Industries and Energy Legislation Amendment Act (No. 2) 1994, subsection 2(1) of which provides as follows:

 (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(d) The Wheat Marketing Act 1989 was amended by Schedule 4 (items 152-154) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows:

 (1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

(e) The Wheat Marketing Act 1989 was amended by Schedule 2 (items 1272-1294) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:

 (2) Schedules 1, 2 and 4 commence on the same day as the Financial Management and Accountability Act 1997.

(f) The Wheat Marketing Act 1989 was amended by Schedule 1 (Part 1 [items 5-25], Part 2 [items 26-137] and Part 3 [items 142-144]) only of the Wheat Marketing Amendment Act 1997, subsections 2(1), (2)(b) and (5) of which provide as follows:

 (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

 (2) Subject to subsection (4), the following provisions commence on a day to be fixed by Proclamation:

 (b) Part 2 of Schedule 1.

 (5) Part 3 of Schedule 1 commences on 1 July 1999.

(g) The Wheat Marketing Act 1989 was amended by Schedule 1 (items 1-21) only of the Wheat Marketing Legislation Amendment Act 1998, subsection 2(2) of which provides as follows:

 (2) The amendments of the Wheat Marketing Act 1989 commence on 1 July 1999.

Table of Amendments

Table A

Application, saving or transitional provisions

Wheat Marketing Amendment Act 1997 (No. 194, 1997)

Schedule 1

Part 1

25  Transitional—paragraphs 94(3)(f) and (g) of the Wheat Marketing Act 1989

(1) Regulations made before the commencement of this item for the purposes of paragraph 94(3)(f) or (g) of the Wheat Marketing Act 1989 are not invalid, and are taken never to have been invalid, on either of the following grounds:

 (a) the ground that those regulations refer or referred to statements of equity instead of certificates of equity;

 (b) the ground that those regulations refer or referred to transfers of equity in the Fund instead of transfers of certificates of equity in the Fund.

(2) Regulations that were in force immediately before the commencement of this item for the purposes of paragraph 94(3)(f) or (g) of the Wheat Marketing Act 1989 have effect after the commencement of this item as if they had been made for the purposes of the corresponding provision of that Act as amended by this Schedule.

Part 2

130  Transitional—pre-commencement agreements and arrangements etc.

In determining, after the commencement of this item, the validity of an agreement, arrangement or transaction entered into by the Board before the commencement of this item, it is to be assumed that the Board had retained the objects and functions that the Board had immediately before the agreement, arrangement or transaction was entered into.

131  Transitional—sections 6 and 7 of the Wheat Marketing Act 1989

Despite the amendments of sections 6 and 7 of the Wheat Marketing Act 1989 made by this Schedule, those sections continue to apply, after the commencement of this item, in relation to the Board’s functions in connection with old season wheat, as if those amendments had not been made.

132  Transitional—section 13 of the Wheat Marketing Act 1989

Neither section 29 of the Commonwealth Authorities and Companies Act 1997 nor the amendments of sections 5 and 6 of the Wheat Marketing Act 1989 made by this Schedule have the effect of requiring the Board:

 (a) to dispose of any shares, debentures, securities, interests or other assets that were acquired under section 13 of the Wheat Marketing Act 1989 before the commencement of this item; or

 (b) to terminate an agreement or arrangement that was entered into under that section before the commencement of this item.

133  Transitional—nominated members holding office under the Wheat Marketing Act 1989

(1) This item applies to a person who held office as a nominated member under the Wheat Marketing Act 1989 immediately before the commencement of this item because of a particular instrument of appointment (the original instrument of appointment).

(2) The Wheat Marketing Act 1989 has effect as if:

 (a) the Minister had, by instrument (the notional instrument of appointment), appointed the person to an office of ordinary member under paragraph 15(1)(d) of that Act immediately after the commencement of this item; and

 (b) the period of appointment specified in the notional instrument of appointment were the period:

 (i) beginning immediately after the commencement of this item; and

 (ii) ending at the end of the period specified in the person’s original instrument of appointment.

(3) Section 15A of the Wheat Marketing Act 1989 does not apply to an appointment that is taken to have been made under subitem (2).

134  Transitional—subsections 67(1), (2), (6) and (7) of the Wheat Marketing Act 1989

If this item commences before the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997, then, despite the repeal of subsections 67(1), (2), (6) and (7) of the Wheat Marketing Act 1989 by this Schedule, those subsections continue to apply during the period:

 (a) beginning at the commencement of this item; and

 (b) ending immediately before the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997;

as if those repeals had not been made.

135  Transitional—sections 67, 69 and 70 of the Wheat Marketing Act 1989

 The amendments of sections 67, 69 and 70 of the Wheat Marketing Act 1989 made by Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 have no effect if this item commences before the commencement of Schedule 2 to that Act.

136  Transitional—paragraphs 69(a), (b) and (c) of the Wheat Marketing Act 1989

If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 commences before the commencement of this item, this Schedule has effect as if a reference in this Schedule to paragraph 69(a), (b) or (c) of the Wheat Marketing Act 1989 were a reference to paragraph 69(1)(a), (b) or (c), respectively, of that Act.

137  Transitional—sections 71A and 71C of the Wheat Marketing Act 1989

(1) This item applies to a guarantee in force under section 71A of the Wheat Marketing Act 1989 immediately before the commencement of this item.

(2) Despite the repeals of sections 71A and 71C of the Wheat Marketing Act 1989 made by this Schedule, those sections continue to apply, after the commencement of this item, in relation to the guarantee, as if those repeals had not been made.