Part I—Preliminary
1 Name of Regulations
These Regulations are the Dairy Produce Regulations 1986.
2 Interpretation
(1) In these Regulations:
Act means the Dairy Produce Act 1986.
casein includes all caseinates and co‑precipitates.
month means one of the 12 months of the year.
Secretary means the Secretary of the Department.
(2) In these Regulations:
(a) a reference to a person who purchases relevant dairy produce shall be read as a reference to a person who purchases from the producer relevant dairy produce on which levy is imposed; and
(b) a reference to an authorised agent shall be read as a reference to a person appointed under regulation 8 to be an authorised agent.
2A Gross value of production
(1) For subsection 6 (5) of the Act, the Minister must determine the amount of the gross value of production of milk, for a financial year (the relevant financial year), by using:
where:
A is the estimated value of milk to be produced in the relevant financial year.
B is the value of milk produced in the financial year immediately before the relevant financial year (the previous financial year).
C is the value of milk produced in the financial year immediately before the previous financial year.
(2) In subregulation (1), a reference to the value of milk produced, or to the estimated value of milk to be produced, in a financial year is a reference to the production figure supplied by the Australian Bureau of Agricultural and Resource Economics that shows:
(a) the gross value of milk produced by the dairy industry in that financial year; or
(b) the estimated gross value of milk to be produced by the dairy industry for that financial year.
Part 2—Export control
Division 2.1—General
2.01 Interpretation
(1) In this Part:
annual quota means quota allocated under regulation 2.10, and includes quota that is subsequently transferred to another person under regulation 2.18.
application day means:
(a) 1 November in any year; or
(b) if 1 November in a year is not a working day—the next working day after 1 November.
category of dairy produce means a category of regulated dairy produce listed in regulation 2.05.
consignment means a single shipment of regulated dairy produce that is exported by sea or air to a single consignee.
dairy manufacturer means a person that, for commercial purposes:
(a) collects milk from farms and processes it; or
(b) purchases dairy produce and subjects it to a process that changes it from one kind of produce to another (for example, milk into yoghurt); or
(c) owns dairy produce and sub‑contracts for the produce to be processed or transformed in a plant the person does not own; or
(d) purchases dairy produce and repackages it.
FCFS quota (or first‑come‑first‑served quota) means quota allocated under regulation 2.21.
quota holder means a person that has been allocated annual quota or FCFS quota.
shipped weight, in relation to regulated dairy produce, means the weight, in kilograms, of the produce after it has been loaded for shipment.
total available quota, in relation to a category of dairy produce and a calendar year, means the total amount of produce that can be exported to the regulated dairy market at a reduced or zero tariff rate.
Note: The total available quota is set by international agreement between Australia and the regulated dairy market.
working day means a day that is not a Saturday, Sunday or public holiday in the Australian Capital Territory.
(2) In this Part, a significant change takes place in relation to a quota holder if:
(a) the quota holder changes any of the following:
(i) its name, or the registered business name under which it carries on business;
(ii) its business address or other contact details;
(iii) the kind of business it undertakes; or
(b) for a quota holder that is a corporation—the quota holder becomes an externally administered body corporate (within the meaning of the Corporations Act 2001); or
(c) for a quota holder that is a sole trader—the quota holder becomes bankrupt.
(3) In this Part:
(a) an amount of quota is attached to a consignment when an approval to export the consignment is granted under Division 2.5; and
(b) the quota is used when the consignment is accepted for import by the regulated dairy market as part of the total available quota.
(4) An amount of quota ceases to be attached to a consignment if the approval to export the consignment ceases to have effect.
2.02 Object
The object of this Part is to establish a system of export control that:
(a) facilitates the orderly export of regulated dairy produce to regulated dairy markets in respect of that produce; and
(b) enables the Commonwealth to administer Australia’s entitlements to export dairy produce at reduced, or special, tariff rates to particular dairy markets.
2.03 Regulated dairy produce and markets—European Union
(1) For paragraph 52 (a) of the Act, dairy produce described in Part 2 of Schedule 1A is declared to be regulated dairy produce.
(2) For paragraph 52 (b) of the Act, the European Union is declared to be a regulated dairy market in respect of the regulated dairy produce.
2.04 Regulated dairy produce and markets—United States of America
(1) For paragraph 52 (a) of the Act, dairy produce described in Part 3 or 4 of Schedule 1A is declared to be regulated dairy produce.
(2) For paragraph 52 (b) of the Act, the United States of America is declared to be a regulated dairy market in respect of the regulated dairy produce.
2.05 Categories of regulated dairy produce
(1) In this Part, an EU category means a type of regulated produce for export to the European Union, described in Part 2 of Schedule 1A and listed in Table 1.
Table 1
Item | Category |
1 | EU Cheese for Processing |
2 | EU Whole Cheddar Cheese |
Note: Each item in Table 1 corresponds to an item in Part 2 of Schedule 1A.
(2) In this Part, a US WTO category means a type of regulated produce for export to the United States of America, described in Part 3 of Schedule 1A and listed in Table 2.
Table 2
Item | Category |
1 | US WTO American‑type Cheese |
2 | US WTO Cheddar Cheese |
3 | US WTO Other Unspecified Cheese |
4 | US WTO Swiss and Emmentaler Cheese |
Note: Each item in Table 2 corresponds to an item in Part 3 of Schedule 1A.
(3) In this Part, a US FTA category means a type of regulated produce for export to the United States of America, described in Part 4 of Schedule 1A and listed in Table 3.
Table 3
Item | Category |
1 | US FTA American Cheese |
2 | US FTA Butter |
3 | US FTA Cheddar Cheese |
4 | US FTA Condensed Milk |
5 | US FTA Creams and Ice Cream |
6 | US FTA European‑type Cheese |
7 | US FTA Goya Cheese |
8 | US FTA Non‑fat Dried Milk Powder and Skim Milk Powder |
9 | US FTA Other Cheese |
10 | US FTA Other Dairy Products |
11 | US FTA Other Milk Powder |
12 | US FTA Swiss‑type Cheese |
Note: Each item in Table 3 corresponds to an item in Part 4 of Schedule 1A.
2.06 US FTA Creams and Ice Cream—references to weight
(1) This regulation applies to the category of dairy produce US FTA Creams and Ice Cream.
(2) In this Part:
(a) a reference to the weight of dairy produce is to be read as referring to the volume of dairy produce; and
(b) a reference to kilograms is to be read as referring to litres; and
(c) a reference to an amount per kilogram is to be read as referring to an amount per litre; and
(d) a reference to tonnes is to be read as referring to kilolitres; and
(e) a reference to shipped weight is to be read as referring to the volume, in litres, of the regulated dairy produce after it has been loaded for shipment.
Division 2.2—Allocation of annual quota
2.08 Application for annual quota
(1) A dairy manufacturer may apply to the Secretary for an allocation of annual quota for a calendar year in relation to a category of dairy produce.
(2) An application for an allocation of quota in relation to a US WTO category must be received by the Secretary:
(a) for 2010—no later than 16 October 2009; and
(b) for a later year—no later than 1 October in the previous year.
(3) An application for an allocation of quota in relation to an EU category or US FTA category must be received by the Secretary:
(a) for 2010—no later than 23 October 2009; and
(b) for a later year—no later than 12 October in the previous year.
(4) The application must:
(a) be made in a form approved by the Secretary; and
(b) include the following information:
(i) the name of the dairy manufacturer;
(ii) the dairy manufacturer’s business address;
(iii) the dairy manufacturer’s contact phone number;
(iv) the category of dairy produce;
(v) the amount of quota applied for;
(vi) if the category is a US WTO category—the name of the US importer to which the produce will be shipped.
(5) For subparagraph (4) (b) (v), an application for quota in a US WTO category must be for a minimum of 10 tonnes.
(6) An application that does not meet the requirements in subregulations (4) and (5) is not a valid application.
2.09 Secretary may ask for further information
(1) For the purpose of verifying that an applicant is a dairy manufacturer, or has made a valid application, the Secretary may ask the applicant to provide further information.
(2) The request must:
(a) be made in writing; and
(b) identify the information required; and
(c) state the date by which the applicant must give the information to the Secretary.
(3) The date stated for paragraph (2) (c) must not be earlier than 7 days after the date of the request.
(4) Despite subregulation 2.08 (6), the applicant is taken not to have made a valid application unless:
(a) the applicant gives the Secretary the required information by the date stated in the request; and
(b) the application then meets the requirements in subregulations 2.08 (4) and (5).
2.10 Allocation of annual quota
(1) If the Secretary makes a request for information under regulation 2.09 about 1 or more applications for annual quota in relation to a category of dairy produce, the Secretary may allocate quota for that category after the due dates for all the requests have passed and the closing date for applications under regulation 2.08 has passed.
(2) If the Secretary does not request information about any of the applications in relation to a category of dairy produce, the Secretary may allocate quota for that category after the closing date for applications.
(3) If the total quota applied for in all valid applications for a category is less than or equal to the total available quota, then the Secretary must allocate each applicant the amount of quota applied for.
(4) If the total quota applied for in all valid applications for a category is more than the total available quota, then the Secretary must allocate each applicant the amount of quota worked out according to regulation 2.11.
(5) This regulation does not require the Secretary to allocate quota to a particular applicant, or to any applicant, if the Secretary considers that it would not be in the best interests of the dairy industry to make the allocation.
(6) If the Secretary does not allocate quota to an applicant because of subregulation (5), the Secretary must, within 7 days after making the decision:
(a) give to the dairy manufacturer a written notice that sets out the reasons for the decision; and
(b) include a statement advising that, if the dairy manufacturer is dissatisfied with the Secretary’s decision, the dairy manufacturer may apply to the Administrative Appeals Tribunal for review of the decision.
Note: See regulation 2.41 concerning review of decisions.
2.11 Allocation of annual quota if applications for category exceed total available quota
(1) In this regulation:
requested allocation, in relation to an applicant, means the amount of quota that the applicant applied for under regulation 2.08 in the category being allocated.
set‑aside amount means:
(a) 2% of the total available quota for all categories of dairy produce other than US FTA Non‑fat Dried Milk Powder and Skim Milk Powder; and
(b) zero for the category US FTA Non‑fat Dried Milk Powder and Skim Milk Powder.
Allocation if set‑aside amount is not zero
(2) If the set‑aside amount for a category is not zero, the following steps show how to work out the amount of annual quota allocated to each applicant.
Preliminary allocation |
Step 1 | For each applicant, work out the preliminary allocation of quota using the formula: 
where: generally available quota means the amount of quota remaining when the set‑aside amount is withdrawn from the total available quota. |
| ARME (or applicant’s regulated market exports), in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by the applicant to the regulated market during the 3 financial years immediately preceding the current financial year. Example For the category US WTO Cheddar Cheese, the ARME includes all of the applicant’s exports of cheddar cheese to the United States of America, regardless of the tariff rate that applied to the cheese when it entered that country. |
| TRME (or total regulated market exports), in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by all applicants to the regulated market during the 3 financial years immediately preceding the current financial year. AGE (or applicant’s global exports), in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by the applicant to anywhere in the world (including the regulated market) during the 3 financial years immediately preceding the current financial year. |
| TGE (or total global exports) in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by all applicants to anywhere in the world (including the regulated market) during the 3 financial years immediately preceding the current financial year. Note: For the category US FTA Creams and Ice Cream, the amounts of produce and quota will be measured by volume in litres and kilolitres—see regulation 2.06. |
Step 2 | If the preliminary allocation for any applicant is greater than the applicant’s requested allocation, withdraw from that applicant the quota in excess of the requested allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have less than their requested allocation (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. Repeat this step if any applicant has more than the applicant’s requested allocation as a result of being allocated extra quota. |
Step 3 | If no applicant’s allocation after step 2 was less than 60 tonnes, repeat steps 1 and 2, recalculating the preliminary allocation using the total available quota instead of the generally available quota. When steps 1 and 2 have been repeated, the next step to use is step 8. Each applicant’s maximum allocation is equal to the applicant’s requested allocation. |
Distribution of set‑aside amount |
Step 4 | If any applicant’s allocation after step 2 was less than 60 tonnes, that applicant is a small applicant. For each applicant that is not a small applicant, the maximum allocation is equal to the applicant’s requested allocation. For each small applicant, the maximum allocation is equal to the lesser of: (a) 60 tonnes; and (b) the applicant’s requested allocation. The small applicants that have less than their maximum allocation are the eligible applicants. If there are no eligible applicants, the next step to use is step 6. If there is at least 1 eligible applicant, divide the set‑aside amount by the number of eligible applicants and add the result to each eligible applicant’s allocation. |
Step 5 | If, after step 4, any small applicant’s allocation is more than the applicant’s maximum allocation, withdraw from that applicant the quota in excess of the maximum allocation. The total amount of quota withdrawn from these applicants is the additional amount. The small applicants that have less than their maximum allocation are the eligible applicants. If there are no eligible applicants, go to step 6. |
| If there is at least 1 eligible applicant, divide the additional amount by the number of eligible applicants and add the result to each eligible applicant’s allocation. Repeat this step if any small applicant has more than the applicant’s maximum allocation as a result of being allocated extra quota. |
Step 6 | If any of the total available quota is unallocated after step 5, allocate all of the unallocated quota to the applicants that are not small applicants and that have less than their maximum allocation (the eligible applicants), so that each eligible applicant receives a proportion of the unallocated quota equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. |
Step 7 | If, as a result of being allocated extra quota in step 6, any applicant now has more than the applicant’s maximum allocation, withdraw from that applicant the quota in excess of the maximum allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that are not small applicants and that have less than their maximum allocation (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated extra quota. |
Deduction of penalties |
Step 8 | If a penalty has been imposed on an applicant by regulation 2.19, withdraw the amount of the penalty from the applicant’s allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have less than their maximum allocation and that have not had a penalty withdrawn (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. |
Step 9 | If, as a result of being allocated extra quota in step 8, any applicant now has more than the applicant’s maximum allocation, withdraw from that applicant the quota in excess of the maximum allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have less than their maximum allocation and that have not had a penalty withdrawn (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated extra quota. |
US WTO quota minimums |
Step 10 | If the category is a US WTO category and any applicant has an allocation of less than 10 tonnes, withdraw that applicant’s allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have an allocation of at least 10 tonnes and less than their maximum allocation (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. |
Step 11 | If, as a result of being allocated extra quota in step 10, any applicant now has more than the applicant’s maximum allocation, withdraw from that applicant the quota in excess of the maximum allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have an allocation of at least 10 tonnes and less than their maximum allocation (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated extra quota. |
Rounding |
Step 12 | Round all allocations as they stand after step 11 to the nearest kilogram, with 0.5 of a kilogram to be rounded up. If this rounding makes the sum of all allocations greater than the total available quota, round all allocations as they stand after step 11 down to the nearest kilogram instead. |
Allocation if set‑aside amount is zero
(3) If the set‑aside amount for a category is zero, the following steps show how to work out the amount of annual quota to be allocated to each applicant.
Preliminary allocation |
Step 1 | For each applicant, the preliminary allocation of quota is: 
where: total available quota has the meaning given by regulation 2.01. ARME (or applicant’s regulated market exports), in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by the applicant to the regulated market during the 3 financial years immediately preceding the current financial year. TRME (or total regulated market exports), in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by all applicants to the regulated market during the 3 financial years immediately preceding the current financial year. AGE (or applicant’s global exports), in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by the applicant to anywhere in the world (including the regulated market) during the 3 financial years immediately preceding the current financial year. TGE (or total global exports) in relation to a category of dairy produce, means the weight of produce, matching the physical description of produce in the category, that was exported by all applicants to anywhere in the world (including the regulated market) during the 3 financial years immediately preceding the current financial year. |
Step 2 | If the preliminary allocation for any applicant is greater than the applicant’s requested allocation, withdraw from that applicant the quota in excess of the requested allocation. |
| The total amount of quota withdrawn from these applicants is the additional amount. |
| Allocate all of the additional amount as extra quota to the applicants that have less than their requested allocation (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. |
| Repeat this step if any applicant has more than the applicant’s requested allocation as a result of being allocated extra quota. |
Deduction of penalties |
Step 3 | If a penalty has been imposed on an applicant by regulation 2.19, withdraw the amount of the penalty from the applicant’s allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have less than their requested allocation and that have not had a penalty withdrawn (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. |
Step 4 | If, as a result of being allocated extra quota in step 3, any applicant now has more than the applicant’s requested allocation, withdraw from that applicant the quota in excess of the requested allocation. The total amount of quota withdrawn from these applicants is the additional amount. Allocate all of the additional amount as extra quota to the applicants that have less than their requested allocation and that have not had a penalty withdrawn (the eligible applicants), so that each eligible applicant receives a proportion of the additional amount equal to the applicant’s proportion of the total preliminary allocations to all eligible applicants. Repeat this step if any applicant has more than the applicant’s maximum allocation as a result of being allocated extra quota. |
Rounding |
Step 5 | Round all allocations as they stand after step 4 to the nearest kilogram, with 0.5 of a kilogram to be rounded up. If this rounding makes the sum of all allocations greater than the total available quota, round all allocations as they stand after step 4 down to the nearest kilogram instead. |
2.12 Notification of allocation
(1) If annual quota is allocated to a dairy manufacturer under regulation 2.10, the Secretary must give the dairy manufacturer a written notice of the allocation as soon as practicable.
(2) The notice must include:
(a) the category of dairy produce to which the quota relates; and
(b) the amount of quota allocated; and
(e) the conditions to which the allocation is subject.
2.15 Conditions on allocation
The allocation of annual quota is subject to the following conditions:
(a) the quota holder must, within 14 days after a significant change occurs, tell the Secretary in writing of the change;
(b) any other condition the Secretary considers appropriate.
Division 2.3—Return, loss or transfer of annual quota
2.16 Forfeiture of annual quota
The Secretary must withdraw any unattached amount of annual quota for a calendar year if the quota holder does not tell the Secretary, in writing, on or before 15 June in that year, how the quota holder intends to deal with the unattached quota.
Note: Before 5 June each year, the Secretary will send a notice about the requirement in this regulation to each quota holder.
2.17 Voluntary return of annual quota
(1) At any time on or before the end of a calendar year, a holder of annual quota for the year may notify the Secretary in writing that the holder wishes to return an amount of unattached quota.
(2) The Secretary must withdraw the amount of quota from the holder’s allocation.
Note: If the Secretary is notified of a return of quota after 15 June, the quota will be counted in determining a penalty under regulation 2.19.
2.18 Transfer of annual quota
(1) A holder of unattached annual quota for a calendar year (the transferor) may transfer some or all of the quota to another person (the transferee).
(2) It is not a transfer of quota if a quota holder authorises an agent to export dairy produce on behalf of the holder.
(3) A transfer is not validly made unless the transferor sends the Secretary a notice that includes the following:
(a) the name of the transferor and the transferee;
(b) the category of dairy produce;
(c) the amount of quota being transferred;
(d) whether the transferee is a dairy manufacturer.
Note: If the transferee is not a dairy manufacturer, and the transferred quota is unused at the end of the calendar year, then the transferred quota will still be counted against the transferor in determining a penalty under regulation 2.19.
(4) If the Secretary receives a notice under subregulation (3), the Secretary must:
(a) withdraw the transferred amount from the transferor’s annual quota; and
(b) allocate that amount to the transferee.
(5) Annual quota that is transferred under this regulation is subject to the same conditions that applied to the quota before it was transferred.
2.19 Penalty on future allocation if annual quota remains unused
(1) In this regulation:
surplus quota, in relation to a dairy manufacturer, means the sum of the following amounts:
(a) unused annual quota for a calendar year that the dairy manufacturer holds as at the end of 31 December;
(b) annual quota for a calendar year that the dairy manufacturer returned under regulation 2.17 after 15 June;
(c) an amount of annual quota for a calendar year to which the following apply:
(i) the dairy manufacturer was the transferor of the quota under regulation 2.18;
(ii) the transferee was not a dairy manufacturer;
(iii) as at the end of 31 December, the quota is unused quota that is held by the transferee.
(2) For paragraph (1) (c), if:
(a) annual quota for a calendar year was transferred to a transferee by more than one dairy manufacturer; and
(b) as at the end of 31 December, the transferee holds unused annual quota;
the unused quota is to be distributed between the surplus quotas of the dairy manufacturers in proportion to the amount of quota that each dairy manufacturer transferred to the transferee.
(3) A penalty is imposed on a dairy manufacturer in relation to a category of dairy produce if:
(a) the total available quota for a calendar year in relation to the category is less than 3 000 tonnes; and
(b) the dairy manufacturer’s surplus quota for the year is more than 2% of the dairy manufacturer’s annual quota.
(4) A penalty is imposed on a dairy manufacturer in relation to a category of dairy produce if:
(a) the total available quota for a calendar year in relation to the category is at least 3 000 tonnes; and
(b) the dairy manufacturer’s surplus quota for the year is more than 1% of the dairy manufacturer’s annual quota.
Note: For the category US FTA Creams and Ice Cream, quota will be measured in litres and kilolitres rather than kilograms and tonnes—see regulation 2.06.
(5) The amount of the penalty imposed is equal to the surplus quota.
(6) A penalty imposed on a dairy manufacturer by this regulation applies to the next allocation of annual quota to the dairy manufacturer under regulation 2.10.
Note: Because a penalty is imposed at the end of a calendar year, the next allocation will relate to quota that is for use no earlier than the year after next. For example, surplus quota remaining at the end of 2010 will result in a penalty applying to the allocation of quota for use in 2012 at the earliest. If no quota is allocated to the dairy manufacturer for 2012, the penalty would apply to the allocation for 2013.
(7) The penalty expires:
(a) after the dairy manufacturer has been allocated annual quota under either subregulation 2.10 (3) or subregulation 2.10 (4); or
(b) if the dairy manufacturer has not been allocated annual quota in that way—5 years after the end of the calendar year to which it relates.
Note 1: Subregulation 2.10 (3) provides for allocation of annual quota when the total quota applied for in all valid applications is less than or equal to the total available quota. In those circumstances, the penalty will not reduce the dairy manufacturer’s allocation, but will expire under paragraph (a) of this provision.
Note 2: A penalty imposed because of surplus quota in 2010 will expire at the end of 2015. This will occur if the dairy manufacturer has not received any allocations for the years 2012 to 2016 inclusive.
Division 2.4—Allocation of FCFS quota
2.20 Application for FCFS quota
(1) A person may apply to the Secretary, in writing, for an allocation of FCFS quota in relation to a category of dairy produce for which not all of the total available quota has been allocated.
(2) An application for quota in relation to a particular calendar year may be made on or after the application day in the previous year.
(3) The application must:
(a) be in a form approved by the Secretary; and
(b) include the following information:
(i) the name of the applicant;
(ii) the applicant’s business address;
(iii) the applicant’s contact phone number;
(iv) the category of dairy produce;
(v) the date or dates on which the applicant intends to export produce in that category;
(vi) the amount of quota applied for.
(4) If more than one date is listed under subparagraph (3) (b) (v), the application must indicate how much of the quota applied for the applicant intends to attach to each consignment.
2.21 Allocation of FCFS quota
(1) The Secretary must deal with applications made under regulation 2.20 on a first‑come‑first‑served basis.
(2) If the amount of unallocated quota in relation to a category of dairy produce is greater than or equal to the amount of FCFS quota applied for, the Secretary must allocate to the applicant the amount of quota applied for.
(3) If the amount of unallocated quota in relation to a category of dairy produce is less than the amount of FCFS quota applied for, the Secretary may either:
(a) allocate the unallocated quota to the applicant; or
(b) not allocate the unallocated quota to the applicant.
(5) This regulation does not require the Secretary to allocate quota to an applicant if the Secretary considers that it would not be in the best interests of the dairy industry to make the allocation.
(6) If the Secretary does not allocate quota to an applicant because of subregulation (5), the Secretary must, within 7 days after making the decision:
(a) give to the applicant a written notice that sets out the reasons for the decision; and
(b) include a statement advising that, if the applicant is dissatisfied with the Secretary’s decision, the applicant may apply to the Administrative Appeals Tribunal for review of the decision.
Note: See regulation 2.41 concerning review of decisions.
2.22 Notification of allocation
(1) If FCFS quota is allocated to a person under regulation 2.21, the Secretary must give the person a written notice of the allocation.
(2) The notice must include:
(a) the category of dairy produce to which the allocation relates; and
(b) the amount of quota allocated; and
(d) the conditions to which the allocation is subject.
2.24 Conditions on allocation
The allocation of FCFS quota is subject to the following conditions:
(a) the quota holder must, within 14 days after a significant change occurs, tell the Secretary in writing of the change;
(b) any other condition the Secretary considers appropriate.
2.25 Withdrawal of allocation
The Secretary must withdraw an amount of FCFS quota allocated under regulation 2.21 when either of the following occurs:
(a) 28 days pass after the date listed in the application for the quota as the date on which a consignment was to be exported with the quota attached, and the quota has not been attached;
(b) an approval to export a consignment with the quota attached ceases to have effect.
Division 2.5—Export approvals
Subdivision 2.5.1—Export of regulated dairy produce to European Union
2.26 Definitions for Subdivision 2.5.1
In this Subdivision:
exporter’s available quota, in relation to a category of dairy produce, means the sum of:
(a) the exporter’s unattached annual quota in relation to that category; and
(b) the exporter’s unattached FCFS quota in relation to that category.
IMA 1 certificate means the inward monitoring arrangements certificate required by the European Commission for dairy produce imported into the European Union at a reduced tariff rate.
2.27 Application for approval to export
(1) Before a consignment of produce in an EU category is exported, the exporter of the produce must obtain an approval from the Secretary to export the consignment.
(2) An application for approval to export a consignment must be made in a manner approved by the Secretary.
(3) An application for approval to export a consignment in a particular year may be made on or after the application day in the previous year.
Fees in respect of applications for approval
(4) An applicant for approval to export a consignment must pay the following fees in respect of the application:
(a) if an approval to export the consignment has not previously been granted—$100;
(b) if an approval to export the consignment has previously been granted—$500;
(c) in respect of each IMA 1 certificate required for the consignment—$100.
(5) A fee that is required to be paid under subregulation (4) is due and payable when a demand for payment of the fee is made.
Waiver or remission of fees
(6) The Secretary may, if the Secretary considers it appropriate to do so, waive or remit the whole or a part of a fee that is payable, or that has been paid, under subregulation (4).
(7) The Secretary may waive or remit the whole or a part of a fee under subregulation (6) on his or her own initiative or on written application by a person.
2.28 Grant of approval to export
The Secretary must grant an approval to export a consignment of regulated dairy produce if:
(a) an application is made by the exporter under regulation 2.27; and
(aa) the fees in respect of the application required by regulation 2.27 have been paid; and
(b) either:
(i) the exporter’s available quota for the relevant category of dairy produce is equal to or greater than the shipped weight of the consignment; or
(ii) the unallocated quota available for the relevant category of dairy produce is equal to or greater than the shipped weight of the consignment; and
(c) the Secretary has no reason to believe that the total shipped weight of regulated dairy produce that, under the law of the European Union, may be imported into the European Union from Australia will be exceeded as a result of the export.
2.29 Notice of approval to export
(1) If the Secretary grants an approval to export, the Secretary must give the exporter a written notice of approval that sets out:
(a) the shipped weight of regulated dairy produce that may be exported in the consignment; and
(b) the day the approval takes effect; and
(c) the conditions to which the approval is subject.
(2) An approval to export is not transferable.
Note: Under subsection 53 (1) of the Act, a person is guilty of an offence if the person exports regulated dairy produce to a regulated dairy market and the person does not hold an approval in relation to that export.
2.30 Conditions of approval to export
(1) An approval to export is subject to the following conditions:
(a) the exporter must obtain an IMA 1 certificate for the consignment before the consignment is accepted for entry into the European Union;
(b) the exporter must notify the Secretary in writing if it becomes likely that the consignment will not be accepted for entry into the European Union;
(c) any other condition that the Secretary considers appropriate.
(2) If the shipped weight of produce in the consignment (the actual shipped weight) is less than the shipped weight stated in the notice of approval under regulation 2.29 (the approved shipped weight), the exporter will be taken to have exported the approved shipped weight unless the exporter tells the Secretary in writing, within 28 days after the produce is loaded for shipment, the actual shipped weight.
Note: Under subsection 53 (2) of the Act, a person that holds an approval in relation to an export of regulated dairy produce to a regulated dairy market is guilty of an offence if the export is not in accordance with the conditions of the approval.
2.31 Period of approval to export
(1) An approval to export a consignment takes effect on the date specified for that purpose in the notice of approval given under subregulation 2.29 (1).
(2) An approval to export a consignment ceases to have effect:
(a) if an IMA 1 certificate is not obtained for the consignment within 28 days after the day the approval takes effect—at the end of the 28th day after the day the approval takes effect; or
(b) if paragraph (a) does not apply—on the earlier of:
(i) 3 months after the day the approval takes effect; and
(ii) the end of 31 December in the year for which the approval of export was granted.
2.32 Surrender of approval to export
(1) The holder of an approval to export may surrender the approval at any time by giving notice in writing to the Secretary.
(2) When the approval is surrendered, the approval ceases to have effect.
Subdivision 2.5.2—Export of regulated produce to United States of America
2.33 Definitions for Subdivision 2.5.2
In this Subdivision:
exporter’s available quota has the same meaning as in Subdivision 2.5.1.
2.34 Application for approval to export
(1) Before a consignment of produce in a US WTO category or US FTA category is exported, the exporter of the produce must obtain an approval from the Secretary to export the consignment.
(2) An application for approval to export a consignment must be made in a manner approved by the Secretary.
(3) An application for approval to export a consignment in a particular year may be made on or after the application day in the previous year.
Fees in respect of applications for approval
(4) An applicant for approval to export a consignment must pay the following fee in respect of the application:
(a) if an approval to export the consignment has not previously been granted—$100;
(b) if an approval to export the consignment has previously been granted—$500.
(5) A fee that is required to be paid under subregulation (4) is due and payable when a demand for payment of the fee is made.
Waiver or remission of fees
(6) The Secretary may, if the Secretary considers it appropriate to do so, waive or remit the whole or a part of a fee that is payable, or that has been paid, under subregulation (4).
(7) The Secretary may waive or remit the whole or a part of a fee under subregulation (6) on his or her own initiative or on written application by a person.
2.35 Grant of approval to export
The Secretary must grant an approval to export a consignment of regulated dairy produce if:
(a) an application is made by the exporter under regulation 2.34; and
(aa) the fee in respect of the application required by regulation 2.34 has been paid; and
(b) either:
(i) the exporter’s available quota for the relevant category of dairy produce is equal to or greater than the shipped weight of the consignment; or
(ii) the unallocated quota available for the relevant category of dairy produce is equal to or greater than the shipped weight of the consignment; and
(c) the Secretary has no reason to believe that the total shipped weight of eligible produce that, under the law of the United States of America, may be imported into the United States of America from Australia will be exceeded as a result of the export.
2.36 Notice of approval to export
(1) If the Secretary grants an approval to export, the Secretary must give the exporter a written notice of approval that sets out:
(a) the shipped weight of regulated dairy produce that may be exported in the consignment; and
(b) the day the approval takes effect; and
(c) the conditions to which the approval is subject.
(2) An approval to export is not transferable.
Note: Under subsection 53 (1) of the Act, a person is guilty of an offence if the person exports regulated dairy produce to a regulated dairy market and the person does not hold an approval in relation to that export.
2.37 Conditions of approval to export
(1) An approval to export is subject to the following conditions:
(a) the exporter must notify the Secretary in writing if it becomes likely that the consignment will not be accepted for entry into the United States of America;
(b) any other condition that the Secretary considers appropriate.
(2) If the shipped weight of produce in the consignment (the actual shipped weight) is less than the shipped weight stated in the notice of approval under regulation 2.36 (the approved shipped weight), the exporter will be taken to have exported the approved shipped weight unless the exporter tells the Secretary in writing, within 28 days after the produce is loaded for shipment, the actual shipped weight.
Note: Under subsection 53 (2) of the Act, a person that holds an approval in relation to an export of regulated dairy produce to a regulated dairy market is guilty of an offence if the export is not in accordance with the conditions of the approval.
2.38 Period of approval to export
An approval to export a consignment:
(a) takes effect on the date specified for that purpose in the notice of approval given under subregulation 2.36 (1); and
(b) ceases to have effect on the earlier of:
(i) 3 months after the day the approval takes effect; and
(ii) the end of 31 December in the year for which the approval of export was granted.
2.39 Surrender of approval to export
(1) The holder of an approval to export may surrender the approval at any time by giving notice in writing to the Secretary.
(2) When the approval is surrendered, the approval ceases to have effect.
Division 2.6—Miscellaneous
2.40 Variation and revocation of allocation or approval
(1) The Secretary may, at any time, vary or revoke an allocation of quota made or transferred, or an approval to export granted, under this Part if:
(a) the Secretary is satisfied that the allocation or approval is no longer consistent with the object of this Part; or
(b) the Secretary considers that it is in the best interests of the dairy industry to make the variation or revocation.
(2) The holder of allocated quota or an approval to export may ask the Secretary, in writing, for a variation to be made to the allocation or approval.
(3) The Secretary may vary an allocation of quota or an approval to export:
(a) by adding, varying or revoking a condition of the allocation or approval; or
(b) by varying the period of the allocation or approval.
(4) If the Secretary makes a variation or revocation under this regulation, the Secretary must give the holder of the allocation or approval a written notice of the decision that states:
(a) the reasons for the decision; and
(b) the day on which the variation or revocation takes effect; and
(c) that the person may apply to the Administrative Appeals Tribunal for a review of the decision.
2.41 Review of decisions
An application may be made to the Administrative Appeals Tribunal for review of a decision:
(a) to impose a condition, under paragraph 2.15 (b) or 2.24 (b), on an allocation of quota; or
(b) to impose a condition, under paragraph 2.30 (1) (c) or 2.37 (1) (b), on an approval to export a consignment; or
(c) not to allocate quota because of subregulation 2.10 (5) or 2.21 (5); or
(d) to vary or revoke an allocation or approval under regulation 2.40.
2.42 Delegation by Secretary
(1) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, of the Department all or any of the Secretary’s powers and functions under this Part (except this power of delegation).
(2) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.
Division 2.7—Application and transitional provisions
2.43 Allocations of annual quota
(1) The amendments of regulations 2.07 and 2.08 of these Regulations made by items 9 to 11 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015 apply in relation to an application for an allocation of annual quota that is made on or after 1 December 2015.
(2) The amendments of regulations 2.12 and 2.13 made by items 14 and 15 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015 apply in relation to an allocation of annual quota that occurs on or after 1 December 2015.
(3) Despite the repeal of regulation 2.14 made by item 15 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015, that regulation continues to apply in relation to a dairy manufacturer who paid an application fee under paragraph 2.08(4)(c) of these Regulations before 1 December 2015 for an allocation of annual quota for the calendar year beginning on 1 January 2016, if the dairy manufacturer is not allocated any annual quota under regulation 2.10.
2.44 Allocations of FCFS quota
(1) The amendments of regulation 2.20 of these Regulations made by items 18 and 19 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015 apply in relation to an application for an allocation of FCFS quota that is made on or after 1 December 2015.
(2) Subject to subregulation (3), the amendments of regulations 2.21, 2.22 and 2.23 of these Regulations made by items 20 to 25 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015 apply in relation to an allocation of FCFS quota that occurs on or after 1 December 2015.
(3) Despite the repeal of paragraph 2.21(3)(b), subregulation 2.21(4) and paragraph 2.21(6)(c) made by items 20, 21 and 23 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015, those provisions continue to apply in relation to a person who paid an application fee under paragraph 2.20(3)(c) of these Regulations before 1 December 2015 for an allocation of FCFS quota for the calendar year beginning on 1 January 2016, if the person is not allocated any FCFS quota under regulation 2.21.
2.45 Applications for approval to export regulated dairy produce to the European Union
The amendments of regulations 2.26, 2.27 and 2.28 of these Regulations made by items 26 to 32 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015 apply in relation to an application for approval to export a consignment of regulated dairy produce in an EU category if the quota relating to the consignment was allocated for a calendar year beginning on or after 1 January 2016.
2.46 Applications for approval to export regulated dairy produce to the United States of America
The amendments of regulations 2.33, 2.34 and 2.35 of these Regulations made by items 33 to 39 of Schedule 1 to the Australian Meat and Live‑stock and Dairy Legislation Amendment (Cost Recovery) Regulation 2015 apply in relation to an application for approval to export a consignment of regulated dairy produce in a US WTO category or a US FTA category if the quota relating to the consignment was allocated for a calendar year beginning on or after 1 January 2016.
2.47 Repeal of this Division
This Division is repealed at the start of 1 July 2016.
Part III—Records, returns and payment of levies
5 Records to be kept
(1) A person who has, in any month, purchased relevant dairy produce shall keep proper records showing, in respect of that month:
(a) the quantity of whole milk purchased by the person in the month;
(b) the quantities of each kind of whole milk products purchased by the person in the month;
(c) the quantity of milk fat contained in the whole milk purchased by the person in the month;
(d) the quantity of milk fat contained in each kind of whole milk products purchased by the person during the month;
(e) the total amount payable in levies on the milk fat content of the whole milk purchased by the person during the month; and
(f) the total amount payable in levies on the milk fat content of each kind of whole milk products purchased by the person during the month.
(2) The proprietor of a factory at which dairy products are produced shall keep proper records showing, in respect of each month:
(a) the quantity of each kind of dairy products produced at the factory in that month;
(b) the quantity of each kind of dairy products purchased by the proprietor in that month;
(c) the quantity of each kind of dairy products used by the proprietor in the production of dairy products in that month;
(d) the quantity of each kind of dairy products sold by the proprietor in that month for export;
(e) the quantity of each kind of dairy products sold by the proprietor in that month to the Corporation;
(f) the quantity of each kind of dairy products sold by the proprietor in that month otherwise than for export or to the Corporation;
(g) the quantity of each kind of dairy products, being products that had been exported from Australia, imported by the proprietor into Australia in that month;
(h) the quantity of each kind of dairy products disposed of by the proprietor in that month otherwise than by sale or use in the production of dairy products;
(j) the quantity of each kind of dairy products held in stock by the proprietor on the first day of that month;
(k) the quantity of each kind of dairy products held in stock by the proprietor at the end of that month; and
(l) with respect to each kind of dairy products referred to in paragraph (b), (c), (d), (e), (f), (g), (h), (j) or (k), the production period in which the dairy products of that kind were produced.
6 Returns of purchases of relevant dairy produce
(1) A person who has, in any month, purchased relevant dairy produce shall, on or before the twenty‑eighth day of the next succeeding month, furnish to the Department a return containing such of the following particulars with respect to the relevant dairy produce so purchased as are applicable:
(a) the month in which the person purchased the relevant dairy produce;
(b) the quantity of milk fat contained in the whole milk purchased in that month;
(c) the quantity of milk fat contained in each kind of the whole milk products purchased in that month;
(d) the total amount payable in levies on the milk fat content of the whole milk purchased in that month;
(e) the total amount payable in levies on the milk fat content of each kind of the whole milk products purchased in that month;
(f) the total amount payable in levies in respect of the relevant dairy produce.
(2) A return referred to in subregulation (1) shall:
(a) state the full name and address of the person furnishing the return; and
(b) contain a declaration signed by the person furnishing the return or his or her authorised agent, stating that the information furnished in the return is true and correct in every particular.
(3) A return under subregulation (1) must be furnished to the office of the Department in Canberra.
7 Returns in relation to dairy products
(1) This regulation applies to:
(a) a person who is the proprietor of a factory at which dairy products are produced;
(b) a person who is the importer of dairy products referred to in section 5 or 8 of the second Levy Act; and
(c) the Corporation.
(2) Where, in any month, dairy products on which levy is imposed have been sold by or on behalf of a person to whom this regulation applies, or have been used by the person in the production of other products, whether dairy products or not, the person shall, on or before the fourteenth day after the last day of the month immediately following the month in which the dairy products were sold or so used, furnish to the Department a return containing such of the following particulars in respect of that last‑mentioned month as are applicable:
(a) the quantity of each kind of dairy products sold in that month, other than dairy products that have been exported from Australia or sold to the Corporation;
(b) the quantity of each kind of dairy products used by the person in that month in the production of other products;
(c) in respect of each kind of dairy products referred to in paragraph (a) or (b), the total amount of levy payable in respect of the dairy products so sold or used.
(3) A return referred to in subregulation (2) shall:
(a) state the full name and address of the person furnishing the return; and
(b) contain a declaration, signed by the person furnishing the return or his or her authorised agent, stating that the information furnished in the return is true and correct in every particular.
(4) A return made pursuant to subregulation (1) shall be furnished to the Department by lodging it at the principal office of the Department in Canberra.
8 Authorised agent
(1) A person who is required to furnish a return under regulation 6 or 7 may, by instrument in writing signed by that person, appoint a person to be his or her authorised agent for the purpose of signing on his or her behalf the declaration contained in that return.
(2) An instrument referred to in subregulation (1) shall be in accordance with the form in Schedule 1.
(3) A person who, pursuant to subregulation (1), appoints a person to be his or her authorised agent for the purpose of signing on his or her behalf the declaration contained in a return shall lodge the instrument of appointment at the place at which the return is required by these Regulations to be lodged.
9 Execution of documents by a company
(1) Where these Regulations provide that a declaration or instrument of appointment shall be signed by a person and that person is a company, the declaration or instrument of appointment may be signed on behalf of the company by a director or a secretary of the company.
(2) In subregulation (1), a reference to a company shall be read as including a reference to a co‑operative society incorporated under a law of a State or Territory.
Part V—Miscellaneous
16 Prescribed milk fat content
(1) For the purposes of paragraph 111A (3) (a) of the Act, the milk fat content prescribed in relation to dairy produce of a kind referred to in column 2 of an item in Schedule 2 is the amount, expressed as a percentage of the total content of that kind of dairy produce, specified in column 3 of that item.
(2) For the purposes of paragraph 111A (3) (b) of the Act, the milk fat content prescribed in relation to a class of dairy produce referred to in column 2 of an item in Schedule 3 is the amount, expressed as a percentage of the total content of that class of dairy produce, specified in column 3 of that item.
17 Prescribed protein content
(1) For the purposes of paragraph 111A (4) (a) of the Act, the protein content prescribed in relation to dairy produce of a kind referred to in column 2 of an item in Schedule 2 is the amount, expressed as a percentage of the total content of that kind of dairy produce, specified in column 4 of that item.
(2) For the purposes of paragraph 111A (4) (b) of the Act, the protein content prescribed in relation to a class of dairy produce referred to in column 2 of an item in Schedule 3 is the amount, expressed as a percentage of the total content of that class of dairy produce, specified in column 4 of that item.
