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1
Horticulture Legislation Amendment
HORTICULTURE LEGISLATION
AMENDMENT BILL 1995
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The Bill will amend the City of Brisbane Market Act 1960 to establish an
expertise-based Brisbane Market Authority to replace the Brisbane Market
Trust (and to provide the Authority with the powers necessary to operate
and manage the City of Brisbane Market).
The Bill will also amend the Farm Produce Marketing Act 1964 to
establish an Horticulture Industry Policy Council (which is representative of
the relevant industry stake-holders) to, amongst other things, provide advice
to the Minister on policy issues relating to the Queensland horticulture
industry.
Reasons for the Bill
The Bill is part of the Government's program of legislative reform and
review and results from a detailed review of the State's horticulture
legislation (comprising the City of Brisbane Market Act 1960, the Fruit and
Vegetable Act 1947 and the Farm Produce Marketing Act 1964). This Bill
addresses the more urgent matters recommendations from the review.
Estimated Cost for Government Implementation
There will be no cost to Government.
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Horticulture Legislation Amendment
Consultation
Three public discussion papers were issued during 1993 and 1994
seeking submissions regarding the review of the State's horticulture
industry legislation. Submissions were received from the relevant peak
industry bodies--principally, growers (the Committee of Direction of Fruit
Marketing) and wholesalers (Brismark). An interim Queensland
Horticulture Industry Policy Council, comprising representatives of a wide
cross-section of relevant industry sectors, was formed in July 1994 to
consider the submissions and develop recommendations for Government.
The Queensland Treasury, the Office of the Cabinet, the Department of
Business, Industry and Regional Development, the Department of Justice
and Attorney-General and the Parliamentary Commissioner were also
consulted during the drafting of the Bill.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act. The short title is the
Horticulture Legislation Amendment Act 1995.
Clause 2 provides that, when enacted, Part 2 of the Horticulture
Legislation Amendment Act 1995 will amend the City of Brisbane Market
Act 1960 ("the Act").
PART 2--AMENDMENT OF CITY OF BRISBANE
MARKET ACT 1960
Clause 3 inserts a new heading into the Act.
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Horticulture Legislation Amendment
PART 1--PRELIMINARY
Clause 4 deletes an obsolete provision (which abrogated certain powers
which the Brisbane City Council had in relation to markets) from the Act.
Clause 5 renumbers section 3 of the Act as section 2; and also makes a
technical drafting change to the same provision.
Clause 6 amends the definitions' section of the Act by removing
definitions which will no longer be needed after the Act is amended and by
including new definitions as required as part of these amendments.
Clause 7 replaces existing sections 5 to 12 of the Act (which set up the
Brisbane Market Trust, provide for the appointment of, and remuneration
of, members to the Trust, etc) with a new Part 2.
PART 2--THE BRISBANE MARKET AUTHORITY
New section 4 establishes the Brisbane Market Authority ("the
authority").
New section 5 provides that the authority is a body corporate which does
not represent the Crown in right of the State, and may sue and be sued in its
corporate name. It also provides that the authority is an exempt public
authority under the Corporations Law.
New section 6 sets out the functions of the authority which are to
establish, maintain and operate a market in the area of the City of Brisbane
for:
· the sale and storage of fruit and vegetables; and
· the accommodation and facilities for the conduct of other trade
and commerce (meaning non-fruit and vegetable businesses) at
the market.
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Horticulture Legislation Amendment
The authority may also be required to perform other functions as
required by the Act or another Act.
New section 7 essentially provides the authority with the powers of a
natural person (which can be exercised inside and outside the State, and
inside and outside Australia). Amongst other things, the authority will be
able to set market access times in relation to wholesalers and market lessees
under this provision.
New section 8 provides that the authority may delegate its powers.
New section 9 provides that the Minister may give the authority written
notice of a public sector policy that is to apply to it if he or she considers it
to be in the public interest. Prior consultation must occur and the authority
must be asked to advise the Minister if complying with the policy would
harm its financial or other interests. The notice must be gazetted within 21
days of issue.
Under new section 10, the Minister can give the authority a written
direction if he or she considers it necessary to do so in the public interest
because of exceptional circumstances. Prior consultation must occur and the
authority must be asked to advise if complying with the direction would
harm its financial or other interests. The direction must be gazetted within
21 days of issue.
New section 11 requires that each annual report of the authority must
include a copy of each notice or direction issued (under section 9 or 10)
during the financial year, the action taken by the authority and the details of
what impact the notice or direction had on the financial or other interests of
the authority.
New section 12 provides for the composition of an expertise-based
Brisbane Market Authority, the members of which are to be appointed by
the Governor in Council. While the chairperson of the authority will be
nominated by the Minister, the other members will be nominated by a
selection committee (as constituted under new section 13). The same
nomination procedure will be followed when casual vacancies on the
authority are filled.
New section 13 requires the Minister to set up a selection committee to
nominate the members (excluding the chairperson) for the authority. The
selection committee is to have 7 persons:
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Horticulture Legislation Amendment
· a chairperson nominated by the Minister; and
· 6 other members to be chosen by the Minister, after consultation
with the Policy Council, from nominations submitted on
invitation by organisations that are, in the Minister's opinion,
representative of the interests of:
- fruit and vegetable wholesalers or the farm produce trade (2
persons);
- fruit and vegetable growers (2 persons);
- fruit and vegetable buyers or retailers (2 persons).
The new provision also provides that members of the Horticulture
Industry Policy Council ("the policy council") may be members of the
selection committee, and that the chairperson of the selection committee is
entitled to be paid by the authority the fees and allowances the Governor in
Council may decide.
Under new sections 14(1) and (2), the Minister may give directions
regarding procedures, timing and criteria to be applied by the committee in
selecting nominees for appointment to the authority; however, these may
not require a particular person to be nominated.
New section 14(3) stipulates that:
· members of the policy council;
· members of the selection committee; or
· a chairperson, deputy chairperson or chief executive (regardless
of the title used) of an organisation representing:
- fruit and vegetable growers;
- fruit and vegetable wholesalers or the farm produce trade; or
- fruit and vegetable buyers or retailers;
cannot be nominated by the committee.
New section 15 relates to matters dealing with the appointment of
members to the authority:
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Horticulture Legislation Amendment
· section 15(1) provides that a member of the authority cannot be
appointed for a term which is longer than 3 years;
· section 15(2) provides the grounds on which the office of a
member of the authority becomes vacant; and
· sections 15(3) and (4) provide the grounds on which the
Governor in Council may remove a member from office.
Under new section 16, the Governor in Council decides the fees and
allowances which the members of the authority are entitled to be paid by the
authority.
New sections 17(1) and (2) provide that the authority decides the time
and place of its meetings, although meetings must occur at least once every
3 months. New section 17(3) goes on to provide that the Chairperson can
call a meeting at any time and must call a meeting if requested by at least 4
members.
New section 18 deals with the procedures governing the conduct of the
authority's meetings. In particular, when he or she is present at a meeting,
the chairperson must preside at a meeting--otherwise, the members which
are present must select a presiding member. Under new section 18(3), 4
members form a quorum, and a motion is decided by a majority of votes
(with the presiding member having the casting vote if necessary).
New section 18 also provides that the authority may conduct its meetings
as it considers appropriate and may hold meetings by phone, closed circuit
TV etc. If all members agree in writing to a proposed resolution, which
was given under an authority approved procedure, the resolution is valid
even if not passed at a meeting.
New section 19 provides that a member who has a direct or indirect
financial interest in an issue being or about to be considered by the authority
(and that interest could conflict with the proper performance of the
member's duties) must disclose his or her interest to the meeting. The
disclosure must be recorded in the minutes and the member must not be
present during consideration of the issue or take part in a decision on the
issue unless the authority otherwise agrees. New section 19(4) further
provides that another member who has a direct or indirect financial interest
in the issue must not be present (or take part in the making of the decision)
when the authority decides whether the first member can:
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Horticulture Legislation Amendment
· be present when the authority considers the issue; or
· vote on the issue.
New section 20 requires minutes to be kept of proceedings of the
authority.
New section 21 provides that the authority may employ staff as it
considers necessary to perform its functions on terms it may decide, but
subject to any relevant industrial award or agreement.
Under new section 22, the authority must employ a chief executive
officer and a secretary--although the one person may hold both positions.
The chairperson of the authority cannot also be the chief executive officer.
New section 23 requires that judicial notice must be taken of the imprint
of the authority's seal on a document.
New section 24 provides that the authority may establish committees as
it considers appropriate to advise it. When establishing a committee, the
authority can determine the committee's functions, membership,
appointment conditions and methods of operation. A committee's
recommendations must be given proper consideration by the authority.
New sections 25 and 27 deal with the application of certain Acts to the
authority. New section 25 essentially provides that the usual range of public
sector accountability legislation is to apply to the authority with the
exception that the Public Sector Management Commission Act 1990 does
not apply to the authority or its employees (new section 27).
New section 26 requires the authority to consult with the policy council
after it has prepared a strategic plan as required by the public finance
standards issued under section 46L of the Financial Administration and
Audit Act 1977.
Clause 8 renumbers section 12A of the Act as section 28.
Clause 9 deletes sections which are no longer needed in the Act,
specifically:
· section 13 which deals with the filling of casual vacancies on the
Brisbane Market Trust;
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Horticulture Legislation Amendment
· section 14 which establishes the Brisbane Market Trust;
· section 15 which provides the Brisbane Market Trust with the
power to acquire land and provides that the Trust's land is not
rateable;
· section 16 which provides the Brisbane Market Trust with certain
powers and functions and requires it to establish and maintain a
public market in the City of Brisbane; and
· section 16A which provides the mechanism by which the
Brisbane Market Trust may dispose of surplus land.
Clause 10 essentially:
· deletes sections 17(1) to 17(4) of the Act (these provisions are
now not necessary given the powers and functions provided to
the authority in new sections 6 & 7);
· deletes a spent provision (section 17(6)); and
· revises the remainder of section 17 in line with current legislative
drafting policy.
Clause 11 replaces sections 18 to 25B with new Parts. The provisions
being replaced (sections 18 to 21A) deal with financial matters which are
now covered by the Financial Administration and Audit Act 1977.
PART 3--REVIEW OF ADMINISTRATIVE
DECISIONS
New section 30 provides that a person who is aggrieved by an
administrative decision of the authority can apply to the authority for a
reconsideration of the decision. (Note that the person is entitled to receive a
statement of reasons for the decision under the Judicial Review Act 1991.)
New section 31 provides that, when reconsidering its decision, the
authority has the power to confirm, amend or reverse its original decision.
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Horticulture Legislation Amendment
New section 32 provides a person who is aggrieved by a decision made
by the authority under section 31 may appeal to the Magistrates Court
against that decision.
New section 33 sets out the procedure for initiating an appeal. The
appellant must file the notice of appeal within 28 days of receipt of the
decision. The court, however, may extend the time for lodging the notice of
appeal. New section 33(4) requires that the notice of appeal state the
grounds of the appeal.
New section 34 provides the court with the power to grant a stay of a
decision which is being appealed against to secure the effectiveness of the
appeal. The operation of a decision which is being appealed against is not
affected unless the court has granted a stay.
New section 35 sets out the hearing procedures to be adopted by the
court when it deals with the appeal. In particular, it requires that the appeal
be by way of a rehearing of the matter, and that, in deciding the appeal, the
court is not bound by the rules of evidence. Furthermore, when the court
hears the decision it must observe the rules of natural justice, and it may
hear the matter in court or in chambers.
New section 36 sets out the court's powers when hearing the appeal: the
court may confirm the decision, set aside the decision and substitute it with
an another decision, or set aside the decision and return the matter to the
authority for reconsideration with any directions which the court considers
appropriate.
Under new section 37, a person aggrieved by the decision of the
Magistrates Court is provided with a right of appeal to the District Court on
a question of law.
PART 4--MISCELLANEOUS
Clause 12 renumbers sections 25C to 25H in the Act.
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Horticulture Legislation Amendment
Clause 13 deletes the regulation-making provision of the Act (section 26
of the Act). Note that a new regulation-making provision is inserted by
clause 18.
Clause 14 amends the by-law making power of the Act (section 27 of
the Act). Under the amended provision, the authority will be able to make
by-laws. By-laws are subordinate legislation, and must be approved by the
Governor in Council.
Clause 14(13) amends section 27(1A)(a) to provide that a by-law can be
made which targets either the registered owner of a vehicle or the actual
offender. (Note that a number of by-laws relate to the use, parking, etc of
vehicles at the market.)
Clause 15 essentially updates the wording of section 28 of the Act--to
provide that an offence under the Act is a summary offence.
Clause 16 renumbers section 28A of the Act.
Clause 17 makes some minor technical revisions to section 28B and also
renumbers this provision as section 47.
Clause 18 inserts a new regulation-making provision (section 48) into
the Act.
Clause 19 inserts a new Part.
PART 5--TRANSITIONAL PROVISIONS
New section 49 defines some terms for the purposes of this new Part.
New section 50 provides for the continuation of the Brisbane Market
Trust ("the former authority" for the purposes of Part 5) until the
changeover day (which will be 6 months after commencement of this Bill
unless an earlier date is fixed by regulation).
New section 51 provides for the vesting of assets, rights and liabilities of
the Brisbane Market Trust with the new authority.
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Horticulture Legislation Amendment
New section 52 provides that legal proceedings instituted by or against
the Brisbane Market Trust may be continued and finished by or against the
new authority.
New section 53 provides for the transfer of staff of the Brisbane Market
Trust to the new authority.
New section 54 deems that a superannuation scheme to which the
Brisbane Market Trust contributed becomes a scheme to which the
authority contributed.
New section 55 provides for the transfer of officers appointed as market
officers to the new authority.
New section 56 provides that approvals, permits and licences of the
Brisbane Market Trust continue to be in force (subject to any conditions or
terms of the approval, permit or licence) for a year after the changeover day.
New section 57 requires that all entries which must be made to register
the transfer of property from the Brisbane Market Trust to the new authority
must be made at the request of the authority, and that no fees are payable for
such registration.
New section 58 provides that this new Part expires 1 year after the Bill
commences.
New section 59 provides that a reference to the Trust is taken to be a
reference to the authority. This section expires when the Act is first
reprinted under the Reprints Act 1992.
New section 60 sets out requirements relating to the reprinting of the Act.
Clause 20 removes an obsolete schedule from the Act.
PART 3--AMENDMENTS OF THE FARM PRODUCE
MARKETING ACT 1964
Clause 21 provides that this Part amends the Farm Produce Marketing
Act 1964 ("the Act").
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Horticulture Legislation Amendment
Clause 22 inserts a new Part heading into the Act.
PART 1--PRELIMINARY
Clause 23 omits a redundant provision from the Act.
Clause 24 amends the definitions' section of the Act. All of the new
definitions (with the exception of the definition of the "policy council") do
not directly result from policy changes stemming from the Bill, but rather
are in the nature of statute revision.
Clause 25 inserts a new Part into the Act.
PART 2--FARM PRODUCE COMMERCIAL
SELLERS
Clause 26 to 46 revise various sections of the Act in line with current
legislative drafting practice. In particular:
· clauses 27, 28, 36 & 44 replace references to prescribed forms
with approved forms;
· clauses 30 & 46 omit redundant headings;
· clause 31 removes a superfluous sentence from section 15;
· clauses 40 and 41 remedy provisions which discriminate against
financial institutions which are not banks; and
· clauses 33 to 45 revise offence provisions in line with current
legislative drafting practice.
Clause 48 inserts a new Part into the Act.
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Horticulture Legislation Amendment
PART 3--THE HORTICULTURE INDUSTRY POLICY
COUNCIL
New section 46 establishes the Horticulture Industry Policy Council
("the policy council").
Under new section 46A, the functions of the policy council are to:
(i) address, and advise on, the long term strategic issues facing the
horticulture industry, and to develop appropriate policy responses;
(ii) examine, and make recommendations to the Minister on industry
issues, either on its own initiative or if asked by the Minister or
authority;
(iii) examine, and make recommendations to the Minister on the
operation of the State's horticulture industry legislation and the
achievement of the objectives of that legislation;
(iv) examine and make recommendations to the Minister on the
authority's strategic plan;
(v) find out industry views on industry administration and pass them
on to the Minister; and
(vi) ssist in the selection of members of the authority as provided for
in the City of Brisbane Market Act 1960 as amended by the Bill.
New section 46B deals with the membership of the policy council. The
policy council will include:
· the Minister (or his or her nominee) who is to be chairperson; and
· other persons the Minister considers necessary and appropriate to
adequately represent all sections of the industry.
Under new section 46C, the policy council may meet whenever it is
necessary for it to conduct its business, but it must meet at least once every
6 months. The Minister may convene a meeting at any time, and he or she
must convene a meeting if requested to by at least three quarters of
members of the policy council.
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Horticulture Legislation Amendment
New section 46D provides that the policy council may establish
committees to advise it and may decide membership, functions and how a
committee is to operate.
Clause 49 inserts a new Part heading.
PART 4--MISCELLANEOUS
Clauses 50 to 53 are in the nature of statute revision. In particular:
· redundant headings are removed;
· offence provisions are revised in line with current legislative
drafting practice;
· the regulation-making provision is revised in line with current
legislative drafting practice;
· references to prescribed forms are changed to approved forms (ie,
forms approved by the chief executive of the Department); and
· provisions which discriminate against financial institutions which
are not banks are rectified.
Clause 53 omits a superfluous provision and replaces it with new
section:
· 51--which provides that the chief executive may approve forms
for use under the Act; and
· 51A--which provides that existing prescribed forms continue for
6 months after commencement unless they are revised and issued
as prescribed forms sooner.
Clause 54 inserts a new section 54 which provides that the Act expires
on 31 December 1999.
© The State of Queensland 1995