Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 125A.
The following is a simplified outline of this Schedule:
• This Schedule provides a framework for the implementation of the Dairy Industry Adjustment Program.
• The main object of the Dairy Industry Adjustment Program is to help the dairy industry or dairy communities adjust to deregulation by providing for 4 types of grants, as follows:
(a) DSAP payments (made under this Schedule);
(b) SDA payments (made under this Schedule);
(d) payments under the Dairy Regional Assistance Programme (see clause 86).
• Generally, DSAP payments are calculated by reference to 1998 - 1999 milk deliveries at a rate of 46.23 cents per litre for market milk and a national average rate of 8.96 cents per litre for manufacturing milk.
• There are 3 types of SDA payment rights: basic market milk payment rights, additional market milk payment rights and discretionary payment rights.
• The Dairy Adjustment Authority will administer DSAP and SDA payment rights.
• The Dairy Industry Adjustment Program will be funded by a dairy adjustment levy on milk products.
• The levy will be paid into a Dairy Structural Adjustment Fund, and DSAP payments, SDA payments and payments under the Dairy Regional Assistance Programme will be paid out of that Fund.
In this Schedule, unless the contrary intention appears:
"annual" means per financial year.
"business day" means a day that is not a Saturday, a Sunday, or a public holiday in the Australian Capital Territory .
"claim" means a claim for a payment right.
"DAA" means the Dairy Adjustment Authority established by this Schedule.
"DAA Chair" means the Chair of the DAA.
Note: Section 18B of the Acts Interpretation Act 1901 deals with how chairs may be referred to.
"DAA member" means a member of the DAA.
"dairy cattle" means cattle held for use for the production of milk, or for purposes incidental to the production of milk, and includes:
(a) dairy cows; and
(b) dairy heifers; and
(c) calves that are the progeny of dairy cows; and
(d) bulls used, or held for use, for the purpose of fertilising dairy cows or dairy heifers.
"dairy farm enterprise" has the meaning given by clause 6.
"deliver" means:
(a) in relation to market milk--supply as mentioned in whichever of the following is applicable:
(i) paragraph 5(1)(a) of the repealed Dairy Produce Levy (No. 1) Act 1986 ;
(ii) paragraph 6(1)(a) of Schedule 6 to the Primary Industries (Excise) Levies Act 1999 ; and
(b) in relation to manufacturing milk covered by paragraph ( a) of the definition of manufacturing milk in this clause--deliver as mentioned in that paragraph; and
(c) in relation to manufacturing milk covered by paragraph ( b) of the definition of manufacturing milk in this clause--use as mentioned in that paragraph.
"DSAP claim period" has the meaning given by clause 4.
"DSAP payment" means a payment under the DSAP payment scheme.
"DSAP payment start day" has the meaning given by clause 3.
"DSAP scheme" means the scheme referred to in clause 10.
"eligible interest in a dairy farm enterprise" has the meaning given by clause 7.
"engage in conduct" means:
(a) do an act; or
(b) omit to perform an act.
"entity" has the meaning given by clause 5.
"manufacturing milk" means:
(a) relevant dairy produce delivered by the producer to a manufacturer during a month ending before 1 July 2000, in respect of which a domestic market support payment has been paid under section 108A of this Act as in force before the conversion time; or
(b) relevant dairy produce produced by a manufacturer and used by the manufacturer, during a month ending before 1 July 2000, in the manufacture of dairy produce, in respect of which a domestic market support payment has been paid under section 108A of this Act as in force before the conversion time;
other than market milk.
"market milk" means milk on which levy was imposed by whichever of the following is applicable:
(a) paragraph 5(1)(a) of the repealed Dairy Produce Levy (No. 1) Act 1986 ;
(b) paragraph 6(1)(a) of Schedule 6 to the Primary Industries (Excise) Levies Act 1999 .
"non-premium component" , in relation to the overall enterprise amount of a dairy farm enterprise, means so much of the overall enterprise amount as does not consist of the premium component of the overall enterprise amount.
"ordinary DAA member" means a DAA member other than the Secretary.
"overall enterprise amount" , in relation to a dairy farm enterprise, means the sum of:
(a) the amount calculated at the rate of 46.23 cents per litre of market milk delivered by the enterprise in the 1998 - 1999 financial year; and
(b) the amount calculated at the rate of 76.03 cents per kilogram of the milk fat content of manufacturing milk delivered by the enterprise in the 1998 - 1999 financial year; and
(c) the amount calculated at the rate of 178.77 cents per kilogram of the protein content of manufacturing milk delivered by the enterprise in the 1998 - 1999 financial year.
Note 1: It is expected that the result of applying the rates mentioned in paragraphs ( b) and (c) will be a national average rate of 8.96 cents per litre of manufacturing milk.
Note 2: See also clause 30 (which deals with the transfer of the whole or part of market milk delivery rights).
Note 3: See also clause 31 (which deals with abnormal market milk pool distributions).
"payment right" means a payment right under the DSAP scheme or the SDA scheme.
"premium component" , in relation to the overall enterprise amount of a dairy farm enterprise, means so much of the overall enterprise amount as is attributable to 37.27 cents per litre of market milk delivered by the enterprise in the 1998 - 1999 financial year.
Note 1: See also clause 30 (which deals with the transfer of the whole or part of market milk delivery rights).
Note 2: See also clause 31 (which deals with abnormal market milk pool distributions).
"quarter" means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of any year.
"SDA payment" means a payment under the SDA scheme.
"SDA scheme" means the scheme referred to in clause 37B.
"Secretary" means the Secretary of the Department.
"trustee" includes an executor and an administrator.
"unit" means a unit in a payment right.
(1) For the purposes of this Schedule, the DSAP payment start day means a day to be fixed by Proclamation for the purposes of this subclause.
(2) The DSAP payment start day must not be earlier than 1 July 2000.
(3) If the DSAP payment start day is not fixed by a Proclamation published in the Gazette within the period of 6 months beginning on the day on which the Dairy Industry Adjustment Act 2000 receives the Royal Assent, Part 2 of this Schedule is repealed on the first day after the end of that period.
(4) To avoid doubt, if:
(a) Part 2 of this Schedule is repealed as a result of the operation of subclause ( 3); and
(b) an entity was granted a payment right before the repeal;
that payment right is taken never to have come into existence.
(1) The Minister may, by notice published in the Gazette , declare that a 3 - month period specified in the notice is the DSAP claim period for the purposes of this Schedule.
(2) The declaration has effect accordingly.
(1) For the purposes of this Schedule, each of the following is an entity :
(a) an individual;
(b) a body corporate;
(c) a body politic;
(d) a trustee of a particular trust estate.
(2) A person can have a number of different capacities in which the person does things. In each of those capacities, the person is taken to be a different entity .
Note: For example, take the case of a person who, in addition to his or her personal capacity, is a trustee of 2 trusts. In his or her personal capacity, he or she is one entity. As a trustee of each trust, he or she is a different entity.
(1) For the purposes of this Schedule, a dairy farm enterprise is a business in Australia that delivers market milk and/or manufacturing milk.
Eligible dairy sharefarming arrangements
(2) For the purposes of this clause, if:
(a) under the DSAP scheme, an arrangement is taken to be an eligible dairy sharefarming arrangement; and
(b) apart from this subclause, that arrangement involves 2 or more businesses;
those businesses are to be treated as a single business.
Eligible dairy leasing arrangements
(3) For the purposes of this clause, if:
(a) under the DSAP scheme, an arrangement is taken to be an eligible dairy leasing arrangement; and
(b) apart from this subclause, that arrangement involves 2 or more businesses;
those businesses are to be treated as a single business.
Continuity of a business or dairy farm enterprise
(4) For the purposes of this Schedule, the continuity of a business or a dairy farm enterprise is not affected by:
(a) any change in the identity of the entity or entities who carry on the business or enterprise; or
(b) any change in the ownership of the business or enterprise.
7 Eligible interest in a dairy farm enterprise
(1) For the purposes of this Schedule, an entity has an eligible interest in a dairy farm enterprise if:
(a) both:
(i) under the DSAP scheme, the enterprise is not taken to be subject to an eligible dairy sharefarming arrangement or an eligible leasing arrangement; and
(ii) the entity carries on the enterprise (whether alone or together with one or more other entities); or
(b) both:
(i) under the DSAP scheme, the enterprise is taken to be subject to an eligible dairy sharefarming arrangement; and
(ii) under the DSAP scheme, the entity is taken to be a party to that arrangement; or
(c) both:
(i) under the DSAP scheme, the enterprise is taken to be subject to an eligible dairy leasing arrangement; and
(ii) under the DSAP scheme, the entity is taken to be a party to that arrangement.
(2) For the purposes of this Schedule, if:
(a) an individual had an eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999; and
(b) the individual dies after that time, but before making a claim for a payment right;
this Schedule has effect as if the trustee of the deceased individual's estate had held that interest at that time.
8 Application to things happening before commencement
The use of the present tense in a provision of this Part does not imply that the provision does not apply to things happening before the commencement of this Schedule.
Part 2 -- DSAP payments and SDA payments
The following is a simplified outline of this Division:
• This Division provides a framework for the making of DSAP payments.
• The Minister is required to formulate a scheme (the DSAP scheme ) for the grant of payment rights to entities who held an eligible interest in a dairy farm enterprise on 28 September 1999.
• The DSAP scheme will provide for 3 types of payment rights, as follows:
(a) standard payment rights;
(b) exceptional events supplementary payment rights.
(c) anomalous circumstances payment rights.
• Standard payment rights will be based on milk deliveries in 1998 - 1999, and will be worked out by reference to a rate of 46.23 cents per litre for market milk and a national average rate of 8.96 cents per litre for manufacturing milk.
• Exceptional events supplementary payment rights may be granted in cases where, because of exceptional events, the volume of milk deliveries in 1998 - 1999 is less than 70% of the average milk deliveries in the 3 previous financial years.
• Anomalous circumstances payment rights may be granted to entities who have been affected by anomalous circumstances.
• Entities who wish to obtain a payment right under the DSAP scheme must undertake a farm business assessment.
• The total value of the payment rights granted to an entity must not exceed $350,000 unless more than 70% of the entity's total gross income consists of dairy income.
• Payment rights will be divided into units, where each unit has a face value of $32.
• A registered owner of a unit will be entitled to a quarterly payment of $1 for each of the 32 quarters in the 8 - year period beginning on 1 July 2000.
Within 14 days after the commencement of this Schedule, the Minister must, by writing, formulate a scheme (the DSAP scheme ) for:
(a) the grant of payment rights to entities who:
(i) held an eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) satisfy such other conditions as are set out in the scheme; and
(b) the division of payment rights into units; and
(c) the registration of units; and
(d) the making of payments out of the Dairy Structural Adjustment Fund to registered owners of units.
11 General policy objectives for the DSAP scheme
The DSAP scheme must be directed towards ensuring the achievement of the policy objectives set out in clauses 12 to 23.
(1) This clause sets out a policy objective for the DSAP scheme.
(2) The objective is that there are to be 3 types of payment rights, as follows:
(a) the first type of payment rights are to be known as standard payment rights ;
(b) the second type of payment rights are to be known as exceptional events supplementary payment rights ;
(c) the third type of payment rights are to be known as anomalous circumstances payment rights .
(1) This clause sets out policy objectives for the DSAP scheme.
Basic eligibility criteria
(2) The first objective is that an entity is not eligible to be granted a standard payment right unless:
(a) the entity held an eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999; and
(b) either or both of the following conditions are satisfied:
(i) during the 1998 - 1999 financial year, the dairy farm enterprise delivered market milk;
(ii) during the 1998 - 1999 financial year, the dairy farm enterprise delivered manufacturing milk.
Calculation of face value
(3) The second objective is that the calculation of the face value of an entity's standard payment right must be consistent with the following examples:
(a) if the entity is the only entity who had an eligible interest in the dairy farm enterprise at 6.30 pm on 28 September 1999--the face value of the entity's standard payment right equals the overall enterprise amount;
(b) if:
(i) there are 2 or more entities who had an eligible interest in the dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) under the scheme, the enterprise is not taken to be subject to an eligible dairy sharefarming arrangement or an eligible dairy leasing arrangement;
the face value of the first - mentioned entity's standard payment right is that entity's share of the overall enterprise amount, worked out on a basis that corresponds to the basis on which milk revenues were shared between the entities as at 6.30 pm on 28 September 1999;
(c) if:
(i) there are 2 entities who had an eligible interest in the dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) under the scheme, the enterprise is taken to be subject to an eligible dairy sharefarming arrangement and those entities are taken to be parties to that arrangement; and
(iii) the first - mentioned entity is an entity who, under the scheme, is taken to have provided the essential capital contribution required to achieve access to the market milk premium;
the face value of the first - mentioned entity's standard payment right is the sum of:
(iv) the premium component of the overall enterprise amount; and
(v) that entity's share of the non - premium component of the overall enterprise amount, worked out on a basis that corresponds to the basis on which milk revenues were shared between the entities as at 6.30 pm on 28 September 1999;
(d) if:
(i) there are 2 entities who had an eligible interest in the dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) under the scheme, the enterprise is taken to be subject to an eligible dairy sharefarming arrangement and those entities are taken to be parties to that arrangement; and
(iii) the first - mentioned entity is not an entity who, under the scheme, is taken to have provided the essential capital contribution required to achieve access to the market milk premium;
the face value of the first - mentioned entity's standard payment right is that entity's share of the non - premium component of the overall enterprise amount, worked out on a basis that corresponds to the basis on which milk revenues were shared between the entities as at 6.30 pm on 28 September 1999;
(e) if:
(i) there are 2 entities who had an eligible interest in the dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) under the scheme, the enterprise is taken to be subject to an eligible dairy leasing arrangement and those entities are taken to be parties to that arrangement; and
(iii) the first - mentioned entity is an entity who, under the scheme, is taken to have provided the essential capital contribution required to achieve access to the market milk premium;
the face value of the first - mentioned entity's standard payment right is the premium component of the overall enterprise amount;
(f) if:
(i) there are 2 entities who had an eligible interest in the dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) under the scheme, the enterprise is taken to be subject to an eligible dairy leasing arrangement and those entities are taken to be parties to that arrangement; and
(iii) the first - mentioned entity is not an entity who, under the scheme, is taken to have provided the essential capital contribution required to achieve access to the market milk premium;
the face value of the first - mentioned entity's standard payment right is the non - premium component of the overall enterprise amount.
(4) Paragraphs ( 3)(c), (d), (e) and (f) deal with common types of arrangements that involve 2 parties. Those paragraphs do not, by implication, limit the capacity of the DSAP scheme to deal with less common types of arrangements that involve 3 or more parties--see clause 34.
Essential capital contribution
(5) In formulating a provision of the DSAP scheme under which an entity is taken to have provided the essential capital contribution required to achieve access to the market milk premium, the Minister must not have regard to any matters other than the following:
(a) whether the entity is the owner of a quota relating to the delivery of market milk;
(b) whether the entity is the owner of the land on which the eligible dairy farm enterprise is carried on;
(c) whether the entity is the owner of a significant proportion of the livestock used in, or for purposes incidental to, the carrying on of the eligible dairy farm enterprise.
(6) For the purposes of paragraph ( 5)(c), the proportion of livestock owned by a partner in a partnership is taken to be the same as the proportion of the livestock owned by the partnership.
(7) For the purposes of paragraph ( 5)(c), a proportion of less than 25% is taken not to be a significant proportion.
14 Exceptional events supplementary payment right
(1) This clause sets out policy objectives for the DSAP scheme.
Basic eligibility criteria
(2) The first objective is that an exceptional events supplementary payment right must not be granted to an entity in respect of a particular dairy farm enterprise unless:
(a) the entity has already been granted a standard payment right in respect of the enterprise; and
(b) the entity satisfies the DAA that, as a result of one or more events that, under the scheme, are taken to be recognised exceptional events, the volume of market milk and manufacturing milk delivered by the enterprise during the 1998 - 1999 financial year is less than 70% of the average annual volume of market milk and manufacturing milk delivered by the enterprise in the following 3 financial years:
(i) the 1997 - 1998 financial year;
(ii) the 1996 - 1997 financial year;
(iii) the 1995 - 1996 financial year.
Total face value of payment rights
(3) The second objective is that the sum of:
(a) the face value of a standard payment right granted to an entity in respect of a particular dairy farm enterprise; and
(b) the total face value of the exceptional events supplementary payment rights granted to the entity in respect of the enterprise;
must not exceed the amount that would have been the total face value of the standard payment right if:
(c) the volume of market milk delivered by the dairy farm enterprise during the 1998 - 1999 financial year had equalled the average annual volume of market milk delivered by the enterprise in the following 3 financial years:
(i) the 1997 - 1998 financial year;
(ii) the 1996 - 1997 financial year;
(iii) the 1995 - 1996 financial year; and
(d) the volume of manufacturing milk delivered by the dairy farm enterprise during the 1998 - 1999 financial year had equalled the average annual volume of manufacturing milk delivered by the enterprise in the following 3 financial years:
(i) the 1997 - 1998 financial year;
(ii) the 1996 - 1997 financial year;
(iii) the 1995 - 1996 financial year.
Discretionary grant
(4) The third objective is that the grant of an exceptional events payment right is to be at the discretion of the DAA.
15 Anomalous circumstances payment right
(1) This clause sets out policy objectives for the DSAP scheme.
Basic eligibility criteria
(2) The first objective is that an entity is not eligible for the grant of an anomalous circumstances payment right unless:
(a) the entity did not pass the standard DSAP test; and
(b) the entity held an eligible interest in a dairy farm enterprise during the whole or a part of the 1998 - 1999 financial year; and
(c) under the scheme, the entity is taken to have been affected by anomalous circumstances.
Standard DSAP test
(3) For the purposes of this clause, an entity passes the standard DSAP test if, and only if:
(a) the entity held an eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999; and
(b) either or both of the following conditions are satisfied:
(i) during the 1998 - 1999 financial year, the dairy farm enterprise delivered market milk;
(ii) during the 1998 - 1999 financial year, the dairy farm enterprise delivered manufacturing milk.
Discretionary grant
(4) The second objective is that the grant of an anomalous circumstances payment right is to be at the discretion of the DAA.
(1) This clause sets out a policy objective for the DSAP scheme.
(2) The objective is that the total face value of payment rights granted to an entity in respect of a particular dairy farm enterprise must not exceed $350,000 unless a person who, under the scheme, is taken to be a qualified financial adviser certifies in writing that, to the best of the adviser's knowledge and belief:
(a) the entity has given the adviser full access to the entity's accounts and financial records; and
(b) the entity passes the 70% dairy income test.
70% dairy income test
(3) For the purposes of this clause, an entity passes the 70% dairy income test if, and only if:
(a) more than 70% of the total gross income derived by the entity in the 1998 - 1999 financial year consisted of eligible dairy income; or
(b) more than 70% of the total gross income derived by the entity in the period comprising:
(i) the 1998 - 1999 financial year; and
(ii) the 1997 - 1998 financial year; and
(iii) the 1996 - 1997 financial year;
consisted of eligible dairy income.
Gross income
(4) For the purposes of subclause ( 3), the gross income derived by an entity is to be worked out in accordance with:
(a) generally accepted accounting principles; or
(b) if, under the scheme, the generally accepted accounting principles are taken to be modified for the purposes of the scheme--those principles as so modified.
Eligible dairy income
(5) For the purposes of this clause, eligible dairy income means:
(a) proceeds from the sale of market milk; and
(b) proceeds from the sale of manufacturing milk; and
(c) proceeds from the sale or lease of dairy cattle; and
(d) dividends payable in respect of shares in bodies that, under the scheme, are taken to be eligible dairy cooperatives; and
(e) dividends payable in respect of shares in companies that, under the scheme, are taken to be eligible dairy companies;
(f) an amount that, under the scheme, is taken to be the income test value of a bonus share issued by a company that, under the scheme, is an eligible dairy cooperative;
(g) an amount that, under the scheme, is taken to be the income test value of a bonus share issued by a company that, under the scheme, is an eligible dairy company.
Shares issued in lieu of payment for the sale of milk
(6) For the purposes of this clause, if a share in a body or company that, under the scheme, is taken to be:
(a) an eligible dairy cooperative; or
(b) an eligible dairy company;
is issued to a shareholder in the cooperative or company in lieu of a particular payment for the sale of market milk or manufacturing milk:
(c) the shareholder is taken to have derived an amount, by way of proceeds from the sale of that milk, equal to the amount of that payment; and
(d) those proceeds are taken to be gross income according to generally accepted accounting principles.
Bonus shares
(7) For the purposes of this clause, if a bonus share in a body or company that, under the scheme, is taken to be:
(a) an eligible dairy cooperative; or
(b) an eligible dairy company;
is issued to a shareholder in the cooperative or company:
(c) the shareholder is taken to have derived an amount of income equal to the amount that, under the scheme, is the income test value of the bonus share; and
(d) that amount of income is taken to be gross income according to generally accepted accounting principles.
False or misleading statements in certificates
(8) For the purposes of clause 50, a statement made in a certificate of a kind referred to in subclause ( 2) of this clause is taken to be made to a person who was exercising powers, or performing functions, under or in connection with the DSAP scheme.
Note: Clause 50 deals with false or misleading statements.
(9) For the purposes of section 136.1 of the Criminal Code , a statement made in a certificate of a kind referred to in subclause ( 2) of this clause is taken to be a statement made in connection with a claim for a payment right.
Note: Section 136.1 of the Criminal Code deals with false or misleading statements.
(1) This clause sets out policy objectives for the DSAP scheme.
(2) The first objective is that an entity is not eligible for the grant of a payment right unless:
(a) the entity has complied with such rules as are set out in the scheme in relation to the carrying out of a farm business assessment by a person who, under the scheme, is taken to be a qualified financial adviser; or
(b) a person who, under the scheme, is taken to be a qualified financial adviser has certified in writing that the entity has complied with such rules as are set out in the scheme in relation to the carrying out by the entity of a farm business assessment; or
(c) under the scheme, the entity is exempt from carrying out a farm business assessment.
Note: For example, the DSAP scheme may provide that an entity who has exited the dairy industry is exempt from carrying out a farm business assessment.
Compliance after making claim
(3) The second objective is that an entity is not to be prevented from making a claim for the grant of a payment right at a time when the entity has not complied with requirements mentioned in subclause ( 2), so long as those requirements are complied with before the time ascertained in accordance with the scheme.
False or misleading statements in certificates
(4) For the purposes of clause 50, a statement made in a certificate of a kind referred to in paragraph ( 2)(b) of this clause is taken to be made to a person who was exercising powers, or performing functions, under or in connection with the DSAP scheme.
Note: Clause 50 deals with false or misleading statements.
(5) For the purposes of section 136.1 of the Criminal Code , a statement made in a certificate of a kind referred to in paragraph ( 2)(b) of this clause is taken to be a statement made in connection with a claim for a payment right.
Note: Section 136.1 of the Criminal Code deals with false or misleading statements.
(1) This clause sets out policy objectives for the DSAP scheme.
(2) The first objective is that each payment right is to be divided into units, where each unit has a face value of $32.
(3) The second objective is that the number of units into which a payment right is divided is to be worked out as follows:
(a) divide the number of dollars in the face value of the payment right by 32;
(b) if the result of the division is a whole number--that number is the number of units in the payment right;
(c) if the result of the division is less than 1--there is 1 unit in the payment right;
(d) if the result of the division is greater than 1, but is not a whole number:
(i) round the result of the division up or down to the nearest whole number (rounding up in the case exactly half - way between 2 whole numbers); and
(ii) the rounded number is the number of units in the payment right.
(1) This clause sets out a policy objective for the DSAP scheme.
(2) The objective is that a payment right is to be granted subject to the powers of cancellation conferred on the DAA under the authority of clauses 50, 51 and 52 .
Note 1: Clause 50 deals with cancellation of units because of the making of a false statement.
Note 2: Clause 51 deals with cancellation of units because of an error made by the DAA.
Note 3: Clause 52 deals with cancellation of units because of a breach of an undertaking to dispose of the units.
(1) This clause sets out policy objectives for the DSAP scheme.
(2) The first objective is that a payment right relating to a particular dairy farm enterprise must not be granted to an entity unless the entity, or a person acting on behalf of the entity, makes a claim for the payment right:
(a) during the DSAP claim period; or
(b) if:
(i) one or more units in another payment right were cancelled as authorised under clause 50 or 51; and
(ii) the other payment right relates to the enterprise; and
(iii) the DAA allows the claim for the first - mentioned payment right to be made within a particular period after the end of the DSAP claim period;
within that particular period.
(3) The second objective is that DSAP payments are not to be made before the DSAP payment start day.
(4) The third objective is that DSAP payments are not to be made in respect of a quarter that is later than the quarter ending on 30 June 2008.
(5) Subclause ( 2) does not prevent the DSAP scheme from making provision for the amendment of claims.
(1) This clause sets out policy objectives for the DSAP scheme.
Register
(2) The first objective is that the DAA is to keep a register in which the DAA includes particulars of units.
Registration of ownership
(3) The second objective is that an entity's ownership of a unit is not to be counted for the purposes of the scheme unless that ownership is entered on the register.
(4) The third objective is that the transfer of the ownership of a unit is not to be registered unless:
(a) the transferee is an eligible entity; or
(b) the transferee gives the DAA a written undertaking to assign the unit to an eligible entity within 60 days after the transfer is registered.
Note: For enforcement of the undertaking, see clause 52.
Registration of charges
(5) The fourth objective is that the scheme may provide for the registration of charges over units.
Inspection of register
(6) The fifth objective is that an entry on the register relating to a unit is to be open for inspection in the following circumstances:
(a) the owner of the unit consents to the entry being open for inspection;
(b) such circumstances as are set out in the scheme.
Form of register
(7) The sixth objective is that the DAA may keep the register in electronic form or otherwise.
No declaration of trust in respect of unit
(8) The seventh objective is that:
(a) the owner of a unit must not dispose of a unit by way of declaration of trust; and
(b) if a purported disposal contravenes the rule in paragraph ( a), it is of no effect.
Beneficial interest in unit must not be transferred independently of legal interest
(9) The eighth objective is that:
(a) a beneficial interest in a unit must not be transferred independently of the legal interest in the unit; and
(b) if a purported transfer contravenes the rule in paragraph ( a), it is of no effect.
(10) In this clause:
"eligible entity" means an entity included in a class of entities declared by the DSAP scheme to be entities who are eligible to become transferees of units.
22 Invitations to make claims for payment rights etc.
(1) This clause sets out policy objectives for the DSAP scheme.
Public information program
(2) The first objective is that the DAA is to conduct a public information program about the scheme.
DAA to obtain and record information
(3) The second objective is that the DAA is to obtain and record information that:
(a) is likely to assist entities in making claims for payment rights; or
(b) is likely to assist the DAA in determining claims for payment rights.
Formal invitations to make claims
(4) The third objective is that:
(a) if the DAA has reasonable grounds to believe, on the basis of the information referred to in subclause ( 4), that it may be in the interests of an entity for the entity to make a claim for a payment right; and
(b) if the DAA were to give the entity a formal invitation to make such a claim, there would be sufficient time for the claim to be made before the end of the DSAP claim period;
the DAA must make all reasonable efforts to give the entity a formal invitation to make such a claim.
(5) The fourth objective is that an entity who does not receive a formal invitation is not to be prevented from making a claim for a payment right.
(1) This clause sets out policy objectives for the DSAP scheme.
Payment rights not to be granted within 30 days after the end of the DSAP claim period
(2) The first objective is that a payment right must not be granted before the end of the 30 - day period beginning at the end of the DSAP claim period.
Initial payment day
(3) The second objective is that there is to be an initial payment day for each payment right, worked out as follows:
(a) if, during the 28 - day period beginning at the end of the 30 - day period mentioned in subclause ( 2), the DAA does not receive a request to reconsider its decision to grant the payment right:
(i) the initial payment day is the first day after the end of that 28 - day period; or
(ii) if that first day is earlier than the DSAP payment start day, the initial payment day is the DSAP payment start day;
(b) if, during the 28 - day period beginning at the end of the 30 - day period mentioned in subclause ( 2), the DAA receives a request to reconsider its decision to grant the payment right:
(i) the initial payment day is the day ascertained in accordance with the scheme; or
(ii) if that day is earlier than the DSAP payment start day, the initial payment day is the DSAP payment start day.
DSAP payments in respect of early quarters
(4) The third objective is that, if an entity is the registered owner of a unit in a payment right on the initial payment day for the payment right, the entity is entitled to be paid, out of the Dairy Structural Adjustment Fund, in relation to that unit, the sum of:
(a) $1 in respect of the quarter in which the initial payment day occurred; and
(b) if there is an earlier quarter in the period:
(i) beginning on 1 July 2000; and
(ii) ending on 30 June 2008;
$1 in respect of that earlier quarter.
DSAP payments in respect of later quarters
(5) The fourth objective is that, if:
(a) an entity is the registered owner of a unit in a payment right on the first day of a quarter in the period:
(i) beginning on the DSAP payment start day; and
(ii) ending on 30 June 2008; and
(b) that quarter is later than the quarter in which the initial payment day for the right occurred;
the entity is entitled to be paid, out of the Dairy Structural Adjustment Fund, in relation to that unit, $1 in respect of that quarter.
When a DSAP payment becomes due to be paid
(6) The fifth objective is that, if an entity is entitled to be paid a DSAP payment, the day on which that payment is due to be paid:
(a) is to be ascertained in accordance with the scheme; and
(b) must not be later than the end of the 10th business day after:
(i) if subclause ( 4) applies--the initial payment day concerned; or
(ii) if subclause ( 5) applies--the first day of the quarter concerned.
DSAP payments are debts
(7) The sixth objective is that, if a DSAP payment is due to be paid to an entity, the payment may be recovered, as a debt due to the entity, by action in a court of competent jurisdiction.
Death of recipient of DSAP payment
(8) The seventh objective is that, if an individual is entitled to receive a DSAP payment and the payment has not been made at the date of the death of the individual, the amount of that payment is payable to the legal personal representative of the individual.
24 Scheme may confer administrative powers on the DAA
The DSAP scheme may make provision with respect to a matter by conferring on the DAA a power to make a decision of an administrative character.
25 Reconsideration and review of decisions
(1) The DSAP scheme must contain provisions under which:
(a) an entity who is affected by a decision of the DAA under the scheme may, if dissatisfied with the decision, by notice given to the DAA within such period as is ascertained in accordance with the scheme, request the DAA to reconsider the decision; and
(b) the DAA is required to reconsider the decision and is empowered to confirm or revoke the decision or to vary the decision in such manner as the DAA thinks fit; and
(c) applications may be made to the Administrative Appeals Tribunal for review of decisions of the DAA that have been confirmed or varied as mentioned in paragraph ( b).
(2) The period mentioned in paragraph ( 1)(a) must be 28 days after the day on which the decision first comes to the attention of the entity concerned.
(3) The DSAP scheme must provide that the reasons for making a request mentioned in paragraph ( 1)(a) must be set out in the request.
(4) If a request is made as mentioned in paragraph ( 1)(a) in respect of a decision, section 41 of the Administrative Appeals Tribunal Act 1975 applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for a review of that decision.
(5) The DSAP scheme must provide that, if the DAA does not confirm, revoke or vary a decision before the end of the period of 60 days after the day on which the DAA received the request to reconsider the decision, the DAA is taken, at the end of that period, to have confirmed the decision.
(6) The DSAP scheme must provide that, if the DAA confirms, revokes or varies the decision before the end of the period referred to in subclause ( 5), the DAA must, by notice given to the applicant, inform the applicant of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be.
(7) If, because of the operation of a provision covered by subclause ( 5), a decision is taken to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period:
(a) commencing on the day on which the decision is taken to have been confirmed; and
(b) ending on the 28th day after that day.
26 Statement to accompany notification of decisions
(1) The DSAP scheme must provide that, if:
(a) written notice is given to an entity affected by a decision of the DAA under the scheme; and
(b) that notice is to the effect that the decision has been made;
that notice must include a statement to the effect that:
(c) the entity may, if dissatisfied with the decision, seek a reconsideration of the decision by the DAA; and
(d) the entity may, subject to the Administrative Appeals Tribunal Act 1975 , if dissatisfied with a decision made by the DAA upon that reconsideration confirming or varying the first - mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision so confirmed or varied.
(2) The DSAP scheme must provide that, if:
(a) the DAA confirms or varies a decision as mentioned in paragraph 25(1)(b); and
(b) gives to the entity written notice of the confirmation or variation of the decision;
that notice must include a statement to the effect that the entity may, subject to the Administrative Appeals Tribunal Act 1975 , if dissatisfied with the decision so confirmed or varied, make application to the Administrative Appeals Tribunal for review of the decision.
(3) A failure to include a statement in a notice as mentioned in subclause ( 1) or (2) does not affect the validity of a decision.
(1) The DSAP scheme may provide for fees.
(2) The amount of a fee under the DSAP scheme must not be such as to amount to taxation.
The DSAP scheme may provide for statements in claims to be verified by statutory declaration.
29 Methods by which DSAP payments may be made
(1) The DSAP scheme may make provision for the methods by which DSAP payments may be made.
(2) The DSAP scheme may require that DSAP payments be made using an electronic funds transfer system.
(3) Subclause ( 2) does not limit subclause ( 1).
30 Adjustment of eligibility for payment rights--transfer of milk delivery rights
(1) The DSAP scheme may make provision for and in relation to the adjustment of eligibility for payment rights in relation to the transfer of the whole or part of market milk delivery rights.
(2) Those provisions may include (but are not limited to):
(a) treating the transferor's dairy farm enterprise, for the purposes of this Part and the scheme, as if the enterprise had delivered a particular volume of manufacturing milk during a particular financial year instead of a particular volume of market milk; and
(b) treating the transferee's dairy farm enterprise, for the purposes of this Part and the scheme, as if the enterprise had delivered a particular volume of market milk during a particular financial year.
(3) In this clause:
"this Part" includes:
(a) the definition of overall enterprise amount in clause 2; and
(b) the definition of premium component in clause 2.
31 Adjustment of eligibility for payment rights--abnormal market milk pool distributions
(1) The DSAP scheme may make provision for and in relation to the adjustment of eligibility for payment rights in relation to a distribution that, under the scheme, is taken to be an abnormal market milk pool distribution.
(2) Those provisions may include (but are not limited to):
(a) treating a particular dairy farm enterprise, for the purposes of this Part and the scheme, as if the enterprise had delivered a particular volume of market milk during a particular financial year instead of a particular volume of manufacturing milk; and
(b) treating a particular dairy farm enterprise, for the purposes of this Part and the scheme, as if the enterprise had delivered a particular volume of manufacturing milk during a particular financial year instead of a particular volume of market milk.
(3) In this clause:
"this Part" includes:
(a) the definition of overall enterprise amount in clause 2; and
(b) the definition of premium component in clause 2.
32 Adjustment of eligibility for payment rights--death
(1) The DSAP scheme may make provision for and in relation to the adjustment of eligibility for payment rights in relation to the death of an individual who held an eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999.
(2) Those provisions may include (but are not limited to) treating the trustee of the deceased individual's estate, for the purposes of this Part and the scheme, as if the trustee had done particular things.
(3) In this clause:
"this Part" includes:
(a) the definition of overall enterprise amount in clause 2; and
(b) the definition of premium component in clause 2.
33 Ancillary or incidental provisions
The DSAP scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.
34 Scheme - making power not limited
Clauses 11 to 33 (inclusive) do not, by implication, limit clause 10.
(1) The DSAP scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 .
(2) Subclause ( 1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.
(3) To avoid doubt, the DSAP scheme may be varied after the end of the period of 14 days beginning on the commencement of this Schedule.
36 Scheme to be a legislative instrument
An instrument under clause 10 is a legislative instrument .
37 Application to things happening before commencement
The use of the present tense in a provision of this Division does not imply that the provision does not apply to things happening before the commencement of this Schedule.
Division 1A -- Supplementary Dairy Assistance (SDA) scheme
The following is a simplified outline of this Division:
• This Division provides a framework for the making of SDA payments.
• The Minister is required to formulate a scheme (the SDA scheme ) for the grant of the following types of payment rights to entities:
(aa) basic market milk payment rights;
(a) additional market milk payment rights;
(b) discretionary payment rights.
• Additional market milk payment rights will be based on market milk deliveries in 1998 - 1999, and will range from 0.12 cents per litre to 12 cents per litre depending on the percentage of market milk deliveries in that year.
• Discretionary payment rights may be granted to entities in the circumstances set out in clause 37G.
• Payment rights will be divided into units, where each unit has a face value of $32.
• Payments will be made to registered owners of units in accordance with the SDA scheme.
The Minister must, by writing, formulate a scheme (the SDA scheme ) for:
(a) the grant of payment rights to entities who satisfy the conditions set out in the scheme; and
(b) the division of payment rights into units; and
(c) the registration of units; and
(d) the making of payments out of the Dairy Structural Adjustment Fund to registered owners of units.
37C General policy objectives for the SDA scheme
The SDA scheme must be directed towards ensuring the achievement of the policy objectives set out in clauses 37D to 37P.
(1) It is a policy objective that there are to be 3 types of payment rights, as follows:
(aa) a type called basic market milk payment rights ;
(a) a type called additional market milk payment rights ;
(b) a type called discretionary payment rights .
(2) It is a policy objective that, if an entity is eligible to be granted a basic market milk payment right and an additional market milk payment right, the entity is eligible to be granted the payment right with the higher face value and is not eligible to be granted the other payment right.
37DA Basic market milk payment rights--eligibility etc.
Basic eligibility criteria
(1) It is a policy objective that an entity is not eligible to be granted a basic market milk payment right unless:
(a) the entity has been granted a payment right under the DSAP scheme in respect of a dairy farm enterprise (the qualifying enterprise ); and
(b) the entity held an interest (of a kind referred to in the SDA scheme) in that enterprise, or in any other dairy farm enterprise, at a time referred to in the SDA scheme; and
(c) the number (the market milk number ) worked out in accordance with the following formula is at least 25.1 (rounding to 1 decimal place and rounding up if the second decimal place is 5 or more):
Note: See also subclause ( 4) for how those delivery numbers are worked out.
Calculation of face value
(2) It is a policy objective that the face value of an entity's basic market milk payment right is to be a share (worked out in accordance with the SDA scheme) of the overall market milk amount for the qualifying enterprise.
Interpretation
(3) For the purposes of this clause, the overall market milk amount for the qualifying enterprise is:
(a) if the market milk number is at least 25.1 and less than 30.1--$10,000; or
(b) if the market milk number is at least 30.1--$15,000.
(4) A reference in this clause to the total number of litres of market milk, or the total number of litres of manufacturing milk, delivered by the qualifying enterprise in the 1998 - 1999 financial year is a reference to that number as determined by the DAA to have taken to have been delivered by that enterprise in that year.
(5) This clause is subject to clause 37V (about the effect of death on eligibility etc. for the grant of payment rights).
37E Additional market milk payment rights--eligibility etc.
Basic eligibility criteria
(1) It is a policy objective that an entity is not eligible to be granted an additional market milk payment right unless:
(a) the entity has been granted a payment right under the DSAP scheme in respect of a dairy farm enterprise (the qualifying enterprise ); and
(b) the entity held an interest (of a kind referred to in the SDA scheme) in that enterprise, or in any other dairy farm enterprise, at a time referred to in the SDA scheme; and
(c) the number (the market milk number ) worked out in accordance with the following formula is at least 35.1 (rounding to 1 decimal place and rounding up if the second decimal place is 5 or more):
Note: See also subclause ( 5) for how those delivery numbers are worked out.
Calculation of face value
(2) It is a policy objective that the face value of an entity's additional market milk payment right is to be a share (worked out in accordance with the SDA scheme) of the overall market milk amount for the qualifying enterprise.
Interpretation
(3) For the purposes of this clause, the overall market milk amount for the qualifying enterprise is the amount worked out in accordance with the following formula:
where:
"relevant cents" means:
(a) if the market milk number is at least 45--12 cents; or
(b) if the market milk number is at least 35.1 and less than 45--the number of cents worked out in accordance with the following formula:
(4) However, if the amount calculated under subclause ( 3) is more than $60,000, then the overall market milk amount for the qualifying enterprise is taken to be $60,000.
(5) A reference in this clause to the total number of litres of market milk, or the total number of litres of manufacturing milk, delivered by the qualifying enterprise in the 1998 - 1999 financial year is a reference to that number as determined by the DAA to have taken to have been delivered by that enterprise in that year.
(6) This clause is subject to clause 37V (about the effect of death on eligibility etc. for the grant of payment rights).
37F Market milk payment rights--offsetting
(1) It is a policy objective that the face value of an entity's basic market milk payment right or additional market milk payment right is to be reduced if:
(a) the entity has been granted a payment right (the DSAP payment right ) under the DSAP scheme; and
(b) the conditions in paragraphs 51(1)(a), (b) and (c) of this Schedule are satisfied (about the DAA having made an error); and
(c) the DAA has been unable to cancel a number of units (the protected units ) in the DSAP payment right because of the operation of subclause 51(2).
(2) It is a policy objective that the amount of the reduction is to be equal to the total face value of the protected units.
(3) If the amount of the reduction would exceed the face value of the entity's basic market milk payment right or additional market milk payment right, then it is a policy objective that the face value of that payment right is to be reduced to zero.
37G Discretionary payment rights--eligibility
(1) It is a policy objective that an entity is not eligible to be granted a discretionary payment right unless the entity satisfies clause 37H or 37J.
(2) This clause is subject to clause 37V (about the effect of death on eligibility etc. for the grant of payment rights).
(1) An entity satisfies this clause if:
(a) the entity held an interest (of a kind referred to in the SDA scheme) in a dairy farm enterprise at any time during the period (the qualifying period ) beginning on 1 July 1998 and ending at 6.30 pm on 28 September 1999; and
(b) the entity is taken, under the SDA scheme, to have been affected by a significant event, a significant crisis or significant anomalous circumstances.
(2) For the purposes of this clause, dairy farm enterprise includes a business in Australia that is carried on with a view to delivering market milk and/or manufacturing milk during the qualifying period, but that did not deliver such milk during that period.
37J Discretionary payment rights--entity suffered a fall in lease income etc.
(1) An entity satisfies this clause if:
(a) the entity was granted a payment right under the DSAP scheme in respect of a lessor interest the entity held in a dairy farm enterprise; and
(b) the entity is not taken, under the SDA scheme, to have been affected by a significant event, a significant crisis or significant anomalous circumstances; and
(c) the entity passes the lease income test.
Cap
(2) It is a policy objective that the total face value of discretionary payment rights, granted in respect of a dairy farm enterprise to entities who satisfy this clause in relation to that enterprise, must not exceed an amount specified in the SDA scheme.
Interpretation
(3) For the purposes of this clause, an entity held a lessor interest in a dairy farm enterprise if:
(a) under the DSAP scheme, the enterprise was taken to be subject to an eligible dairy leasing arrangement; and
(b) under the DSAP scheme, the entity was taken to be a party to that arrangement as the lessor of land.
(4) For the purposes of this clause, an entity passes the lease income test if:
(a) both:
(i) more than 50% of the total gross income derived by the entity in the 1999 - 2000 financial year consisted of eligible lease income; and
(ii) the eligible lease income derived by the entity in the 2000 - 2001 financial year is at least 20% less than the eligible lease income derived by the entity in the 1999 - 2000 financial year; or
(b) both:
(i) more than 50% of the total gross income derived by the entity in the 1999 - 2000, 1998 - 1999 and 1997 - 1998 financial years consisted of eligible lease income; and
(ii) the eligible lease income derived by the entity in the 2000 - 2001 financial year is at least 20% less than the average of the eligible lease income derived by the entity in the 1999 - 2000, 1998 - 1999 and 1997 - 1998 financial years.
(5) For the purposes of this clause, the gross income derived by an entity is to be worked out in accordance with:
(a) generally accepted accounting principles; or
(b) if, under the SDA scheme, the generally accepted accounting principles are taken to be modified for the purposes of the scheme--those principles as so modified.
(6) For the purposes of this clause, eligible lease income has the same meaning as in the SDA scheme.
(1) It is a policy objective that each payment right under the SDA scheme is to be divided into units, where each unit has a face value of $32.
(2) It is a policy objective that the number of units into which a payment right is divided is to be worked out as follows:
(a) divide the number of dollars in the face value of the payment right by 32;
(b) if the result of the division is a whole number--that number is the number of units in the payment right;
(c) if the result of the division is less than 1--there is 1 unit in the payment right;
(d) if the result of the division is greater than 1, but is not a whole number:
(i) round the result of the division up or down to the nearest whole number (rounding up in the case exactly half - way between 2 whole numbers); and
(ii) the rounded number is the number of units in the payment right.
It is a policy objective that a payment right under the SDA scheme is to be granted subject to the powers of cancellation conferred on the DAA under the authority of clauses 50, 51 and 52 .
Note 1: Clause 50 deals with cancellation of units because of the making of a false statement.
Note 2: Clause 51 deals with cancellation of units because of an error made by the DAA.
Note 3: Clause 52 deals with cancellation of units because of a breach of an undertaking to dispose of the units.
It is a policy objective that SDA payments are not to be made in respect of a quarter that is later than the quarter ending on 30 June 2008.
Register
(1) It is a policy objective that the DAA is to include particulars of units in payment rights under the SDA scheme on the register referred to in clause 21.
Registration of ownership
(2) It is a policy objective that an entity's ownership of a unit is not to be counted for the purposes of the SDA scheme unless that ownership is entered on the register.
(3) It is a policy objective that the transfer of the ownership of a unit is not to be registered unless:
(a) the transferee is an eligible entity; or
(b) the transferee gives the DAA a written undertaking to assign the unit to an eligible entity within 60 days after the transfer is registered.
Note: For enforcement of the undertaking, see clause 52.
Registration of charges
(4) It is a policy objective that the SDA scheme may provide for the registration of charges over units.
Inspection of register
(5) It is a policy objective that an entry on the register relating to a unit is to be open for inspection in the following circumstances:
(a) the owner of the unit consents to the entry being open for inspection;
(b) such circumstances as are set out in the SDA scheme.
No declaration of trust in respect of unit
(6) It is a policy objective that:
(a) the owner of a unit must not dispose of a unit by way of declaration of trust; and
(b) if a purported disposal contravenes the rule in paragraph ( a), it is of no effect.
Beneficial interest in unit must not be transferred independently of legal interest
(7) It is a policy objective that:
(a) a beneficial interest in a unit must not be transferred independently of the legal interest in the unit; and
(b) if a purported transfer contravenes the rule in paragraph ( a), it is of no effect.
(8) In this clause:
"eligible entity" means an entity included in a class of entities declared by the SDA scheme to be entities who are eligible to become transferees of units.
(1) It is a policy objective that, in accordance with the SDA scheme, lump sum payments or quarterly payments will be paid to registered owners of units in payment rights under the scheme.
(2) It is a policy objective that, if an SDA payment is due to be paid to an entity, the payment may be recovered, as a debt due to the entity, by action in a court of competent jurisdiction.
(3) It is a policy objective that, if an individual is entitled to receive an SDA payment and the payment has not been made at the date of the death of the individual, the amount of that payment is payable to the legal personal representative of the individual.
37Q Conferral of administrative powers etc.
(1) The SDA scheme may make provision with respect to a matter by conferring on the DAA, or the Minister, a power to make a decision of an administrative character.
(2) If the SDA scheme confers on the Minister a power to make a decision of an administrative character, the scheme may also make provision for and in relation to the Minister delegating that power to the DAA.
(1) The SDA scheme must contain provisions for and in relation to the review of decisions of the DAA, or the Minister, under the scheme that affect an entity.
(2) Those provisions must provide for review by the Administrative Appeals Tribunal.
(3) Subclause ( 2) does not limit subclause ( 1).
(1) The SDA scheme may provide for fees.
(2) The amount of a fee under the SDA scheme must not be such as to amount to taxation.
The SDA scheme may provide for statements in claims to be verified by statutory declaration.
37U Methods by which SDA payments may be made
(1) The SDA scheme may make provision for the methods by which SDA payments may be made.
(2) The SDA scheme may require that SDA payments be made using an electronic funds transfer system.
(3) Subclause ( 2) does not limit subclause ( 1).
37V Adjustment of eligibility for payment rights etc.--death
The SDA scheme may make provision for and in relation to the adjustment of:
(a) eligibility for the grant of payment rights under the scheme; and
(b) the calculation of the face value of payment rights under the scheme;
in relation to the death of an individual who would have otherwise been eligible to be granted a payment right under the SDA scheme.
Note: For example, the SDA scheme may contain provisions setting out the eligibility of the trustee of the deceased estate, or of one or more beneficiaries in the estate, to be granted a payment right under the scheme and setting out the calculation of the face value of that right.
37W Ancillary or incidental provisions
The SDA scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.
37X Scheme - making power not limited
Clauses 37C to 37W do not, by implication, limit clause 37B.
(1) The SDA scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 .
(2) Subclause ( 1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.
37Z Scheme to be a legislative instrument
An instrument under clause 37B is a legislative instrument .
37ZA Application to things happening before commencement
The use of the present tense in a provision of this Division does not imply that the provision does not apply to things happening before the commencement of this Division.
37ZB Use and disclosure of information obtained under the DSAP scheme
(1) An APP entity that holds a record that contains personal information that was obtained for the purposes of the administration of the DSAP scheme may use the information, or disclose the information to a person, body or agency, for the purposes of the administration of the SDA scheme.
(2) Unless the contrary intention appears, an expression used in this clause has the same meaning as in the Privacy Act 1988 .
Division 2 -- Information - gathering powers
38 DAA may obtain information and documents
(1) This clause applies to a person if the DAA has reason to believe that the entity:
(a) has information or a document that is relevant to the operation of the DSAP scheme or the SDA scheme; or
(b) is capable of giving evidence which the DAA has reason to believe is relevant to the operation of the DSAP scheme or the SDA scheme.
(2) The DAA may, by written notice given to the person, require the person:
(a) to give to the DAA, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the DAA, within the period and in the manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the DAA, within the period and in the manner specified in the notice, those copies; or
(d) if the person is an individual--to appear before the DAA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or
(e) if the person is a body corporate--to cause a competent officer of the body to appear before the DAA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
(3) A period specified under paragraph ( 2)(a), (b) or (c) must not be shorter than 14 days after the notice is given.
(4) A time specified under paragraph ( 2)(d) or (e) must be at least 14 days after the notice is given.
(5) A person commits an offence if:
(a) the person has been given a notice under subclause ( 2); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes a requirement in the notice.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6) A notice under subclause ( 2) must set out the effect of the following provisions:
(a) subclause ( 5);
(b) clause 133;
(c) section 136.1 of the Criminal Code ;
(d) section 137.1 of the Criminal Code ;
(e) section 137.2 of the Criminal Code .
39 Copying documents--reasonable compensation
A person is entitled to be paid reasonable compensation for complying with a requirement covered by paragraph 38(2)(c).
(1) An individual is not excused from giving information or evidence or producing a document or a copy of a document under this Division on the ground that the information or evidence or the production of the document or copy might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) giving the information or evidence or producing the document or copy; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or evidence or producing the document or copy;
is not admissible in evidence against the individual in criminal proceedings other than:
(c) proceedings for an offence against subclause 38(5) or clause 133; or
(d) proceedings for an offence against section 136.1, 137.1 or 137.2 of the Criminal Code that relates to this Division.
(1) The DAA may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document.
(2) The DAA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 38(2)(c).
(1) The DAA may take, and retain for as long as is necessary, possession of a document produced under this Division.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the DAA to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the DAA must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of, or taking extracts from, the document.
Division 3 -- Protection of confidentiality of information
43 Protection of confidentiality of information
(1) This clause restricts what a person (the entrusted person ) may do with protected information, or protected documents, that the person has obtained in the course of official employment.
(2) The entrusted person:
(a) must not make a record of protected information; and
(b) must not disclose it to anyone else;
if the recording or disclosure is not in accordance with subclause ( 3).
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) It is not an offence against subclause ( 2) if any of the following apply to the recording or disclosure:
(a) the recording or disclosure is for the purposes of this Part, the DSAP scheme or the SDA scheme or is otherwise required by any law of the Commonwealth;
(b) the recording or disclosure happens in the course of the performance of the duties of the entrusted person's official employment;
(c) the disclosure is not likely to enable the identification of a particular entity;
(d) both:
(i) the disclosure is to an entity who had an eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999; and
(ii) the information relates to that enterprise.
Note: A defendant bears an evidential burden in relation to a matter in paragraph ( 3)(a) or (b) --see subsection 13.3(3) of the Criminal Code .
(4) Despite subsection 13.3(3) of the Criminal Code , the defendant does not bear an evidential burden in relation to a matter in paragraph ( 3)(c) or (d) of this clause.
(5) Unless it is necessary for the purposes of this Part, the DSAP scheme or the SDA scheme, the entrusted person is not to be required:
(a) to produce any protected document to a court; or
(b) to disclose protected information to a court.
(6) In this clause:
"disclose" means divulge or communicate.
"official employment" means:
(a) service as a DAA member; or
(b) the performance of services for the DAA; or
(c) the exercise of powers or performance of functions under a delegation by the DAA.
"protected document" means any document made or given under, or for the purposes of, this Part, the DSAP scheme or the SDA scheme.
"protected information" means information that meets all the following conditions:
(a) it relates to the affairs of a person other than the entrusted person;
(b) it was obtained by the entrusted person, or by any other person, in the course of official employment;
(c) it was disclosed or obtained for the purposes of this Part, the DSAP scheme or the SDA scheme.
"this Part" includes any other provision of this Schedule in so far as that other provision relates to this Part.
Division 4 -- Recovery of scheme debts
For the purposes of this Division, a scheme debt is so much of an amount paid, or purportedly paid, to an entity by way of a DSAP payment or an SDA payment as represents an overpayment.
45 Scheme debts are debts due to the industry services body
A scheme debt is a debt due to the industry services body.
46 Recovery by legal proceedings
(1) A scheme debt may be recovered by the DAA, on behalf of the industry services body, by action in a court of competent jurisdiction.
(2) An action under subclause ( 1) may be instituted by the DAA in its official name.
If an entity is liable to pay a scheme debt, the scheme debt may be deducted from one or more DSAP payments or SDA payments that are payable to the entity, and if the scheme debt is so deducted, the DSAP payment or SDA payment (as the case may be) is taken to have been paid in full to the entity.
48 Industry services body may collect money from a person who owes money to an entity
What this clause does
(1) This clause allows for the collection of money from a person who owes money to an entity that has a scheme debt.
The DAA may give direction
(2) The DAA may direct a person (the third party ) who owes, or may later owe, money (the available money ) to the entity to pay some or all of the available money to the industry services body in accordance with the direction. The DAA must give a copy of the direction to the entity.
Limit on directions
(3) The direction cannot require an amount to be paid to the industry services body at a time before it becomes owing by the third party to the entity.
Third party to comply
(4) The third party must comply with the direction.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5) The third party does not commit an offence against subclause ( 4) if the third party complies with the direction so far as the third party is able to do so.
Note: A defendant bears an evidential burden in relation to the matter in subclause ( 5). See subsection 13.3(3) of the Criminal Code .
Court orders
(6) If a person is convicted of an offence in relation to a refusal or failure of the third party to comply with subclause ( 4), the court may (in addition to imposing a penalty on the convicted person) order the convicted person to pay to the industry services body an amount up to the amount involved in the refusal or failure of the third party.
Indemnity
(7) Any payment made by the third party under this clause is taken to have been made with the authority of the entity and of all other persons concerned, and the third party is indemnified for the payment.
Notice
(8) If the whole of the scheme debt of the entity is discharged before any payment is made by the third party, the DAA must immediately give notice to the third party of that fact.
(9) If a part of the scheme debt of the entity is discharged before any payment is made by the third party, the DAA must:
(a) immediately give notice to the third party of that fact; and
(b) make an appropriate variation to the direction; and
(c) give a copy of the varied direction to the entity.
When third party is taken to owe money
(10) The third party is taken to owe money to the entity if:
(a) money is due or accruing by the third party to the entity; or
(b) the third party holds money for or on account of the entity; or
(c) the third party holds money on account of some other person for payment to the entity; or
(d) the third party has authority from some other person to pay money to the entity;
whether or not the payment of the money to the entity is dependent on a pre - condition that has not been fulfilled.
49 Penalty for unpaid scheme debts
(1) If an amount of a scheme debt that is payable by an entity remains unpaid after the day by which it must be paid, the entity is liable to a penalty at the rate of 16% per year on the unpaid amount.
(2) The penalty is calculated from the day on which the amount becomes due to be paid.
(3) The fact that a judgment is entered or given in a court for the payment of an amount of a scheme debt, or of a composite amount that includes an amount of a scheme debt, does not of itself cause the amount of a scheme debt to stop being unpaid for the purposes of this clause.
(4) If the judgment debt bears interest, the penalty payable under this clause is reduced (but not beyond nil) by the following amount:
where:
"scheme debt component" means so much of the judgment debt as consists of a scheme debt.
(5) For the purposes of this clause, the day on which a scheme debt is due to be paid is the day on which the DSAP payment or SDA payment concerned was paid.
(6) This clause does not apply to a scheme debt that is attributable (in whole or in part) to an error made by the DAA or the industry services body, where the DSAP payment or SDA payment concerned was received in good faith.
(7) The DSAP scheme or the SDA scheme (as the case may be) must empower the DAA to remit the whole or a part of an amount of penalty payable under this clause.
(8) A penalty payable under this clause may be recovered by the Commonwealth as a debt to the Commonwealth.
(9) This clause has no effect to the extent (if any) to which it imposes taxation (within the meaning of section 55 of the Constitution).
Division 5 -- Cancellation of units
50 Cancellation of units because of the making of a false statement
(1) If:
(a) before a payment right was granted, an entity made a false statement to a person who was exercising powers, or performing functions, under or in connection with this Part, the DSAP scheme or the SDA scheme; and
(b) either:
(i) the payment right was granted because of the making of the false statement; or
(ii) as a result of the making of the false statement, the face value of the payment right exceeds the proper amount of the face value;
the DSAP scheme or the SDA scheme (as the case may be) must authorise the DAA to:
(c) if subparagraph ( b)(i) applies--cancel all of the units in the payment right; or
(d) if subparagraph ( b)(ii) applies--cancel the number of units in the payment right worked out by:
(i) dividing the number of whole dollars in the amount of the excess by 32; and
(ii) if the result of the division is not a whole number--rounding down the result to the nearest whole number (treating zero as a whole number).
(2) If a unit is cancelled as authorised under this clause, this Schedule and the DSAP scheme or the SDA scheme (as the case may be) have, and are taken always to have had, effect as if the unit was never in existence.
Note: This may result in an overpayment. For recovery of overpayments, see Division 4.
(3) In this clause:
"false statement" means a statement (whether made orally, in a document or in any other way) that:
(a) is false or misleading in a material particular; or
(b) omits any matter or thing without which the statement is misleading in a material particular.
51 Cancellation of units because of an error made by the DAA
(1) If:
(a) the DAA made an error in relation to the grant of a payment right; and
(b) clause 50 does not apply; and
(c) either:
(i) the payment right would not have been granted if the DAA had not made that error; or
(ii) the face value of the payment right exceeds the amount that would have been the amount of the face value if the DAA had not made that error;
the DSAP scheme or the SDA scheme (as the case may be) must authorise the DAA to:
(d) if subparagraph ( c)(i) applies--cancel all of the units in the payment right; or
(e) if subparagraph ( c)(ii) applies--cancel the number of units in the payment right worked out by:
(i) dividing the number of whole dollars in the amount of the excess by 32; and
(ii) if the result of the division is not a whole number--rounding down the result to the nearest whole number (treating zero as a whole number).
(2) The DSAP scheme or the SDA scheme (as the case may be) may provide that the DAA is not to cancel a unit as authorised under this clause if the DAA is satisfied that the entity, or each of the entities, who received a DSAP payment or an SDA payment in respect of the unit acted in good faith.
(3) If a unit is cancelled as authorised under this clause, this Schedule and the DSAP scheme or the SDA scheme (as the case may be) have, and are taken always to have had, effect as if the unit was never in existence.
Note: This may result in an overpayment. For recovery of overpayments, see Division 4.
52 Cancellation of unit because of a breach of an undertaking to assign the unit
DSAP scheme
(1) If:
(a) an entity (the first entity ) has given the DAA an undertaking to assign a unit in a payment right under the DSAP scheme to an eligible entity as mentioned in paragraph 21(4)(b); and
(b) the first entity breaches the undertaking; and
(c) the DAA gives the first entity a written notice directing the first entity to comply with the undertaking before the end of the period of 60 days beginning when the direction is given; and
(d) the first entity contravenes the direction;
the DSAP scheme must authorise the DAA to cancel the unit.
(1A) For the purposes of subclause ( 1), eligible entity has the same meaning as in clause 21.
SDA scheme
(1B) If:
(a) an entity (the first entity ) has given the DAA an undertaking to assign a unit in a payment right under the SDA scheme to an eligible entity as mentioned in paragraph 37N(3)(b); and
(b) the first entity breaches the undertaking; and
(c) the DAA gives the first entity a written notice directing the first entity to comply with the undertaking before the end of the period of 60 days beginning when the direction is given; and
(d) the first entity contravenes the direction;
the SDA scheme must authorise the DAA to cancel the unit.
(1C) For the purposes of subclause ( 1B), eligible entity has the same meaning as in clause 37N.
When cancellation takes effect
(2) The cancellation of a unit as authorised under this clause takes effect at the end of that 60 - day period.
54 Limit on cancellation or variation
A payment right or a unit must not be cancelled or varied otherwise than as authorised under this Part.
Division 6 -- Dairy Adjustment Authority
(1) The Dairy Adjustment Authority is established.
(2) The Minister may, by legislative instrument, declare that the Dairy Adjustment Authority ceases to exist immediately after a specified day.
(3) A declaration under subclause ( 2) has effect accordingly.
The DAA has the following functions:
(a) such functions as are conferred on the DAA by or under:
(i) the DSAP scheme or the SDA scheme; or
(ii) this Schedule; or
(iii) any other law of the Commonwealth;
(b) to do anything incidental to or conducive to the performance of any of the above functions.
(1) The DAA has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2) The powers of the DAA under this clause include (but are not limited to) the power to enter into contracts and agreements on behalf of the Commonwealth.
(1) The Minister may, by notice published in the Gazette , declare that a specified time is the first DAA phase - down time for the purposes of this Division.
Note: The effect of the notice is to reduce the number of DAA members from 5 to 2--see clause 59.
(2) The Minister may, by notice published in the Gazette , declare that a specified time is the second DAA phase - down time for the purposes of this Division. The specified time must be after the first DAA phase - down time.
Note: The effect of the notice is to reduce the number of DAA members from 2 to 1--see clause 59.
(3) A declaration under subclause ( 1) or (2) has effect accordingly.
Before the first DAA phase - down time
(1) Before the first DAA phase - down time, the DAA consists of the following members:
(a) a Chair;
(b) 2 industry members;
(c) a government member;
(d) one other member.
Between the first DAA phase - down time and the second DAA phase - down time
(2) During the period:
(a) beginning at the first DAA phase - down time; and
(b) ending at the second DAA phase - down time;
the DAA consists of the following members:
(c) a Chair;
(d) one other member.
(3) A person who held office as a DAA member immediately before the first DAA phase - down time is taken to vacate that office at that time. However, this subclause does not prevent the person from being re - appointed with effect from the first DAA phase - down time.
After the second DAA phase - down time
(4) After the second DAA phase - down time, the DAA consists of a single member.
(5) If, after the second DAA phase - down time, there is no ordinary member of the DAA who holds office under subclause ( 4), the Secretary holds that office.
(6) A person who held office as a DAA member immediately before the second DAA phase - down time is taken to vacate that office at that time. However, this subclause does not prevent the person from being re - appointed with effect from the second DAA phase - down time.
60 Qualifications of DAA members
(1) A person is not to be appointed as:
(a) the DAA Chair; or
(b) the DAA member referred to in paragraph 59(1)(d);
unless it appears to the Minister that the person has knowledge of, or experience in, one or more of the following fields:
(c) business management;
(d) finance;
(e) legal practice;
(f) actuarial practice.
(2) A person is not to be appointed as an industry member unless it appears to the Minister that the person has knowledge of, or experience in, the production of dairy produce.
(3) A person is not to be appointed as the government member unless it appears to the Minister that the person has knowledge of, or experience in, either or both of the following fields:
(a) the formulation of government policy;
(b) public administration.
(1) The ordinary DAA members are to be appointed by the Minister by written instrument.
(2) An ordinary DAA member is to be appointed for the period specified in the instrument of appointment.
(3) An ordinary DAA member holds office on a part - time basis.
(4) The performance of the functions of the DAA is not affected only because of there being a vacancy or vacancies in the membership of the DAA.
(5) The performance of the functions of the DAA is not affected only because of the reconstitution of the DAA at the first DAA phase - down time or the second DAA phase - down time.
(1) The regulations may prescribe:
(a) the manner in which the DAA is to perform its functions; and
(b) the procedure to be followed at or in relation to meetings of the DAA, including matters with respect to the following:
(i) the convening of meetings of the DAA;
(ii) the number of DAA members who are to constitute a quorum;
(iii) the selection of a DAA member to preside at meetings of the DAA in the absence of the DAA Chair; and
(iv) the manner in which questions arising at a meeting of the DAA are to be decided.
(2) A resolution is taken to have been passed at a meeting of the DAA if:
(a) without meeting, a majority of DAA members indicate agreement with the resolution in accordance with the method determined by the DAA under subclause ( 3); and
(b) all DAA members were informed of the proposed resolution, or reasonable efforts had been made to inform all DAA members of the proposed resolution.
(3) Subclause ( 2) applies only if the DAA:
(a) determines that it applies; and
(b) determines the method by which DAA members are to indicate agreement with resolutions.
(4) This clause does not apply after the second DAA phase - down time.
63 Disclosure of interests before the second DAA phase - down time
(1) An ordinary DAA member who has a material personal interest in a matter being considered by the DAA must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the DAA.
(2) The disclosure is to be recorded in the minutes of the meeting and unless the Minister or the DAA otherwise determines, the DAA member must not:
(a) be present during any deliberation by the DAA about that matter; or
(b) take part in any decision of the DAA relating to that matter.
(3) For the purposes of the making of a determination by the DAA under subclause ( 2) in relation to a DAA member who has made a disclosure under subclause ( 1), a DAA member who has an interest in the matter to which the disclosure relates must not:
(a) be present during any deliberation of the DAA for the purposes of making the determination; or
(b) take part in the making by the DAA of the determination.
(4) This clause does not apply after the second DAA phase - down time.
64 Disclosure of interests after the second DAA phase - down time
DAA to notify business interests to Minister
(1) The DAA must give written notice to the Minister of all material personal interests that the DAA has or acquires in any business, or in any body corporate carrying on a business.
DAA to notify potential conflict of interest to Minister
(2) If the DAA has a material personal interest in a matter being considered or about to be considered by the DAA, the DAA must:
(a) give written notice to the Minister of that interest; and
(b) take no further action on the matter before:
(i) the end of 28 days after the date on which the Minister receives the notice; or
(ii) the date on which written advice of a decision of the Minister under subclause ( 4) is given in relation to the matter;
whichever first occurs.
Minister may direct DAA to delegate
(3) If:
(a) the DAA has a material personal interest in a matter being considered or about to be considered by the DAA; and
(b) the Minister considers that the interest could conflict with the proper performance of the DAA's functions in relation to that matter;
then:
(c) the Minister must give the DAA a written notice directing the DAA:
(i) not to deal with the matter personally; and
(ii) to delegate the DAA's functions and powers in relation to that matter to a specified person under clause 73; and
(iii) not to delegate the DAA's functions and powers in relation to that matter to any other person; and
(d) the DAA must comply with the direction.
Minister may allow DAA to deal with matter personally
(4) If:
(a) the DAA has a material personal interest in a matter being considered or about to be considered by the DAA; and
(b) the Minister does not consider that the interest could conflict with the proper performance of the DAA's functions in relation to that matter;
the Minister may give the DAA a written notice stating that the Minister has no objection to the DAA dealing with the matter personally.
Minister's direction to be given within 28 days of notification of DAA's interest
(5) If:
(a) the DAA has a material personal interest in a matter being considered or about to be considered by the DAA; and
(b) the Minister considers that the interest could conflict with the proper performance of the DAA's functions in relation to that matter; and
(c) the DAA gives written notice to the Minister of that interest under subclause ( 2);
a direction under subclause ( 3) in relation to that matter has no effect unless it is given before the end of 28 days after the date on which the Minister receives the notice.
Application
(6) This clause does not apply before the second DAA phase - down time.
65 Remuneration and allowances
(1) An ordinary DAA member is to be paid such remuneration as is determined by the Remuneration Tribunal.
(2) If no determination of that remuneration is in operation, a DAA member is to be paid such remuneration as is prescribed.
(3) An ordinary DAA member is to be paid such allowances as are prescribed.
(4) This clause has effect subject to the Remuneration Tribunal Act 1973 .
(1) The Minister or the DAA Chair may grant leave to an ordinary DAA member to be absent from a meeting or meetings of the DAA.
(2) This clause does not apply after the second DAA phase - down time.
An ordinary DAA member may resign by writing signed by the member and sent to the Minister.
(1) The Minister may terminate an ordinary DAA member's appointment if the Minister is of the opinion that the member's performance has been unsatisfactory.
(2) The Minister may terminate the appointments of all of the ordinary DAA members if the Minister is of the opinion that the DAA's performance has been unsatisfactory.
(3) The Minister may terminate the appointment of an ordinary DAA member because of misbehaviour or physical or mental incapacity.
(4) If:
(a) an ordinary DAA member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or
(b) an ordinary DAA member is absent, except on leave of absence, from 3 consecutive meetings of the DAA; or
(c) an ordinary DAA member fails, without reasonable excuse, to comply with clause 63 or 64;
the Minister may terminate the appointment of the member.
(5) The Minister may at any time terminate the appointment of the government member of the DAA.
(6) The Minister may at any time terminate the appointment of an ordinary DAA member who holds office under subclause 59(4).
Note: Subclause 59(4) deals with the ordinary DAA member who holds office after the second DAA phase - down time.
An ordinary DAA member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister.
70 Industry services body must provide assistance to DAA
(1) The industry services body must, if requested to do so by the DAA, make available to the DAA reasonable resources and facilities (including secretariat services, clerical assistance and computer resources) for the purposes of enabling the DAA to perform its functions.
(2) If the services of an employee of the industry services body are made available to the DAA under subclause ( 1), the employee is not subject to the direction of the industry services body in relation to the provision of those services.
(3) Subclause ( 1) does not, by implication, prevent the DAA from obtaining resources and facilities otherwise than from the industry services body.
(1) The DAA may, on behalf of the Commonwealth, engage persons to give advice to, and perform services for, the DAA.
(2) The terms and conditions of engagement are as determined by the DAA.
72 Delegation by DAA--before second DAA phase - down time
(1) The DAA may, by resolution, delegate to:
(a) a DAA member; or
(b) a senior employee of the industry services body;
all or any of the DAA's functions and powers.
(2) A delegation of a function or power under this clause:
(a) may be revoked by resolution of the DAA (whether or not constituted by the persons constituting the DAA at the time when the function or power was delegated); and
(b) continues in force notwithstanding a change in the membership of the DAA.
(3) Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this clause as if the DAA were a person.
(4) A certificate signed by the DAA Chair stating any matter with respect to a delegation of a function or power under this clause is prima facie evidence of that matter.
(5) A document purporting to be a certificate mentioned in subclause ( 4) is, unless the contrary is established, taken to be such a certificate and to have been duly given.
(6) A delegate under this clause is, in the exercise of a function or power delegated under this clause, subject to any directions given by the DAA.
(7) A reference in this clause to a senior employee of the industry services body is a reference to a person who:
(a) is an employee of the industry services body; and
(b) holds or performs the duties of a position of General Manager.
(8) This clause does not apply after the second DAA phase - down time.
73 Delegation by DAA--after second DAA phase - down time
(1) The DAA may, by writing, delegate to an SES employee or acting SES employee all or any of the DAA's functions and powers.
(2) A delegate under this clause is, in the exercise of a function or power delegated under this clause, subject to any directions given by the DAA.
(3) This clause does not apply before the second DAA phase - down time.
(1) The DAA must, as soon as practicable after the end of each financial year:
(a) prepare a report on its operations during that financial year; and
(b) give the report to the Minister.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sittings days of that House after the day on which the Minister receives the report.
(3) This clause does not apply in relation to a financial year if:
(a) the financial year is earlier than the 2000 - 2001 financial year; or
(b) the Secretary was the sole member of the DAA throughout the financial year.
75 DSAP and SDA payments taken to be subsidies for the purposes of section 15 - 10 of the Income Tax Assessment Act 1997
To avoid doubt, for the purposes of section 15 - 10 of the Income Tax Assessment Act 1997 , a DSAP payment or an SDA payment received by an entity is taken to be a subsidy received by the entity in relation to carrying on a business.
Note: Section 15 - 10 of the Income Tax Assessment Act 1997 provides that an entity's assessable income includes a subsidy received in relation to carrying on a business.
Part 3 -- Dairy Structural Adjustment Fund
77 Establishment of the Dairy Structural Adjustment Fund
(1) A fund to be known as the Dairy Structural Adjustment Fund is established.
77A The industry services body to keep the Dairy Structural Adjustment Fund
(1) The industry services body must keep and administer the Dairy Structural Adjustment Fund.
(2) The assets of the Dairy Structural Adjustment Fund are the property of the industry services body, but must be kept separate from all other property and must be held on trust by the body for the purposes of this Part.
(3) No stamp duty or other tax is payable under a law of a State or Territory in respect of the operation of subclause ( 2).
77AA Winding up the Dairy Structural Adjustment Fund
(1) The Minister may, by written notice, specify a day or days on which there is to be paid to the Commonwealth an amount specified in the notice and standing, at the beginning of that day, to the credit of the Dairy Structural Adjustment Fund.
(2) The amount specified in the notice and standing to the credit of the Dairy Structural Adjustment Fund at the beginning of the day specified in the notice is to be paid to the Commonwealth.
(3) If no amount is standing to the credit of the Dairy Structural Adjustment Fund immediately after the time an amount has been paid under subclause ( 2), that Fund is taken to be wound up immediately after that time.
(4) A notice made under subclause ( 1) is not a legislative instrument.
77B What the Dairy Structural Adjustment Fund consists of
The Dairy Structural Adjustment Fund consists of the following:
(a) money credited to the Fund under clause 78;
(b) investments the industry services body has as a result of investing money in the Fund under clause 79B;
(c) all other money and property lawfully paid into, or forming part of, the Fund.
77C Power to borrow or raise money for the purposes of the Dairy Structural Adjustment Fund
(1) The industry services body may:
(a) borrow money; or
(b) raise money otherwise than by borrowing;
for the purpose of making payments for which money of the Dairy Structural Adjustment Fund may be expended.
Note: The meaning of raise money otherwise than by borrowing is affected by clause 77CC.
(2) The industry services body may give security, including over the assets of the Dairy Structural Adjustment Fund, in respect of the body's obligations in relation to a borrowing or other raising of money under subclause ( 1).
77CA Borrowing or raising money by dealing in securities
(1) Without limiting subclause 77C(1), the industry services body may, under that subclause, borrow money, or raise money otherwise than by borrowing, by dealing with securities.
(2) In this clause:
"dealing with securities" includes:
(a) creating, executing, entering into, drawing, making, accepting, endorsing, issuing, discounting, selling, purchasing or re - selling securities; and
(b) creating, selling, purchasing or re - selling rights or options in respect of securities; and
(c) entering into agreements or other arrangements relating to securities.
"securities" includes stocks, debentures, debenture stocks, notes, bonds, promissory notes, bills of exchange and similar instruments or documents.
77CB Hedging through currency contracts etc.
(1) This clause applies to the following contracts:
(a) currency contracts;
(b) interest rate contracts;
(c) futures contracts;
(d) contracts relating to:
(i) dealings known as currency swaps; or
(ii) dealings known as interest rate swaps;
(e) contracts relating to both of the dealings referred to in paragraph ( d);
(f) options (including futures options).
(2) The industry services body may enter into and deal with contracts to which this clause applies for hedging purposes in relation to a borrowing or raising, or a proposed borrowing or raising, of money under subclause 77C(1).
(3) A contract is taken to be entered into or dealt with for hedging purposes only if the contract is entered into or dealt with for the purpose of managing the risk of variations in the costs of a borrowing or raising, or a proposed borrowing or raising, of money under subclause 77C(1).
(4) In this clause:
"currency contract means" :
(a) a forward exchange rate contract; or
(b) a contract with respect to currency futures.
"futures contract means" :
(a) a deferred delivery contract; or
(b) a contract with respect to financial futures; or
(c) a contract with respect to commodity futures.
77CC Obtaining credit etc. taken to be raising of an amount of money, otherwise than by borrowing
(1) This clause applies if the industry services body:
(a) does a thing mentioned in the table in subclause ( 2); and
(b) does not do that thing in relation to a transaction that is in the ordinary course of its day - to - day operations.
(2) By doing that thing, the industry services body is taken, for the purposes of this Part and subclause 94(2), to raise the relevant amount of money mentioned in the following table, otherwise than by borrowing:
Circumstances where the industry services body is taken to raise an amount of money, otherwise than by borrowing | ||
Item | If the industry services body... | by doing so, it is taken to raise this amount of money, otherwise than by borrowing... |
1 | issues an instrument acknowledging a debt in consideration of the payment or deposit of money | the amount of the money paid or deposited |
2 | issues an instrument acknowledging a debt in consideration of the provision of credit | the value of the credit provided |
3 | obtains credit | the value of the credit obtained |
77D Funding contract may include provisions relating to the Dairy Structural Adjustment Fund
A funding contract with the industry services body may include provisions relating to the Dairy Structural Adjustment Fund. This clause does not impliedly limit the matters that may be included in the contract.
78 Money to be paid into the Dairy Structural Adjustment Fund
The following money is to be credited to the Dairy Structural Adjustment Fund:
(a) money paid to the industry services body under clause 83 (which deals with dairy adjustment levy);
(b) money paid to the industry services body under clause 84 (which deals with fees under the DSAP scheme or the SDA scheme);
(c) money paid to the industry services body under clause 85 (which deals with civil penalties relating to the DSAP scheme or the SDA scheme);
(d) money paid to the industry services body by way of the recovery of a scheme debt (within the meaning of clause 44);
(e) money paid to the industry services body under clause 48 (which deals with the collection of money from a person who owes money to an entity that has a scheme debt);
(g) money received by the industry services body as interest or profits from the investment of money standing to the credit of the Dairy Structural Adjustment Fund;
(h) money borrowed or otherwise raised by the industry services body for the purpose of making payments for which money of the Dairy Structural Adjustment Fund may be expended;
(ha) money received by the industry services body in respect of contracts entered into or dealt with by it under clause 77CB;
(i) money paid to the industry services body for the purposes of the Dairy Structural Adjustment Fund.
79 Application of the Dairy Structural Adjustment Fund
Money standing to the credit of the Dairy Structural Adjustment Fund is to be expended:
(a) in making DSAP payments; and
(aa) in making SDA payments; and
(b) in making dairy exit payments; and
(c) in reimbursing or meeting the expenses of the Commonwealth or the industry services body incurred (whether before or after the commencement of this clause) in relation to the development and implementation of the measures that from time to time form part of the Dairy Industry Adjustment Package; and
(e) in meeting the expenses of the Commonwealth incurred in relation to:
(i) the collection and recovery of amounts referred to in clause 83 (which deals with dairy adjustment levy); or
(ii) the administration of clause 83; and
(f) in payment of any remuneration and allowances of ordinary DAA members; and
(g) in meeting the expenses of the industry services body incurred in making available to the DAA resources and facilities as mentioned in subclause 70(1); and
(h) in meeting the expenses incurred by the Commonwealth in relation to the engagement of persons under clause 71 (which deals with consultants to the DAA); and
(i) in meeting any other expenses incurred by the Commonwealth in relation to:
(i) the administration of this Schedule, the DSAP scheme or the SDA scheme; or
(ii) the performance of the functions, or the exercise of the powers, of the DAA; and
(ia) in meeting the expenses incurred by the Commonwealth in relation to the termination of the program known as the Dairy Industry Adjustment Program; and
(l) in meeting the expenses of the industry services body incurred in administering the Dairy Structural Adjustment Fund; and
(m) in repaying money borrowed or otherwise raised for the purpose of making payments for which money of the Dairy Structural Adjustment Fund may be expended; and
(n) in meeting the expenses of the industry services body incurred in borrowing or otherwise raising money for the purpose of making payments for which money of the Dairy Structural Adjustment Fund may be expended; and
(na) in meeting the obligations and liabilities of the industry services body in respect of contracts entered into or dealt with by it under clause 77CB; and
(nb) in meeting the expenses of the industry services body incurred in respect of contracts entered into or dealt with by it under clause 77CB; and
(nc) in payment of amounts relating to the indemnity mentioned in clause 86A; and
(o) in reimbursing the Commonwealth for amounts that are refunded under clause 124 (which deals with dairy adjustment levy); and
(p) in reimbursing the Commonwealth for amounts that are refunded under regulations made for the purposes of clause 125 (which deals with dairy adjustment levy); and
(q) in making payments under the Dairy Regional Assistance Programme; and
(r) in meeting the expenses of the Commonwealth incurred in relation to the administration of the Dairy Regional Assistance Programme.
Note: For the Dairy Regional Assistance Programme, see clause 86.
(1) Money in the Dairy Structural Adjustment Fund must:
(a) until applied for the purposes of this Part; or
(b) until invested under clause 79B;
be kept by the industry services body in an account or accounts with an Australian ADI separate from any account or accounts in which other money is kept.
(2) In this clause:
"Australian ADI" means:
(a) an ADI (authorised deposit - taking institution) within the meaning of the Banking Act 1959 ; or
(aa) the Reserve Bank of Australia ; or
(b) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
79B Money in Dairy Structural Adjustment Fund may be invested
Money in the Dairy Structural Adjustment Fund that is not immediately required for the purposes of this Part may be invested in any way in which trustees are for the time being authorised by a law in force in a State or Territory to invest trust funds.
(1) The industry services body must, as soon as practicable after 30 June in each year, prepare and give to the Minister a report on the administration of the Dairy Structural Adjustment Fund during the year that ended on that 30 June.
(2) The Minister must cause a copy of each report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
80 Solvency of the Dairy Structural Adjustment Fund
The industry services body and the Minister must take all reasonable steps to ensure that there is sufficient money in the Dairy Structural Adjustment Fund to:
(a) make DSAP payments and SDA payments as they fall due; and
(b) meet any other calls on that Fund as those calls fall due.
83 Payment of dairy adjustment levy to the industry services body
(1) The Commonwealth must pay to the industry services body an amount equal to each amount received by the Commonwealth by way of:
(a) dairy adjustment levy; or
(b) penalty payable under clause 107.
(2) The Commonwealth must pay to the industry services body an amount equal to each amount of dairy adjustment levy notionally received by the Commonwealth under clause 131.
(3) The Consolidated Revenue Fund is appropriated for the purposes of subclauses ( 1) and (2).
(3A) The Minister may, by legislative instrument, declare that subclauses ( 1) and (2) do not apply to any amount received by the Commonwealth after the day specified in the instrument. The day specified must not be earlier than the day declared for the purposes of subclause 94(1).
(4) In this clause:
"dairy adjustment levy" means levy within the meaning of Part 4.
84 Payment of DSAP and SDA scheme fees to the industry services body
(1) The Commonwealth must pay to the industry services body an amount equal to each amount received by the Commonwealth by way of a fee under the DSAP scheme or the SDA scheme.
(2) The Consolidated Revenue Fund is appropriated for the purposes of subclause ( 1).
85 Payment of penalties under the DSAP scheme and SDA scheme to the industry services body
(1) The Commonwealth must pay to the industry services body an amount equal to each amount received by the Commonwealth by way of a penalty under clause 49.
(2) The Consolidated Revenue Fund is appropriated for the purposes of subclause ( 1).
86 Dairy Regional Assistance Programme
(1) For the purposes of this Part, the Dairy Regional Assistance Programme is a part of the Regional Assistance Programme, being the part known as the Dairy Regional Assistance Programme.
(2) To avoid doubt, the Infrastructure Department is responsible for administering the Dairy Regional Assistance Programme. This includes (but is not limited to) responsibility for determining:
(a) the recipients of payments; and
(b) the amounts of payments; and
(c) the timing of payments; and
(d) the terms and conditions of payments.
(4) The total amount paid out of the Dairy Structural Adjustment Fund:
(a) in making payments under the Dairy Regional Assistance Programme; and
(b) in meeting the expenses of the Commonwealth incurred in relation to the administration of the Dairy Regional Assistance Programme;
must not exceed $65 million.
(6) In this clause:
"Regional Assistance Programme" means the Programme administered by the Commonwealth and known as the Regional Assistance Programme.
86A Industry services body entitled to full indemnity
(1) The industry services body is entitled to be fully indemnified against any liability (including any liability as to costs) incurred by it in keeping and administering, or purporting to keep and administer, the Dairy Structural Adjustment Fund.
(2) The indemnity is to be paid out of the assets of the Dairy Structural Adjustment Fund.
Part 4 -- Collection of dairy adjustment levy
The following is a simplified outline of this Part:
• The principal levy base for dairy adjustment levy is the sale of a leviable milk product to a person who purchases for the purposes of resale in Australia , where the resale is a retail sale.
• Dairy adjustment levy is imposed by the separate Dairy Adjustment Levy Acts, and the rate of levy is set out in those Acts.
• Levy may be collected by collection agents and collection sub - agents.
In this Part, unless the contrary intention appears:
"authorised person" means an APS employee who has been authorised by the Secretary under clause 127 for the purposes of the provision in which the expression occurs.
"collecting organisation" means an organisation that is a party to an agreement under clause 103.
"collection agent" means a person who, under clause 97, is an agent of the Commonwealth for the purposes of the collection of levy.
"collection sub-agent" means a person who, under clause 98 or 99, is a sub - agent of the Commonwealth for the purposes of the collection of levy.
"dairy product" means:
(a) milk; or
(b) any other product made from, or containing, milk or a constituent part of milk.
"designated small levy-payer" has the meaning given by clause 123.
"designated small remitter" has the meaning given by clause 122.
"examinable documents" means any documents relevant to the operation of this Part.
"late payment penalty" means penalty payable under clause 107.
"leviable milk product" means a dairy product that is:
(a) marketed principally as:
(i) a beverage for human consumption; or
(ii) an ingredient for use in making a beverage for human consumption; or
(b) for use principally as:
(i) a beverage for human consumption; or
(ii) an ingredient for use in making a beverage for human consumption;
but does not include a product declared by the regulations to be exempt from levy.
"levy" means levy that is payable under Division 2 and imposed as dairy adjustment levy by any of the following:
(a) the Dairy Adjustment Levy (Excise) Act 2000 ;
(b) the Dairy Adjustment Levy (Customs) Act 2000 ;
(c) the Dairy Adjustment Levy (General) Act 2000 .
"organisation" includes an unincorporated body of persons.
"premises" includes:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) a place (whether enclosed or built on or not); and
(c) a part of premises (including premises of the kind referred to in paragraph ( a) or (b)).
"process" , in relation to a leviable milk product, means:
(a) the production of the product; or
(b) the importation into Australia of the product; or
(c) the performance of any other operation in relation to the product;
but does not include:
(d) the chilling of the product; or
(e) the performance of any operation specified in the regulations.
"relevant application to own use" , in relation to a leviable milk product, means:
(a) giving the product away; or
(b) transferring property in the product under a contract that is not a contract of sale; or
(c) using the product as an ingredient in making a beverage or other product, where:
(i) the beverage or other product is for supply directly to a consumer; or
(ii) the beverage or other product is to be given away; or
(iii) property in the beverage or other product is to be transferred under a contract that is not a contract of sale.
"State" includes the Australian Capital Territory and the Northern Territory .
Division 2 -- Liability for levy
(1) Levy is payable on each of the following:
(a) the sale of a leviable milk product to a person who purchases for the purposes of resale in Australia , where the resale is a retail sale;
(b) the retail sale of a leviable milk product;
(c) the sale of a leviable milk product to a person who purchases for the purpose of relevantly applying the product to the person's own use in Australia ;
(d) the relevant application to a person's own use of a leviable milk product.
(2) Paragraph ( 1)(d) does not apply to the relevant application to a person's own use of a leviable milk product if the product is consumed at the site on which it was produced.
(3) Levy is not payable under this Division unless it is imposed as dairy adjustment levy by another Act.
(1) Levy is not payable under paragraph 89(1)(a), (b) or (c) on the sale of a leviable milk product if the sale occurs before 8 July 2000.
(2) Levy is not payable under paragraph 89(1)(d) on the relevant application to a person's own use of a leviable milk product if the relevant application occurs before 8 July 2000.
Levy is not payable in respect of a leviable milk product if levy has previously been imposed in respect of that product.
The regulations may make provision for exemptions from levy.
(1) Levy payable under paragraph 89(1)(a) is payable by the person who purchased the leviable milk product for the purposes of resale.
(2) Levy payable under paragraph 89(1)(b) is payable by the person who is the retail seller of the leviable milk product.
(3) Levy payable under paragraph 89(1)(c) is payable by the person who purchased the leviable milk product for the purpose of relevantly applying the product to the person's own use.
(4) Levy payable under paragraph 89(1)(d) is payable by the person who relevantly applied the leviable milk product to the person's own use.
94 Termination of levy when core funding obligations are met
(1) The Minister may, by legislative instrument, declare that the seventh day after the day on which the instrument is registered on the Federal Register of Legislative Instruments established under the Legislative Instruments Act 2003 is the levy termination day for the purposes of this clause.
Note: After the declaration was registered, the Legislative Instruments Act 2003 was renamed as the Legislation Act 2003 .
(2) The Minister must not make a declaration under subclause ( 1) unless the Minister is satisfied that there will be sufficient money in the Dairy Structural Adjustment Fund after the day declared under subclause ( 1), for the following purposes:
(a) making DSAP payments;
(aa) making SDA payments;
(c) repaying money borrowed or otherwise raised for the purpose of making payments for which money in the Dairy Structural Adjustment Fund may be expanded;
(d) meeting the expenses of the industry services body incurred in borrowing or otherwise raising money for the purposes of making payments for which money in the Dairy Structural Adjustment Fund may be expanded;
(e) in meeting the obligations and liabilities of the industry services body in respect of contracts entered into or dealt with by it under clause 77CB;
(f) in meeting the expenses of the industry services body incurred in respect of contracts entered into or dealt with by it under clause 77CB.
(3) Levy is not payable under paragraph 89(1)(a), (b) or (c) on the sale of a leviable milk product if the sale occurs after the levy termination day.
(4) Levy is not payable under paragraph 89(1)(d) on the relevant application to a person's own use of a leviable milk product if the relevant application occurs after the levy termination day.
95 Termination of levy if DSAP payment start day does not occur within 6 months after the Dairy Industry Adjustment Act 2000 receives Royal Assent
(1) This clause applies if the DSAP payment start day is not fixed by a Proclamation published in the Gazette within the period of 6 months beginning on the day on which the Dairy Industry Adjustment Act 2000 receives the Royal Assent.
(2) Levy is not payable under paragraph 89(1)(a), (b) or (c) on the sale of a leviable milk product if the sale occurs after the end of that period.
(3) Levy is not payable under paragraph 89(1)(d) on the relevant application to a person's own use of a leviable milk product if the relevant application occurs after the end of that period.
Division 3 -- When levy due for payment
(1) Levy payable under paragraph 89(1)(a) or (c) on the sale of a leviable milk product is due and payable on whichever is the earlier of the following days:
(a) the first day on which any part of the consideration for the sale is due;
(b) the 90th day after the day on which the sale occurred.
(2) Levy payable by a person under paragraph 89(1)(b) on the retail sale of a leviable milk product is due and payable on:
(a) if the person is a designated small levy - payer in relation to the financial year in which the retail sale occurred--the 28th day after the end of the financial year; or
(b) in any other case--the 28th day after the end of the month in which the retail sale occurred.
(3) Levy payable by a person under paragraph 89(1)(d) on the relevant application to the person's own use of a leviable milk product is due and payable on:
(a) if the person is a designated small levy - payer in relation to the financial year in which the relevant application occurred--the 28th day after the end of the financial year; or
(b) in any other case--the 28th day after the end of the month in which the relevant application occurred.
Division 4 -- Collection agents, collection sub - agents and collecting organisations
(1) This clause applies to levy if:
(a) the levy is payable under paragraph 89(1)(a) or (c) on the sale of a leviable milk product to a person (the purchaser ); and
(b) there is not in force an agreement under clause 103 that relates to the payment of levy by the purchaser.
(2) For better securing the payment of the levy:
(a) the person who performed the last process in relation to the product before the sale occurred is, by force of this clause, the agent of the Commonwealth for the purposes of the collection of the levy; and
(b) if the collection agent supplied the product directly to the purchaser--payment of the levy is to be made to the collection agent on behalf of the Commonwealth at or before the time when the levy becomes due to be paid.
(3) If the purchaser pays an amount of levy under paragraph ( 2)(b), the purchaser is, to the extent of the amount so paid, discharged from liability to pay the levy to the Commonwealth.
Remission of levy by agent
(4) If the collection agent receives an amount of levy under paragraph ( 2)(b) during a particular month, the agent must remit the levy to the Commonwealth within:
(a) if the agent is a designated small remitter in relation to the financial year in which the month occurred--28 days after the end of the financial year; or
(b) in any other case--28 days after the end of the month.
(5) A person commits an offence if:
(a) the person is subject to a requirement to remit levy under subclause ( 4); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the requirement.
Penalty: 230 penalty units or imprisonment for 12 months, or both.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Information about levy
(6) If the collection agent supplied the product directly to the purchaser, the collection agent must, before the levy becomes due to be paid, inform the purchaser, either on the invoice for the product or in some other way:
(a) that levy is payable on the sale of the product; and
(b) of the amount of levy payable.
(7) A person commits an offence if:
(a) the person is subject to a requirement to inform another person under subclause ( 6); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
98 Collection sub - agents--simple supply chain
(1) This clause applies to levy if:
(a) the levy is payable under paragraph 89(1)(a) or (c) on the sale of a leviable milk product to a person (the purchaser ); and
(b) the collection agent for the levy supplied the product to the purchaser indirectly, through a single interposed person; and
(c) there is not in force an agreement under clause 103 that relates to the payment of levy by the purchaser.
Note: For example, if the collection agent (A) sells the product to a wholesaler (W), who in turn sells the product to the purchaser, then W is the interposed person.
Payment of levy by the purchaser
(2) For better securing the payment of the levy:
(a) the interposed person is, by force of this clause, the sub - agent of the Commonwealth for the purposes of the collection of the levy; and
(b) payment of the levy is to be made to the collection sub - agent on behalf of the Commonwealth at or before the time when the levy becomes due to be paid.
(3) If the purchaser pays an amount of levy under paragraph ( 2)(b), the purchaser is, to the extent of the amount so paid, discharged from liability to pay the levy to the Commonwealth.
Remission of levy by sub - agent and agent
(4) If the collection sub - agent receives an amount of levy under paragraph ( 2)(b), the sub - agent must remit the levy to the collection agent by such time as is ascertained in accordance with the regulations.
(5) If the collection agent receives an amount of levy under subclause ( 4) during a particular month, the agent must remit the levy to the Commonwealth within:
(a) if the agent is a designated small remitter in relation to the financial year in which the month occurred--28 days after the end of the financial year; or
(b) in any other case--28 days after the end of the month.
(6) A person commits an offence if:
(a) the person is subject to a requirement to remit levy under subclause ( 4) or (5); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the requirement.
Penalty: 230 penalty units or imprisonment for 12 months, or both.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Information about levy
(7) The collection agent must, before the levy becomes due to be paid, inform the collection sub - agent, either on the invoice for the product or in some other way:
(a) that levy is payable on the sale of the product to the purchaser; and
(b) of the amount of levy payable.
(8) The collection sub - agent must, before the levy becomes due to be paid, inform the purchaser, either on the invoice for the product or in some other way:
(a) that levy is payable on the sale of the product to the purchaser; and
(b) of the amount of levy payable.
(9) A person commits an offence if:
(a) the person is subject to a requirement to inform another person under subclause ( 7) or (8); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
99 Collection sub - agents--complex supply chain
(1) This clause applies to levy if:
(a) the levy is payable under paragraph 89(1)(a) or (c) on the sale of a leviable milk product to a person (the purchaser ); and
(b) the collection agent for the levy supplied the product to the purchaser indirectly, through 2 or more interposed persons; and
(c) there is not in force an agreement under clause 103 that relates to the payment of levy by the purchaser.
Supply chain
(2) For the purposes of this clause, the interposed persons are taken to form a supply chain , and are to be ranked in an order that corresponds to the order of those persons in the supply chain, with:
(a) the person who acquired the product from the collection agent being ranked highest; and
(b) the person who sold the product to the purchaser being ranked lowest.
Note: For example, if the collection agent (A) sells the product to a wholesaler (W) and W sells the product to a distributor (D), who in turn sells the product to the purchaser, then W is the highest - ranking interposed person and D is the lowest - ranking interposed person.
Payment of levy by the purchaser
(3) For better securing the payment of the levy:
(a) each interposed person is, by force of this clause, a sub - agent of the Commonwealth for the purposes of the collection of the levy; and
(b) payment of the levy is to be made to the lowest - ranking collection sub - agent on behalf of the Commonwealth at or before the time when the levy becomes due to be paid.
(4) If the purchaser pays an amount of levy under paragraph ( 3)(b), the purchaser is, to the extent of the amount so paid, discharged from liability to pay the levy to the Commonwealth.
Remission of levy by sub - agent and agent
(5) If the lowest - ranking collection sub - agent receives an amount of levy under paragraph ( 3)(b), the sub - agent must remit the levy to the next highest ranking sub - agent in the supply chain by such time as is ascertained in accordance with the regulations.
(6) If a collection sub - agent (other than the highest - ranking sub - agent) receives an amount of levy under subclause ( 5) or this subclause, the sub - agent must remit the levy to the next highest ranking sub - agent in the supply chain by such time as is ascertained in accordance with the regulations.
(7) If the highest - ranking collection sub - agent receives an amount of levy under subclause ( 5) or (6), the sub - agent must remit the levy to the collection agent by such time as is ascertained in accordance with the regulations.
(8) If the collection agent receives an amount of levy under subclause ( 7) during a particular month, the agent must remit the levy to the Commonwealth within:
(a) if the agent is a designated small remitter in relation to the financial year in which the month occurred--28 days after the end of the financial year; or
(b) in any other case--28 days after the end of the month.
(9) A person commits an offence if:
(a) the person is subject to a requirement to remit levy under subclause ( 5), (6), (7) or (8); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the requirement.
Penalty: 230 penalty units or imprisonment for 12 months, or both.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Information about levy
(10) The collection agent must, before the levy becomes due to be paid, inform the highest - ranking collection sub - agent, either on the invoice for the product or in some other way:
(a) that levy is payable on the sale of the product to the purchaser; and
(b) of the amount of levy payable.
(11) A collection sub - agent (other than the lowest - ranking sub - agent) must, before the levy becomes due to be paid, inform the next lowest - ranking collection sub - agent, either on the invoice for the product or in some other way:
(a) that levy is payable on the sale of the product to the purchaser; and
(b) of the amount of levy payable.
(12) The lowest - ranking collection sub - agent must, before the levy becomes due to be paid, inform the purchaser, either on the invoice for the product or in some other way:
(a) that levy is payable on the sale of the product to the purchaser; and
(b) of the amount of levy payable.
(13) A person commits an offence if:
(a) the person is subject to a requirement to inform another person under subclause ( 10), (11) or (12); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
100 Collection agents and collection sub - agents to notify unpaid levy
(1) If:
(a) an amount of levy is required to be paid to a collection agent or a collection sub - agent under paragraph 97(2)(b), 98(2)(b) or 99(3)(b) at or before a particular time in a particular month; and
(b) the levy is not paid at or before that time;
the collection agent or collection sub - agent must, within 28 days after the end of the month, give an authorised person a notice about the unpaid levy.
(2) A notice under subclause ( 1) must set out such information as is specified in the regulations.
(3) A person commits an offence if:
(a) the person is subject to a requirement to give an authorised person a notice under subclause ( 1); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
101 Collection agents and collection sub - agents to notify unremitted levy
(1) If:
(a) an amount of levy is required by subclause 98(4) or 99(5), (6) or (7) to be remitted to a collection agent or a collection sub - agent by a particular time in a particular month; and
(b) the levy is not remitted by that time;
the collection agent or collection sub - agent must, within 28 days after the end of the month, give an authorised person a notice about the unremitted levy.
(2) A notice under subclause ( 1) must set out such information as is specified in the regulations.
(3) A person commits an offence if:
(a) the person is subject to a requirement to give an authorised person a notice under subclause ( 1); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
102 Collection agents and collection sub - agents to issue receipts for levy
(1) If a collection agent receives an amount of levy from another person under paragraph 97(2)(b) or subclause 98(4) or 99(7), the agent must give the other person a receipt for the levy within 14 days after receiving the levy.
(2) If a collection sub - agent receives an amount of levy from another person under paragraph 98(2)(b) or 99(3)(b) or subclause 99(5) or (6), the sub - agent must give the other person a receipt for the levy within 14 days after receiving the levy.
(3) The regulations may make provision for exemptions from subclause ( 1) or (2).
(4) A receipt given under this clause must contain such information as is specified in the regulations.
(5) A person commits an offence if:
(a) the person is subject to a requirement to give a receipt to another person under subclause ( 1) or (2); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6) For the purposes of this clause, a receipt means an acknowledgment of having received levy, whether that acknowledgment is given:
(a) in writing; or
(b) by way of electronic transmission; or
(c) in any other form;
but does not include a verbal acknowledgment.
(1) This clause applies to levy payable under paragraph 89(1)(a) or (c) on the sale of a leviable milk product.
(2) The Secretary may enter into an agreement with an organisation with respect to the collection, on behalf of the Commonwealth, of levy by that organisation.
(3) The matters that may be provided for in an agreement entered into with a collecting organisation include (but are not limited to):
(a) the State or region in which amounts of levy are to be collected by the organisation; and
(b) the persons from whom amounts of levy are to be collected by the organisation; and
(c) the keeping by the organisation of accounts and records in relation to amounts of levy collected by the organisation; and
(d) the remission by the organisation to the Commonwealth of amounts of levy collected by the organisation; and
(e) the giving by the organisation to the Secretary of information about:
(i) amounts of levy collected by the organisation; and
(ii) amounts of levy remitted by the organisation to the Commonwealth; and
(iii) leviable milk products in respect of which levy is payable; and
(f) the inspection and audit of accounts and records kept by the organisation for the purposes of paragraph ( c).
(4) If an agreement entered into under subclause ( 1) with a collecting organisation is in force in relation to the payment of levy by a particular person, payment of levy payable by that person is to be made to that organisation, on behalf of the Commonwealth, in accordance with the terms of the agreement.
(5) If a person pays an amount of levy in accordance with subclause ( 4), the person is, to the extent of the amount so paid, discharged from liability to pay the levy to the Commonwealth.
(6) Before making an agreement under subclause ( 1), the Secretary must consult the Council.
(7) The Secretary must give notice in the Gazette of the making of an agreement under subclause ( 1) within 21 days after the making of the agreement.
(8) A failure to comply with subclause ( 6) or (7) does not invalidate the agreement.
(9) The Commonwealth must not, in exercising its powers under this clause:
(a) discriminate between States or parts of States within the meaning of subparagraph 51(ii) of the Constitution; or
(b) give preference to one State or any part thereof within the meaning of section 99 of the Constitution.
104 Application of the Public Governance, Performance and Accountability Act 2013
Despite subsection 105(2) of the Public Governance, Performance and Accountability Act 2013 , levy collected by a collection agent, a collection sub - agent or a collecting organisation is not other CRF money for the purposes of that Act.
Division 5 -- Record - keeping requirements
105 Record - keeping requirements for levy payers
(1) If levy is payable under paragraph 89(1)(a) or (c) on the sale of a leviable milk product, the purchaser of the product must:
(a) keep a record of the sale; and
(b) retain that record for at least 5 years after the sale.
(2) If levy is payable under paragraph 89(1)(b) on the retail sale of a leviable milk product, the retail seller must:
(a) keep a record of the sale; and
(b) retain that record for at least 5 years after the sale.
(3) If levy is payable under paragraph 89(1)(d) on the relevant application to a person's own use of a leviable milk product, the person must:
(a) keep a record of that relevant application; and
(b) retain that record for at least 5 years after the completion of the relevant application.
(4) A record kept under this clause must be:
(a) in English, or readily accessible and easily convertible into English; and
(b) such as to enable the person's liability for levy to be readily ascertained.
(5) However, it is not necessary for a person to retain records under this clause if:
(a) the Secretary notifies the person that the person does not need to retain the records; or
(b) the person is a company that has been finally dissolved.
(6) A person commits an offence if:
(a) the person is subject to a requirement to keep or retain a record under this clause; and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the requirement.
Penalty for co ntravention of this subclause: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
106 Record - keeping requirements for collection agents and collection sub - agents
(1) If a collection agent receives an amount of levy under paragraph 97(2)(b) or subclause 98(4) or 99(7), the agent must:
(a) keep a record of the receipt; and
(b) retain that record for at least 5 years after the receipt.
(2) If a collection sub - agent receives an amount of levy under paragraph 98(2)(b) or 99(3)(b) or subclause 99(5) or (6), the sub - agent must:
(a) keep a record of the receipt; and
(b) retain that record for at least 5 years after the receipt.
(3) A record kept under this clause must be:
(a) in English, or readily accessible and easily convertible into English; and
(b) such as to enable the agent's or sub - agent's liability to remit levy to be readily ascertained.
(4) However, it is not necessary for a person to retain records under this clause if:
(a) the Secretary notifies the person that the person does not need to retain the records; or
(b) the person is a company that has been finally dissolved.
(5) A person commits an offence if:
(a) the person is subject to a requirement to keep or retain a record under this clause; and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Division 6 -- Late payment penalty
Late payments by levy payer
(1) If an amount of levy that is payable by a person remains unpaid after the time when it became due for payment, there is payable by the person to the Commonwealth, by way of penalty accruing from the time the levy became due for payment until it is paid in full, an amount worked out as follows:
(a) during the month in which the levy became due for payment, the amount of penalty accrues at the rate of 2% per month on the levy due;
(b) during the next and each subsequent month, the amount of penalty consists of the sum of:
(i) each amount that accrued during a previous month; and
(ii) the amount accruing during that month at the rate of 2% per month on the sum of the amount of levy then payable and penalty payable at the end of the previous month.
Late remission by collection agent or collection sub - agent
(2) If an amount of levy that is required by clause 97, 98 or 99 to be remitted by a collection agent or a collection sub - agent remains unremitted after the time when it was required to be remitted, there is payable by the agent or sub - agent to the Commonwealth, by way of penalty accruing from the time the levy was required to be remitted until it is remitted in full, an amount worked out as follows:
(a) during the month in which the levy was required to be remitted, the amount of penalty accrues at the rate of 2% per month on the unremitted levy;
(b) during the next and each subsequent month, the amount of penalty consists of the sum of:
(i) each amount that accrued during a previous month; and
(ii) the amount accruing during that month at the rate of 2% per month on the sum of the levy then unremitted and penalty payable at the end of the previous month.
(3) The Secretary may extinguish a person's liability for the whole or a part of an amount of penalty payable under this clause.
Division 7 -- Recovery of levy debts
(1) For the purposes of this Division, a levy debt is:
(a) an amount of levy that is due and payable by a person; or
(b) an amount of levy that is required by clause 97, 98 or 99 to be remitted to the Commonwealth by a collection agent and that remains unremitted after the time when it is required to be remitted; or
(c) an amount of levy that is required by clause 98 or 99 to be remitted to a collection agent by a collection sub - agent and that remains unremitted after the time when it is required to be remitted; or
(d) an amount of levy that is required by clause 99 to be remitted to a collection sub - agent by another collection sub - agent and that remains unremitted after the time when it is required to be remitted; or
(e) an amount of levy that is required by an agreement under clause 103 to be remitted to the Commonwealth by a collecting organisation and that remains unremitted after the time when it is required to be remitted; or
(f) an amount of late payment penalty.
(2) If an amount of levy that was required to be remitted is recovered by the Commonwealth under this Division:
(a) the obligation to remit the amount of levy ceases from the time of the recovery; and
(b) subclause 108(2) has effect as if the amount of levy had been remitted at the time of the recovery.
109 Levy debts are debts due to the Commonwealth
A levy debt is a debt due to the Commonwealth.
A levy debt may be recovered by the Commonwealth by action in a court of competent jurisdiction.
111 Commonwealth may collect money from a person who owes money to a person
What this clause does
(1) This clause allows the Commonwealth to collect money from a person who owes money to a person that has a levy debt.
The Secretary may give direction
(2) The Secretary may direct a person (the third party ) who owes, or may later owe, money (the available money ) to the person to pay some or all of the available money to the Commonwealth in accordance with the direction. The Secretary must give a copy of the direction to the person.
Limit on directions
(3) The direction cannot require an amount to be paid to the Commonwealth at a time before it becomes owing by the third party to the person.
Third party to comply
(4) The third party must comply with the direction.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5) The third party does not commit an offence against subclause ( 4) if the third party complies with the direction so far as the third party is able to do so.
Note: A defendant bears an evidential burden in relation to the matter in subclause ( 5). See subsection 13.3(3) of the Criminal Code .
Court orders
(6) If a person is convicted of an offence in relation to a refusal or failure of the third party to comply with subclause ( 4), the court may (in addition to imposing a penalty on the convicted person) order the convicted person to pay to the Commonwealth an amount up to the amount involved in the refusal or failure of the third party.
Indemnity
(7) Any payment made by the third party under this clause is taken to have been made with the authority of the person and of all other persons concerned, and the third party is indemnified for the payment.
Notice
(8) If the whole of the levy debt of the person is discharged before any payment is made by the third party, the Secretary must immediately give notice to the third party of that fact.
(9) If a part of the levy debt of the person is discharged before any payment is made by the third party, the Secretary must:
(a) immediately give notice to the third party of that fact; and
(b) make an appropriate variation to the direction; and
(c) give a copy of the varied direction to the person.
When third party is taken to owe money
(10) The third party is taken to owe money to the person if:
(a) money is due or accruing by the third party to the person; or
(b) the third party holds money for or on account of the person; or
(c) the third party holds money on account of some other person for payment to the person; or
(d) the third party has authority from some other person to pay money to the person;
whether or not the payment of the money to the person is dependent on a pre - condition that has not been fulfilled.
Division 8 -- Information - gathering powers
112 Power to call for returns or information
(1) An authorised person may, by notice in writing given to a person, require the person:
(a) to give the authorised person, within such reasonable time as is specified in the notice, such return or information in relation to matters relevant to the operation of this Part as is specified in the notice; and
(b) to verify any such return or information by statutory declaration.
(2) A person commits an offence if:
(a) the person has been given a notice under subclause ( 1); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes a requirement in the notice.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) If a person is convicted of an offence against subclause ( 2):
(a) the court may direct the person to give the return or information that he or she is required to give; and
(b) on being so directed, the person must give the return or information to an authorised person within the time specified in the direction.
(4) A person commits an offence if:
(a) the person has been given a direction under subclause ( 3); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes a requirement in the direction.
Penalty for contravention of this subclause: 60 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
113 Regulations may require the giving of returns or information
(1) The regulations may require any or all of the following persons to give returns or information for the purposes of this Part:
(a) persons who are liable to pay, or who have paid, levy;
(b) collection agents;
(c) collection sub - agents;
(d) such other persons as are prescribed.
(2) The regulations may prescribe penalties, not exceeding a fine of 50 penalty units, for offences against regulations made for the purposes of subclause ( 1).
(3) If a person is convicted of an offence against regulations made for the purposes of this clause:
(a) the court may direct the person to give the return or information that he or she is required to give; and
(b) on being so directed, the person must give the return or information to an authorised person within the time specified in the direction.
(4) A person commits an offence if:
(a) the person has been given a direction under subclause ( 3); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes a requirement in the direction.
Penalty for contravention of this subclause: 60 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) An individual is not excused from submitting a return or giving information under this Division on the ground that the return or information might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) submitting the return or giving the information; or
(b) any information, document or thing obtained as a direct or indirect consequence of submitting the return or giving the information;
is not admissible in evidence against the individual in criminal proceedings other than:
(c) proceedings for an offence against subclause 112(2) or (4) or 113(4); or
(d) proceedings for an offence against regulations made for the purposes of clause 113; or
(e) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division.
(3) In this clause:
"this Division" includes regulations made for the purposes of clause 113.
Division 9 -- Access to premises
115 Powers of authorised person in relation to premises
(1) An authorised person may:
(a) with the consent of the occupier or person in charge of premises; or
(b) in accordance with a warrant issued under clause 118 in relation to premises;
enter the premises for the purpose of ascertaining whether a person has contravened or is contravening a provision of this Part.
(2) If an authorised person enters any premises under subclause ( 1), the authorised person may:
(a) search the premises for, examine and take stock of, any leviable milk products; and
(b) search the premises for, inspect, examine, take extracts from, and make copies of, any examinable documents.
116 Obstruction of authorised person acting under a warrant
(1) A person commits an offence if:
(a) the person obstructs or hinders an authorised person in the exercise of the authorised person's power under clause 115; and
(b) the authorised person exercises that power in accordance with a warrant issued under clause 118.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) In paragraph ( 1)(a), strict liability applies to the physical element of circumstance, that the authorised person's power is under clause 115.
Note: For strict liability, see section 6.1 of the Criminal Code .
(3) In paragraph ( 1)(b), strict liability applies to the physical element of circumstance, that the issue of the warrant was under clause 118.
Note: For strict liability, see section 6.1 of the Criminal Code .
117 Persons to assist authorised persons acting under a warrant
(1) If an authorised person enters any premises under clause 115 in accordance with a warrant issued under clause 118, the occupier or the person in charge must, if requested to do so by the authorised person, provide reasonable assistance to the authorised person in the exercise of his or her power under that clause in relation to those premises.
(1A) In subclause ( 1), strict liability applies to the physical elements of circumstance, that:
(a) the authorised person's power is under clause 115; and
(b) the issue of the warrant was under clause 118.
Note: For strict liability, see section 6.1 of the Criminal Code .
(2) A person commits an offence if:
(a) the person is subject to a requirement to provide reasonable assistance to an authorised person under subclause ( 1); and
(b) the first - mentioned person engages in conduct; and
(c) the first - mentioned person's conduct contravenes the requirement.
Penalty for contravention of this subclause: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) If a magistrate, on application by an authorised person, is satisfied, by information on oath:
(a) that there are reasonable grounds for believing:
(i) that there are on particular premises any leviable milk products; or
(ii) that there are examinable documents on particular premises; and
(b) that the issue of the warrant is reasonably required for the purpose of ascertaining whether a person has contravened or is contravening a provision of this Part;
the magistrate may issue a warrant authorising the authorised person to enter the premises:
(c) with such assistance, and by such force, as is necessary and reasonable; and
(d) during such hours as the warrant specifies, or, if the warrant so specifies, at any time.
(2) A warrant must specify:
(a) the powers exercisable under subclause 115(2) by the authorised person to whom the warrant is issued; and
(b) the day (not more than 14 days after the issue of the warrant) on which the warrant ceases to have effect.
(1) The Secretary may cause an identity card to be issued to an authorised person.
(2) An identity card must:
(a) contain a recent photograph of the authorised person to whom it is issued; and
(b) be in a form approved, in writing, by the Secretary.
(3) A person commits an offence if:
(a) the person has been issued with an identity card under subclause ( 1); and
(b) the person ceases to be an authorised person for the purposes of this Division; and
(c) the person does not immediately return the identity card to the Secretary.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4) If an authorised person proposes to enter premises otherwise than in accordance with a warrant issued under clause 118:
(a) the authorised person must produce his or her identity card to the occupier or the person in charge of the premises for inspection; and
(b) if the authorised person fails to do so, the authorised person is not entitled to enter the premises under clause 115.
Division 10 -- Evidentiary certificates
(1) The Secretary may issue a written certificate:
(a) stating that a person is liable to pay levy in respect of one or more sales of leviable milk products; and
(b) setting out particulars of those sales.
(2) The Secretary may issue a written certificate:
(a) stating that a person is liable to pay levy in respect of one or more relevant applications to the person's own use of leviable milk products; and
(b) setting out particulars of those relevant applications.
(3) The Secretary may issue a written certificate:
(a) stating that a specified person has contravened a levy remission provision; and
(b) setting out particulars of that contravention.
(4) In this clause:
"levy remission provision" means:
(a) subclause 97(4); or
(b) subclause 98(4); or
(c) subclause 98(5); or
(d) subclause 99(5); or
(e) subclause 99(6); or
(f) subclause 99(7); or
(g) subclause 99(8).
121 Evidentiary effect of certificate
(1) In any civil proceedings under, or arising out of, this Part, a certificate under clause 120 is prima facie evidence of the matters in the certificate.
(2) A document purporting to be a certificate under clause 120 must, unless the contrary is established, be taken to be such a certificate and to have been properly issued.
(3) The Secretary may certify that a document is a copy of a certificate under clause 120.
(4) This clause applies to the certified copy as if it were the original.
122 Designated small remitters
(1) The Secretary may, by written notice given to a person, declare that the person is a designated small remitter in relation to a specified financial year for the purposes of this Part.
(2) The declaration has effect accordingly.
(3) The Secretary must not make a declaration in relation to a person under subclause ( 1) unless the Secretary is satisfied that:
(a) the person has received, or is likely to receive, one or more amounts of levy in the capacity of collection agent during the financial year concerned; and
(b) the total of those amounts is, or is likely to be, less than $1,000.
123 Designated small levy - payers
(1) The Secretary may, by written notice given to a person, declare that the person is a designated small levy - payer in relation to a specified financial year for the purposes of this Part.
(2) The declaration has effect accordingly.
(3) The Secretary must not make a declaration in relation to a person under subclause ( 1) unless the Secretary is satisfied that:
(a) the person is liable to pay, or is likely to be liable to pay either or both of the following:
(i) one or more amounts of levy under paragraph 89(1)(b) on retail sales that occurred, or are likely to occur, during that financial year;
(ii) one or more amounts of levy under paragraph 89(1)(d) on relevant applications that occurred, or are likely to occur, during the financial year concerned; and
(b) the total of those amounts is, or is likely to be, less than $1,000.
If any of the following amounts has been overpaid, the amount overpaid must be refunded by the Commonwealth:
(a) an amount of levy;
(b) an amount of late payment penalty.
The regulations may make provision for refunds of levy.
126 Methods by which levy may be paid or remitted
(1) The regulations may make provision for the methods by which levy may be paid or remitted to the Commonwealth.
(2) Regulations made for the purposes of this clause may make provision for levy to be paid or remitted using an electronic funds transfer system.
(3) Subclause ( 2) does not limit subclause ( 1).
(1) The Secretary may, by writing, authorise a specified APS employee to be an authorised person for the purposes of a specified provision or provisions of this Part.
(2) The Secretary must not authorise an APS employee under subclause ( 1) unless the Secretary is of the opinion that the holder for the time being of the position held by the employee is reasonably likely to be suitably qualified (because of ability and experience) to be an authorised person for the purposes of the provision or provisions concerned.
(3) The Secretary may, by writing, authorise a specified person employed by, or in the service of, a collecting organisation to be an authorised person for the purposes of clause 112.
Note: Clause 112 deals with the giving of returns or information.
128 Publication of information about levy
(1) An authorised person may publish:
(a) the name and address of a person who has paid, or is liable to pay:
(i) levy; or
(ii) an amount of late payment penalty; or
(b) the name and address of a collection agent, a collection sub - agent or a collecting organisation; or
(c) information about amounts of levy received or receivable by the Commonwealth in any period (including such information relating to a particular State or region); or
(d) information about leviable milk products in respect of which levy is payable;
to either of the following:
(e) the Council;
(f) a person to whom the Secretary has granted access to such information.
(2) Subclause ( 1) does not authorise the publication of information in a manner that enables:
(a) an amount of levy paid or payable to be identified with a person (including a deceased person); and
(b) an amount of late payment penalty paid or payable to be identified with a person (including a deceased person).
(3) The Secretary may, on behalf of the Commonwealth, charge a fee for publishing a name, address or information under subclause ( 1).
(4) The amount of a fee under subclause ( 3) must not be such as to amount to taxation.
(1) The Secretary may, by writing, delegate to a senior officer all or any of the Secretary's powers under this Part (other than clause 127).
Note: Clause 127 deals with authorised persons.
(2) A delegate under this clause is, in the exercise of a function or power delegated under this clause, subject to any directions given by the Secretary.
(3) In this clause:
"senior officer" means:
(a) a person who holds or performs the duties of a Senior Executive Service office or position in the Department; or
(b) a person who holds or performs the duties of a DPIE Band 3 office or position, or an equivalent office or position, in the Department.
130 Reconsideration and review of decisions
(1) A person affected by a relevant decision who is dissatisfied with the decision may, within:
(a) 28 days after the day on which the decision first comes to the notice of the person; or
(b) such further period as the Secretary (either before or after the end of the period), by written notice given to the person, allows;
by written notice given to the Secretary, request the Secretary to reconsider the decision.
(2) A request under subclause ( 1) must set out the reasons for making the request.
(3) The Secretary must, within 45 days after receiving a request under subclause ( 2), reconsider the relevant decision and may make a decision:
(a) in substitution for the relevant decision, whether in the same terms as the relevant decision or not; or
(b) revoking the relevant decision.
(4) If, as a result of a reconsideration under subclause ( 3), the Secretary makes a decision in substitution for or revoking a relevant decision, the Secretary must, by written notice given to the person who made the request under subclause ( 1) for the reconsideration, inform the person of the result of the reconsideration and give the reasons for his or her decision.
(5) An application may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary under subclause ( 3).
(6) A person who makes a relevant decision must give to a person affected by the decision a written statement to the effect that a person affected by the decision:
(a) may, if the person is dissatisfied with the decision, seek a reconsideration of the decision in accordance with this clause; and
(b) may, subject to the Administrative Appeals Tribunal Act 1975 , if the person is dissatisfied with a decision made on that reconsideration, make application to the Administrative Appeals Tribunal for review of that decision.
(7) If the Secretary makes a decision under subclause ( 3) and gives to a person affected by the decision notice in writing of the making of the decision, that notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person affected by the decision.
(8) A failure to comply with subclause ( 6) or (7) in relation to a decision does not affect the validity of the decision.
(9) In this clause:
"relevant decision" means a decision to refuse to extinguish, under subclause 107(3), a person's liability for the whole or part of an amount of late payment penalty.
131 Commonwealth not liable to levy
(1) The Commonwealth is not liable to pay levy.
(2) Even though the Commonwealth is not liable to pay levy, it is the intention of the Parliament that the Commonwealth and Commonwealth entities should be notionally liable for levy.
(3) The Minister for Finance may give such written directions as are necessary or convenient to be given for carrying out or giving effect to subclause ( 2) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth or a Commonwealth entity.
(4) Directions under subclause ( 3) have effect, and must be complied with, despite any other law of the Commonwealth.
(5) In this clause:
"Commonwealth entity" means a Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013 that cannot be made liable to taxation by a Commonwealth law.
"Minister for Finance" means the Minister administering the Public Governance, Performance and Accountability Act 2013 .
132 Compensation for acquisition of property
(1) If the operation of this Schedule would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this clause:
"acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.
"just terms" has the same meaning as in paragraph 51(xxxi) of the Constitution.
133 False or misleading evidence
A person commits an offence if:
(a) the person gives evidence to another person; and
(b) the person does so knowing that the evidence is false or misleading in a material particular; and
(c) the evidence is given under clause 38.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.