Wheat Export Marketing Amendment Act 2012

(170 of 2012)

An Act to amend the Wheat Export Marketing Act 2008, and for other purposes

[Assented to 3 December 2012]

The Parliament of Australia enacts:

[Minister's second reading speech made in - House of Representatives on 21 March 2012, Senate on 19 November 2012]

1 Short title

This Act may be cited as the Wheat Export Marketing Amendment Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	3 December 2012
2. Schedule 1	10 December 2012.	10 December 2012
3. Schedule 2	1 January 2013.	1 January 2013
4. Schedule 3	1 October 2014. However, the provision(s) do not commence at all unless, before that day: (a) the Minister has published a notice in the Gazette under subsection 12(1) of the Wheat Export Marketing Act 2008 in respect of a code of conduct; and (b) the code has been declared by regulations under section 51AE of the Competition and Consumer Act 2010 to be a mandatory industry code.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4 National wheat industry advisory taskforce to be established

The Minister must cause to be established a wheat industry advisory taskforce by no later than 5 February 2013.

Schedule 1 Amendments relating to the wheat export accreditation scheme

Part 1 Amendments

Wheat Export Marketing Act 2008

1 Paragraph3(a)

Repeal the paragraph, substitute:

(a) to promote the operation of an efficient and profitable bulk wheat export marketing industry that supports the competitiveness of all sectors through the supply chain; and

2 Section 4

Repeal the section, substitute:

4 Simplified outline

The following is a simplified outline of this Act:

• This Act provides a system for regulating exports of wheat (other than wheat in bags or containers).

• A provider of a port terminal service who exports wheat, or who is an associated entity of a person who exports wheat, must pass the access test in relation to the port terminal service.

• An exporter of wheat:

(a) who provides a port terminal service; or

(b) who has an associated entity that provides the port terminal service;

must not export wheat using the port terminal service if a person who was required to pass the access test in relation to the port terminal service at a time during the previous 12 months did not pass the access test at that time.

• The Minister may approve a code of conduct dealing with the provision to wheat exporters of access to port terminal services by the providers of port terminal services.

3 Section 5 (definition of access test )

Omit "section 24", substitute "section 9".

4 Section 5 (definition of accredited wheat exporter )

Repeal the definition.

5 Section 5 (definition of ACN )

Repeal the definition.

6 Section 5 (definition of Australian Consumer Law )

Repeal the definition.

7 Section 5 (definition of company )

Repeal the definition.

8 Section 5 (definition of continuous disclosure rules )

Omit "subsection 24(4)", substitute "subsection 9(4)".

9 Section 5 (definition of co-operative )

Repeal the definition.

10 Section 5 (definition of designated sanitary or phytosanitary measure )

Repeal the definition.

11 Section 5 (definition of executive officer )

Repeal the definition.

12 Section 5 (definition of external auditor )

Repeal the definition.

13 Section 5 (definition of externally-administered body corporate )

Repeal the definition.

14 Section 5 (definition of foreign country )

Repeal the definition.

15 Section 5 (definition of foreign law )

Repeal the definition.

16 Section 5 (definition of individual producer )

Repeal the definition.

17 Section 5 (definition of involved in a contravention )

Repeal the definition.

18 Section 5

Insert:

old Act means this Act as in force immediately before the commencement of this definition.

19 Section 5 (definition of post-cancellation compliance report )

Repeal the definition.

20 Section 5 (definition of post-cancellation export report )

Repeal the definition.

21 Section 5 (definition of pre-cancellation period )

Repeal the definition.

22 Section 5 (definition of pre-surrender compliance report )

Repeal the definition.

23 Section 5 (definition of pre-surrender export report )

Repeal the definition.

24 Section 5 (definition of pre-surrender period )

Repeal the definition.

25 Section 5

Insert:

Secretary means the Secretary of the Department.

26 Section 5 (definition of United Nations sanctions provision )

Repeal the definition.

27 Section 5 (definition of wheat export accreditation scheme )

Repeal the definition.

28 Section 6

Repeal the section.

29 Part 2

Repeal the Part, substitute:

Part 2 - Access test

Division 1 - Requirement to pass the access test

7 Requirement to pass the access test - general rule

Who must pass the access test

(1) A provider of a port terminal service must pass the access test in relation to the port terminal service if:

(a) the provider exports wheat using the port terminal service; or

(b) the provider is an associated entity of a person who exports wheat using the port terminal service.

(2) Subsection (1) does not apply to the export of wheat in:

(a) a bag; or

(b) a container;

that is capable of holding not more than 50 tonnes of wheat.

When the access test must be passed

(3) The provider must pass the access test in relation to the port terminal service at all times during the 12-month period beginning on the day of the export of the wheat.

Exception

(4) The Secretary may, by writing, determine that this section does not apply in relation to a specified provider and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determination not a legislative instrument

(5) A determination under subsection (4) is not a legislative instrument.

7A Requirement to pass the access test - transitional rule

Who must pass the access test

(1) A provider of a port terminal service must pass the access test in relation to the port terminal service if the provider was, immediately before the commencement of this section:

(a) an accredited wheat exporter; or

(b) an associated entity of an accredited wheat exporter.

When the access test must be passed

(2) The provider must pass the access test in relation to the port terminal service at all times during the period:

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

(b) ending at the earlier of the following times:

(i) the first time the provider is required by section 7 to pass the access test in relation to the port terminal service;

(ii) the end of the 12-month period beginning on the day this item commences.

Exception

(3) The Secretary may, by writing, determine that this section does not apply in relation to a specified provider and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

Determination not a legislative instrument

(4) A determination under subsection (3) is not a legislative instrument.

Definitions

(5) For the purposes of this section:

accredited wheat exporter has the same meaning as in the old Act.

8 Exports of wheat

Scope

(1A) This section applies to a person if:

(a) the person is the provider of a port terminal service; or

(b) an associated entity of the person is the provider of a port terminal service.

Exports of wheat

(1) The person (the relevant exporter ) must not export wheat using the port terminal service if:

(a) both:

(i) a person (whether the relevant exporter, the associated entity or another person) was required by this Act to pass the access test in relation to the port terminal service at a time during the 12-month period ending on the day of the export; and

(ii) the person mentioned in subparagraph (i) did not pass the access test at that time; or

(b) the accreditation of an accredited wheat exporter was cancelled because a person (whether the relevant exporter, the associated entity or another person) failed the old access test in relation to the port terminal service at a time during the 12-month period ending on the day of the export.

Exceptions

(2) The Secretary may, by writing, determine that subsection (1) does not apply in relation to a specified person and to a specified export if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

(3) Subsection (1) does not apply if the wheat is exported in:

(a) a bag; or

(b) a container;

that is capable of holding not more than 50 tonnes of wheat.

(4) A person who wishes to rely on subsection (3) bears an evidential burden in relation to that matter.

Note: For evidential burden , see section 5.

Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(6) Subsections (1) and (5) are civil penalty provisions.

Note: Part 8 provides for pecuniary penalties for breaches of civil penalty provisions.

Determination not a legislative instrument

(7) A determination under subsection (2) is not a legislative instrument.

Definitions

(8) For the purposes of this section:

accredited wheat exporter has the same meaning as in the old Act.

old access test means the access test within the meaning of the old Act.

Division 2 - Access test

9 Access test

Access test - access undertaking

(1) A person passes the access test in relation to a port terminal service at a particular time if:

(a) at that time, there is in operation, under Division 6 of Part IIIA of the Competition and Consumer Act 2010, an access undertaking relating to the provision to wheat exporters of access to the port terminal service for purposes relating to the export of wheat; and

(b) the access undertaking obliges the person to comply, at that time, with the continuous disclosure rules in relation to the port terminal service(see subsection (4)); and

(2) For the purposes of paragraph (1)(a):

(a) assume that subsection 44ZZBA(1) of the Competition and Consumer Act 2010 had never been enacted; and

(b) assume that an access undertaking comes into operation at the time when the ACCC publishes its decision to accept the undertaking.

Access test - effective access regimes

(3) A person passes the access test in relation to a port terminal service at a particular time if:

(a) at that time:

(i) there is in force a decision under Division 2A of Part IIIA of the Competition and Consumer Act 2010 that a regime established by a State or Territory for access to the port terminal service is an effective access regime; and

(ii) under that regime, wheat exporters have access to the port terminal service for purposes relating to the export of wheat; and

(b) at that time, the person complies with the continuous disclosure rules in relation to the port terminal service (see subsection (4)).

Continuous disclosure rules

(4) The continuous disclosure rules in relation to a port terminal service are as follows:

(a) there is available on the person's website a current statement setting out the person's policies and procedures for managing demand for the port terminal service (including the person's policies and procedures relating to the nomination and acceptance of ships to be loaded using the port terminal service);

(b) there is available on the person's website a current statement (a loading statement ) setting out a unique slot reference number for each ship (a loading ship ) scheduled to load grain using the port terminal service;

(i) if the person knows the name of the ship - the name; and

(ii) the time when the ship was nominated to load grain using the port terminal service; and

(iii) the time when the ship was accepted as a ship scheduled to load grain using the port terminal service; and

(iv) the estimated time when the ship will arrive at the port terminal service; and

(v) the estimated time when grain is to start being loaded by the ship using the port terminal service; and

(vi) the estimated time when the ship will leave the port terminal service; and

(vii) the name of the exporter of the grain; and

(viii) the quantity of grain to be loaded by the ship using the port terminal service; and

(ix) the type of grain to be loaded by the ship using the port terminal service; and

(x) if grain has started to be loaded by the ship, but the loading has not been completed - that fact; and

(xi) if the ship has completed loading grain using the port terminal service - the time when the loading was completed;

(d) the person updates the loading statement each business day;

(e) both:

(i) the ACCC has a copy of the information set out in the most recently updated loading statement; and

(ii) the information was given to the ACCC in the manner and form approved, in writing, by the ACCC.

Export of wheat

(5) In this section, a reference to the export of wheat does not include a reference to the export of wheat in:

(a) a bag; or

(b) a container;

that is capable of holding not more than 50 tonnes of wheat.

Division 3 - Application of the Customs Act 1901

10 Application of the Customs Act 1901

If:

(a) an exportation of wheat contravenes section 8; and

(b) the Secretary notifies the Chief Executive Officer of Customs in writing that the Secretary wishes the Customs Act 1901 to apply to that exportation;

the Customs Act 1901 has effect as if the goods included in that exportation were goods described as forfeited to the Crown under section 229 of that Act because they were prohibited exports within the meaning of that Act.

11 Delegation by the Secretary

(1) The Secretary may, by writing, delegate any or all of his or her functions or powers under this Division to an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) In exercising powers under a delegation, the delegate must comply with any directions of the Secretary.

Division 4 - Code of conduct

12 Minister to approve code of conduct

(1) The Minister may, by notice published in the Gazette, approve a code of conduct for the purposes of this section.

(2) The Minister must not approve a code of conduct under subsection (1) unless the Minister is satisfied that the code of conduct:

(a) deals with the fair and transparent provision to wheat exporters of access to port terminal services by the providers of port terminal services; and

(b) requires providers of port terminal services to comply with continuous disclosure rules; and

(c) is consistent with the operation of an efficient and profitable wheat export marketing industry that supports the competitiveness of all sectors through the supply chain; and

(d) is consistent with any guidelines made by the ACCC relating to industry codes of conduct.

(3) A notice under subsection (1) is not a legislative instrument.

31 Part 3 (heading)

Repeal the heading, substitute:

Part 3 - Information-gathering powers

32 Division 1 of Part 3 (heading)

Repeal the heading, substitute:

Division 1 - Secretary may obtain information and documents

33 Section 25 (heading)

Repeal the heading, substitute:

25 Secretary may obtain information and documents

34 Subsection 25(1)

Repeal the subsection, substitute:

Scope

(1) This section applies if the Secretary has reason to believe that a person has information or a document that is relevant to:

(a) determining whether the person is required to pass the access test in relation to a particular port terminal service; or

(b) determining whether the person passed the access test in relation to a particular port terminal service at a particular time; or

35 Subsection 25(2)

Omit "WEA may, by written notice given to the company, require the company", substitute "The Secretary may, by written notice given to the person, require the person".

36 Paragraphs 25(2)(a) and (b)

Omit "WEA", substitute "the Secretary".

37 Paragraph 25(2)(b)

Omit "documents; or", substitute "documents.".

38 Paragraph 25(2)(c)

Repeal the paragraph.

39 Subsection 25(2) (note)

Repeal the note.

40 Subsection 25(4)

Repeal the subsection.

41 Subsection 25(5)

Omit "company", substitute "person".

42 Section 26

Repeal the section.

43 Subsection 27(1)

Omit "(1) WEA", substitute "The Secretary".

44 Paragraph 27(1)(a)

Omit "or copy".

45 Subsection 27(2)

Repeal the subsection.

46 Section 28 (heading)

Repeal the heading, substitute:

28 Secretary may retain documents

47 Subsection 28(1)

Omit "WEA", substitute "The Secretary".

48 Subsections 28(2) and (4)

Omit "WEA" (wherever occurring), substitute "the Secretary".

49 Divisions 2 and 3 of Part 3

Repeal the Divisions, substitute:

Division 2 - ACCC may obtain information and documents etc.

29 ACCC may obtain information and documents etc.

For the purposes of this Act, section 155 of the Competition and Consumer Act 2010 applies as if compliance with paragraphs 9(1)(c) and 9(3)(b) of this Act were a matter referred to in subsection 155(1) of the Competition and Consumer Act 2010.

50 Subsection 57(2)

Repeal the subsection.

51 Paragraph 59(b)

Repeal the paragraph.

52 Paragraph 60(c)

Omit "staff;", substitute "staff.".

53 Paragraphs 60(d) and (e)

Repeal the paragraphs.

54 Sections 67 to 72

Repeal the sections, substitute:

72 Review by the Administrative Appeals Tribunal

Applications may be made to the Administrative Appeals Tribunal for review of the following decisions of the Secretary:

(a) a decision under subsection 7(4) to determine that section 7 does not apply in relation to a specified provider and to a specified period;

(aa) a decision under subsection 7A(3) to determine that section 7A does not apply in relation to a specified provider and to a specified period;

(b) a decision under subsection 8(2) to determine that subsection 8(1) does not apply in relation to a specified person and to a specified export.

55 Subparagraph 73(a)(iii)

Omit "is given to WEA under subsection 25(2) or 29(2)", substitute "was given to WEA under subsection 25(2) or 29(2) of the old Act".

56 Subparagraph 73(a)(iv)

After "29(2)", insert "of the old Act".

57 Subparagraph 73(a)(v)

After "30(2)", insert "of the old Act".

58 Subparagraph 73(a)(vi)

After "31(1)(d)", insert "of the old Act".

59 Subsections 76(4) and (5)

Repeal the subsections, substitute:

(4) The pecuniary penalty payable under subsection (1) by a body corporate must not exceed:

(a) in the case of a contravention of subsection 8(1) or (5) - 3,000 penalty units for each contravention; or

(b) in the case of a contravention of subsection 25(5) or (6) - 1,500 penalty units for each contravention.

(5) The pecuniary penalty payable under subsection (1) by a person other than a body corporate must not exceed:

(a) in the case of a contravention of subsection 8(1)or (5) - 600 penalty units for each contravention; or

(b) in the case of a contravention of subsection 25(5) or (6) - 300 penalty units for each contravention.

60 Subsection 77(1)

Repeal the subsection, substitute:

(1) Only the Secretary may apply for a civil penalty order in relation to a contravention of any of the following provisions:

(a) subsection 8(1) or (5);

(b) subsection 25(5) or (6).

61 Subsection 86(1)

Repeal the subsection, substitute:

Scope

(1) This section applies to proceedings for a civil penalty order against a person for a contravention of any of the following provisions:

(a) subsection 8(1);

(e) subsection 25(5).

62 Section 87

Repeal the section, substitute:

87 Sharing information

Department

(1) An officer or employee of the Department may give:

(a) WEA; or

(b) Customs; or

information that is relevant to determining either or both of the following:

(d) whether a person is required to pass the access test in relation to a particular port terminal service;

(e) whether a person passed the access test in relation to a particular port terminal service at a particular time.

Customs

(2) A customs officer, or a member of the staff referred to in subsection 15(1) of the Customs Administration Act 1985, may give:

(a) WEA; or

(b) the Department; or

information that is relevant to determining either or both of the following:

(d) whether a person is required to pass the access test in relation to a particular port terminal service;

(e) whether a person passed the access test in relation to a particular port terminal service at a particular time.

ACCC

(3) A member of the staff of the ACCC may give:

(a) WEA; or

(b) Customs; or

information that is relevant to determining either or both of the following:

(d) whether a person is required to pass the access test in relation to a particular port terminal service;

(e) whether a person passed the access test in relation to a particular port terminal service at a particular time.

Part 2 Consequential amendments

Criminal Code Act 1995

63 Subparagraph 136.1(1)(c)(iii) of the Criminal Code

Omit "benefit; or", substitute "benefit; and".

64 Subparagraph 136.1(1)(c)(iv) of the Criminal Code

Repeal the subparagraph.

65 Subparagraph 136.1(4)(c)(iii) of the Criminal Code

Omit "benefit; or", substitute "benefit; and".

66 Subparagraph 136.1(4)(c)(iv) of the Criminal Code

Repeal the subparagraph.

67 Subsection 136.1(9) of the Criminal Code (definition of wheat export accreditation scheme)

Repeal the definition.

Schedule 2 Amendments relating to Wheat Exports Australia

Part 1 Amendments

Wheat Export Marketing Act 2008

1 Section 5 (definition of Australian law )

Repeal the definition.

2 Section 5 (definition of business )

Repeal the definition.

3 Section 5 (definition of marketing year )

Repeal the definition.

4 Section 5 (definition of old Act )

Repeal the definition.

5 Section 5 (definition of protected confidential information )

Repeal the definition.

6 Section 5 (definition of related body corporate )

Repeal the definition.

7 Section 5 (definition of WEA Chair )

Repeal the definition.

8 Section 5 (definition of WEA member )

Repeal the definition.

9 Section 5 (definition of WEA staff )

Repeal the definition.

10 Section 5 (definition of wheat export charge amounts )

Repeal the definition.

12 Part 4

Repeal the Part.

13 Part 5 (heading)

Repeal the heading, substitute:

Part 5 - Wheat Industry Special Account

14 Divisions 1 to 5 of Part 5

Repeal the Divisions.

15 Division 6 of Part 5

Repeal the Division, substitute:

Division 6 - Wheat Industry Special Account

58 Wheat Industry Special Account

(1) The Wheat Exports Australia Special Account that was, immediately before the commencement of this subsection, in existence under this Act, is continued in existence as the Wheat Industry Special Account.

(2) The Wheat Industry Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

59 Credits to the Wheat Industry Special Account

There must be credited to the Wheat Industry Special Account amounts equal to amounts received for the purpose of the Wheat Industry Special Account.

Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a Special Account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the Special Account), then amounts may be debited against the appropriation for that item and credited to that Special Account.

60 Purpose of the Wheat Industry Special Account

The purpose of the Wheat Industry Special Account is funding a measure or program, if the following conditions are satisfied:

(a) the purpose of the measure or program is to assist the wheat export industry, or a sector of that industry;

(b) the Minister has approved the funding.

Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

16 Divisions 7 to 9 of Part 5

Repeal the Divisions.

17 Part 7

Repeal the Part.

22 Paragraphs 87(1)(a), (2)(a) and (3)(a)

Repeal the paragraphs.

Part 2 Transitional provisions

Division 1 Preliminary

23 Definitions

In this Part:

Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund.

asset means:

(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

(b) any right, power, privilege or immunity, whether actual, contingent or prospective.

assets official , in relation to an asset other than land, means the person or authority who, under:

(a) a lawof the Commonwealth, a State or a Territory; or

(b) a trust instrument; or

has responsibility for keeping a register in relation to assets of the kind concerned.

commencement time means the commencement of this Part.

departmental item means a departmental item in the most recent Appropriation Act.

Finance Minister means the Minister who administers the Financial Management and Accountability Act 1997.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official , in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective.

Secretary means the Secretary of the Department.

WEA has the same meaning as in the Wheat Export Marketing Act 2008.

Division 2 Transfer of assets and liabilities

24 Vesting of assets of WEA

(1) This item applies to the assets of WEA immediately before the commencement time.

(2) At the commencement time, the assets cease to be assets of WEA and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the assets.

25 Vesting of liabilities of WEA

(1) This item applies to the liabilities of WEA immediately before the commencement time.

(2) At the commencement time, the liabilities cease to be liabilities of WEA and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the liabilities.

26 Certificates relating to vesting of land

(1) This item applies if:

(a) any land vests in the Commonwealth under this Division; and

(b) there is lodged with a land registration official a certificate that:

(i) is signed by the Minister; and

(ii) identifies the land, whether by reference to a map or otherwise; and

(iii) states that the land has become vested in the Commonwealth under this Division.

(2) The land registration official may:

(a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

(b) deal with, and give effect to, the certificate.

(3) A certificate made under subitem (1) is not a legislative instrument.

27 Certificates for vesting of assets other than land

(1) This item applies if:

(a) an asset other than land vests in the Commonwealth under this Division; and

(b) there is lodged with an assets official a certificate that:

(i) is signed by the Minister; and

(ii) identifies the asset; and

(iii) states that the asset has become vested in the Commonwealth under this Division.

(2) The assets official may:

(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and

(b) make such entries in the register in relation to assets of that kind as are necessary, having regard to the effect of this Division.

(3) A certificate made under subitem (1) is not a legislative instrument.

28 Exemption from stamp duty and other State or Territory taxes

(1) No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.

(2) An exempt matter is:

(a) the vesting of an asset or liability under this Division; or

(b) the operation of this Part in any other respect.

(3) The Minister may certify in writing:

(a) that a specified matter is an exempt matter; or

(b) that a specified thing was connected with a specified exempt matter.

(4) A certificate made under subitem (3) is not a legislative instrument.

29 Certificates taken to be authentic

A document that appears to be a certificate made or issued under this Part:

(a) is taken to be such a certificate; and

(b) is taken to have been properly given;

unless the contrary is established.

Division 3 Transfer of other matters

30 Transitional - acts of WEA to be attributed to the Commonwealth

(1) This item applies to anything done by, or in relation to, WEA before the commencement time.

(2) After the commencement time, the thing has effect as if it had been done by, or in relation to, the Commonwealth.

31 Transitional - substitution of the Commonwealth as a party in certain proceedings

(1) This item applies to any proceedings:

(a) that were pending in any courtor tribunal immediately before the commencement time; and

(b) to which WEA was a party.

(2) The Commonwealth is substituted for WEA, from the commencement time, as a party to those proceedings.

32 Transitional - transfer of records to the Department

(1) This item applies to any records or documents that:

(a) were in the possession of WEA immediately before the commencement time; and

(b) relate to WEA.

(2) The records and documents are to be transferred to the Department after the commencement time.

33 Transitional - transfer of Ombudsman investigations

If:

(a) before the commencement time, a complaint was made to the Ombudsman, or the Ombudsman began an investigation, under the Ombudsman Act 1976 in relation to action taken by WEA; and

(b) immediately before the commencement time, the Ombudsman had not finally disposed of the matter in accordance with the Ombudsman Act 1976;

the Ombudsman Act 1976 applies after the commencement time as if that action had been taken by the Department.

34 References in certain instruments to Wheat Exports Australia

(1) If:

(a) an instrument is in force immediately before the commencement of this item; and

(b) the instrument contains a reference to Wheat Exports Australia;

the instrument has effect from the commencement time as if the reference to Wheat Exports Australia was a reference to the Commonwealth.

(2) The Minister may, by writing, determine that subitem (1) does not apply in relation to a specified reference.

(3) A determination under subitem (2) is not a legislative instrument.

Division 4 Other transitional matters

35 Transitional - secrecy of information obtained under the Wheat Export Marketing Act 2008

(1) This item applies in relation to the following provisions (the information provisions ) of the Wheat Export Marketing Act 2008 as in force immediately before the commencement time:

(a) the definition of WEA in section 5;

(b) the definition of WEA member in section 5;

(d) the definition of protected confidential information in section 5;

(e) Part 7.

(2) Despite the repeal of the information provisions by this Schedule, those provisions continue to apply, in relation to protected confidential information disclosed to, or obtained by, a person before the commencement time, as if those repeals had not happened and as if the following paragraph were added at the end of subsection 74(3) of that Act:

; (p) the disclosure is to an officer or employee of the Department for a purpose that is relevant to a function of the Department.

36 Appropriation of money

(1) For the purposes of the operation of an Appropriation Act after the commencement time, references to WEA are to be read as references to the Department.

(2) If an amount (the Account balance ) stands to the credit of the Wheat Industry Special Account immediately after the commencement time, the Minister must, by writing, determine that one or more specified departmental items for the Department are to be increased by specified amounts.

(3) The sum of the amounts specified in the determination must equal:

(a) if the Account balance is not more than $500,000 - the Account balance; and

(b) otherwise - $500,000.

(4) In making the determination, the Minister must comply with any written directions given by the Finance Minister.

(5) If the Minister makes a determination under subitem (2):

(a) the sum of the amounts specified in the determination is debited from the Wheat Industry Special Account; and

(b) the departmental items specified in the determination are taken to be increased in accordance with the determination.

(6) Neither a determination made under subitem (2) nor a direction under subitem (4) is a legislative instrument.

37 Compensation for acquisition of property

(1) If the operation of this Part 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 item:

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.

38 Delegation by Minister

(1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Part to a person.

(2) The delegate must be:

(a) the Secretary; or

(b) an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.

39 Transitional - regulations

(1) The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.

(2) The regulations may provide that the provisions of this Part are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified.