Dairy Industry Act 1992

(Reprint No. 2) South Australia DAIRY INDUSTRY ACT 1992 An Act to regulate the dairy industry; to establish the Dairy Authority of South Australia; to repeal the Dairy Industry Act 1928 and the Metropolitan Milk Supply Act 1946; and for other purposes. This Act is reprinted pursuant to the Acts Republication Act 1967 and incorporates all amendments in force as at 22 June 2000. It should be noted that the Act was not revised (for obsolete references, etc.) by the Commissioner of Statute Revision prior to the publication of this reprint. (Reprint No. 2) 2Dairy Industry Act 1992 DAIRY INDUSTRY ACT 1992 being Dairy Industry Act 1992 No. 77 of 1992 [Assented to 3 December 1992]1 as amended by Dairy Industry (Equalisation Schemes) Amendment Act 1995 No. 20 of 1995 [Assented to 20 April 1995] Dairy Industry (Deregulation of Prices) Amendment Act 2000 No. 24 of 2000 [Assented to 15 June 2000]2 1 Came into operation 1 July 1993: Gaz. 1 July 1993, p. 194. 2 Came into operation 22 June 2000: Gaz. 22 June 2000, p. 3304. NOTE: ùAsterisks indicate repeal or deletion of text. ùEntries appearing in bold type indicate the amendments incorporated since the last reprint. ùFor the legislative history of the Act see Appendix 1. (Reprint No. 2) Dairy Industry Act 1992 3 SUMMARY OF PROVISIONS PART 1 PRELIMINARY 1. Short title 2. Commencement 3. Interpretation PART 2 THE DAIRY AUTHORITY OF SOUTH AUSTRALIA DIVISION 1-ESTABLISHMENT OF THE AUTHORITY 4. Establishment of the Authority 5. Ministerial control DIVISION 2-THE AUTHORITY'S MEMBERSHIP 6. Composition of the Authority 7. Conditions of membership 8. Remuneration 9. Disclosure of interest 10. Member's duties of honesty, care and diligence DIVISION 3-THE AUTHORITY'S PROCEDURES 11. Proceedings PART 3 FUNCTIONS AND POWERS OF THE AUTHORITY DIVISION 1-FUNCTIONS AND POWERS 12. Functions of the Authority 13. Powers of the Authority DIVISION 2-FINANCIAL PROVISIONS 14. The Dairy Authority Administration Fund 15. Accounts and audit DIVISION 3-ANNUAL REPORT 16. Annual Report PART 4 REGULATION OF THE DAIRY INDUSTRY DIVISION 1-LICENCES 17. Licences 18. Issue of licences 19. Licence fee 20. Conditions of licence 21. Transfer of licence 22. Revocation of licence PART 5 MISCELLANEOUS (Reprint No. 2) 4Dairy Industry Act 1992 28. Advisory and consultative committees 29. Powers of inspectors 30. Hindering inspectors 31. Protection of staff 32. Review of Act 33. Regulations SCHEDULE Repeal and Transitional Provisions APPENDIX 1 LEGISLATIVE HISTORY APPENDIX 2 DIVISIONAL PENALTIES AND EXPIATION FEES (Reprint No. 2) PART 1 Dairy Industry Act 1992 5 The Parliament of South Australia enacts as follows: PART 1 PRELIMINARY Short title 1. This Act may be cited as the Dairy Industry Act 1992. Commencement 2. This Act will come into operation on a day to be fixed by proclamation. Interpretation 3. In this Act, unless the contrary intention appears "Authority" means the Dairy Authority of South Australia; "dairy farm" means any place at which animals are kept or milked for the purpose of producing dairy produce for sale; "dairy farmer" means a person who keeps or milks animals for the purpose of producing dairy produce for sale; "dairy produce" means (a) milk; or (b) reconstituted milk; or (c) a product of which at least one half the total mass consists of milk, reconstituted milk or milk solids; "inspector" means a person authorised in writing by the Minister to exercise the powers of an inspector under this Act; "market milk" means milk that has been processed for sale, but does not include any class of such milk excluded by regulation from the ambit of this definition; "milk" means the milk of any animal; "processor" means a person who carries on a business in which milk or a derivative of milk is processed to produce dairy produce for sale; "raw milk" means unprocessed milk; (Reprint No. 2) PART 1 6Dairy Industry Act 1992 "vendor" means any person who carries on a business involving the sale of dairy produce, but does not include a dairy farmer, a processor or a person who sells dairy produce only from retail shop premises. Note: For definition of divisional penalties (and divisional expiation fees) see Appendix 2. (Reprint No. 2) PART 2 Dairy Industry Act 1992 7 PART 2 THE DAIRY AUTHORITY OF SOUTH AUSTRALIA DIVISION 1-ESTABLISHMENT OF THE AUTHORITY Establishment of the Authority 4. (1) The Dairy Authority of South Australia is established. (2) The Authority is a body corporate. (3) The Authority is an instrumentality of the Crown and holds its property on behalf of the Crown. Ministerial control 5. The Authority is subject to control and direction by the Minister. DIVISION 2-THE AUTHORITY'S MEMBERSHIP Composition of the Authority 6. (1) The Authority consists of three members appointed by the Governor. (2) The Authority's membership must include at least one person with wide experience in the dairy industry. (3) One member of the Authority will be appointed by the Governor to chair meetings of the Authority. (4) The Authority may appoint a person to be the deputy of a member of the Authority, and a person so appointed may act as a member of the Authority in the absence of that member. Conditions of membership 7. (1) A member of the Authority will be appointed for a term, not exceeding three years, specified in the instrument of appointment and, at the expiration of a term of appointment, will be eligible for reappointment. (2) The Governor may remove a member of the Authority from office for (a) misconduct; or (b) failure or incapacity to carry out the duties of his or her office satisfactorily. (3) The office of a member of the Authority becomes vacant if (Reprint No. 2) PART 2 8Dairy Industry Act 1992 the member (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) is convicted of an indictable offence; or (e) is removed from office under subsection (2). Remuneration 8. A member of the Authority is entitled to such remuneration, allowances and expenses as may be determined by the Governor. Disclosure of interest 9. (1) A member who has a direct or indirect private interest in a matter under consideration by the Authority (a) must disclose the nature of the interest to the Authority; and (b) must not take part in any deliberations or decision of the Authority in relation to that matter. Penalty: Division 5 fine or division 5 imprisonment. (2) It is a defence to a charge of an offence against subsection (1) to prove that the defendant was not, at the time of the alleged offence, aware of his or her interest in the matter. (3) A disclosure under this section must be recorded in the minutes of the Authority. (4) If a member discloses an interest in a contract or proposed contract under this section and takes no part in any deliberations or decision of the Authority on the contract (a) the contract is not liable to be avoided by the Authority; and (b) the member is not liable to account for profits derived from the contract. Members' duties of honesty, care and diligence 10. (1) A member of the Authority must at all times act honestly in the performance of his or her official functions. (Reprint No. 2) PART 2 Dairy Industry Act 1992 9 Penalty (a) if an intention to deceive or defraud is proved-division 4 fine or division 4 imprisonment or both; (b) in any other case-division 6 fine. (2) A member of the Authority must at all times exercise a reasonable degree of care and diligence in the performance of his or her official functions. Penalty: Division 6 fine. (3) A member of the Authority must not make improper use of his or her official position to gain a personal advantage for himself, herself or another or to cause detriment to the Authority. Penalty: Division 4 fine or division 4 imprisonment or both. (4) A member or former member of the Authority must not make improper use of information acquired through his or her official position to gain directly or indirectly a personal advantage for himself, herself or another, or to cause detriment to the Authority. Penalty: Division 4 fine or division 4 imprisonment or both. (5) This section (a) operates both inside and outside the State; and (b) is in addition to, and does not derogate from, other laws. DIVISION 3-THE AUTHORITY'S PROCEDURES Proceedings 11. (1) The member appointed to chair meetings of the Authority will preside at meetings of the Authority or, in the absence of that member, a member chosen by those present will preside. (2) Subject to subsection (3), the Authority may act despite a vacancy in its membership or a defect in the appointment of a member. (3) Two members of the Authority constitute a quorum of the Authority and no business may be transacted at a meeting of the Authority unless a quorum is present. (Reprint No. 2) PART 2 10Dairy Industry Act 1992 (4) Each member present at a meeting of the Authority has one vote on any question arising for decision. (5) A decision carried by a majority of the votes cast by members at a meeting is a decision of the Authority. (6) A telephone or video conference between members of the Authority will, for the purposes of this section, be taken to be a meeting of the Authority at which the participating members are present. (7) A proposed resolution of the Authority (a) of which notice is given to all members of the Authority in accordance with procedures determined by the Authority; and (b) in which all members of the Authority express their concurrence in writing, is a decision of the Authority. (8) The Authority must cause accurate minutes to be kept of its proceedings. (9) Subject to this Act, the Authority may determine its own procedures. (Reprint No. 2) PART 3 Dairy Industry Act 1992 11 PART 3 FUNCTIONS AND POWERS OF THE AUTHORITY DIVISION 1-FUNCTIONS AND POWERS Functions of the Authority 12. The Authority's functions are * * * * * * * * * * (b) to determine the conditions and the fees for licences to be issued under this Act; (c) to approve, provide, or arrange for the provision of, training programs for implementing appropriate standards and codes of practice for the dairy industry; (d) to grant, or arrange for the granting of, certificates to persons who successfully complete training programs approved by the Authority; (e) to monitor the extent of compliance by the dairy industry with appropriate standards and codes of practice; (f) to carry out any other functions assigned to the Authority by or under this Act or by the Minister. Powers of the Authority 13. (1) The Authority has the powers necessary or incidental to the performance of its functions. (2) The Authority may, for example (a) enter into any form of contract or arrangement; (b) employ staff or make use of the services of staff employed in the public or private sector; (c) engage consultants or other contractors; (d) delegate any of its powers to any person or body of persons. (3) A delegation of powers by the Authority is revocable at will and does not derogate from the power of the Authority to act itself in any matter. (4) Subject to the transitional provisions, an employee of the Authority is not a member of the Public Service, but the terms and (Reprint No. 2) PART 3 12Dairy Industry Act 1992 conditions of employment of any such employee must be as approved by the Minister. DIVISION 2-FINANCIAL PROVISIONS The Dairy Authority Administration Fund 14. (1) There is to be a fund called the Dairy Authority Administration Fund. (2) The Fund will consist of (a) all fees and charges recovered under this Act; and (b) all penalties recovered for offences against this Act; and (c) any other money appropriated by Parliament for the purposes of the Fund. (3) The fund is to be applied towards the costs of administering this Act. Accounts and audit 15. (1) The Authority must keep proper accounting records of its receipts and expenditures, and must, at the conclusion of each financial year, prepare accounts for that financial year. (2) The Auditor-General may audit the accounts of the Authority at any time and must audit the accounts for each financial year. * * * * * * * * * * DIVISION 3-ANNUAL REPORT Annual Report 16. (1) The Authority must, on or before 31 October in every year, forward to the Minister a report on the administration of this Act during the year that ended on the preceding 30 June. (2) The report must include the audited accounts of the Authority for the relevant financial year. (3) The Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament. (Reprint No. 2) PART 4 Dairy Industry Act 1992 13 PART 4 REGULATION OF THE DAIRY INDUSTRY DIVISION 1-LICENCES Licences 17. (1) Licences will be of the following classes: (a) dairy farmer's licence; (b) processor's licence; (c) vendor's licence. (2) A person must not carry on business as a dairy farmer unless that person holds a dairy farmer's licence. Penalty: Division 5 fine. (3) A person must not carry on business as a processor of dairy produce unless that person holds a processor's licence. Penalty: Division 5 fine. (4) A person must not carry on business as a vendor of dairy produce unless that person holds a vendor's licence. Penalty: Division 5 fine. Issue of licences 18. (1) An application for a licence (a) must be made in writing to the Authority; (b) must be accompanied by any information and documents required by the regulations. (2) The Authority may, on receipt of an application for a licence, issue a licence. Licence fee 19. (1) A person who holds a licence must pay periodic licence fees in accordance with the regulations. (1a) Licence fees prescribed under the regulations may be differential, varying according to any factor stated in the regulations. (Reprint No. 2) PART 4 14Dairy Industry Act 1992 (2) If a periodic fee payable by the holder of the licence is in arrears for more than three months, the Authority may, by written notice given to the holder of the licence, cancel the licence. Conditions of licence 20. (1) A licence may be issued on such conditions as the Authority thinks fit. (2) The Authority may, by written notice to the holder of a licence, add to the conditions of the licence or vary or revoke a condition of the licence. (3) A person who holds a licence must not contravene or fail to comply with a condition of a licence. Penalty: Division 5 fine. Transfer of licence 21. A licence may be transferred with the consent of the Authority. Revocation of licence 22. The Authority may revoke a licence if (a) the holder of the licence ceases to carry on the business in respect of which the licence was issued; or (b) the holder of the licence contravenes or fails to comply with a condition of the licence. * * * * * * * * * * (Reprint No. 2) PART 5 Dairy Industry Act 1992 15 PART 5 MISCELLANEOUS Advisory and consultative committees 28. The Minister may establish a committee or committees of representatives of the dairy industry to obtain advice from the industry, and facilitate consultation with the industry, on matters relating to the industry or the administration of this Act. Powers of inspectors 29. (1) An inspector may enter and inspect any dairy farm or other premises in which dairy produce is produced, processed, stored or kept for sale in order to determine whether appropriate standards and codes of practice are being observed. (2) An inspector may take samples of any such dairy produce in order to determine whether the dairy produce complies with standards in force under this Act. (3) An inspector, or a person assisting an inspector, who while acting or purporting to act in the course of official duties (a) uses offensive language; or (b) hinders or obstructs, or uses or threatens to use force against, some other person knowing that he or she is not entitled to do so or without a belief on reasonable grounds that he or she is entitled to do so, is guilty of an offence. Penalty: Division 5 fine. Hindering inspectors 30. A person must not hinder or obstruct an inspector in the exercise of powers conferred by this Act. Penalty: Division 5 fine. Protection of staff 31. An inspector or other person engaged in functions related to the administration or enforcement of this Act incurs no civil liability for an act or omission in the course of the performance or purported performance of those functions. Review of Act 32. (1) The Minister must at the end of three years from the commencement of this Act review the operation of this Act. (Reprint No. 2) PART 5 16Dairy Industry Act 1992 (2) A report on the review must be prepared and laid before both Houses of Parliament. Regulations 33. (1) The Governor may make regulations for the purposes of this Act. (2) The regulations may, for example (a) require licensees generally or a particular class of licensees to comply with a code of practice prescribed or referred to in the regulations; (b) prescribe standards with which dairy produce must comply. (3) A regulation requiring compliance with a particular code of practice or prescribing standards with which dairy produce must comply may only be made if the Minister is of the opinion that the dairy industry has not itself established, or is not effectively enforcing, the appropriate standards or codes of practice. (4) A regulation may impose a fine not exceeding a division 6 fine for contravention of, or non-compliance with, the regulation. (Reprint No. 2) SCHEDULE Dairy Industry Act 1992 17 SCHEDULE Repeal and Transitional Provisions Repeal of certain Acts 1. (1) The Dairy Industry Act 1928 is repealed. (2) The Metropolitan Milk Supply Act 1946 is repealed. Transitional provisions 2. (1) The balance standing to the credit of the Dairy Industry Fund under the repealed Dairy Industry Act 1928 immediately before the commencement of this Act is to be applied by the Minister, after taking into account the advice of members of the dairy industry, for the benefit of the dairy industry. (2) On the commencement of this Act, the Metropolitan Milk Board is dissolved and the Authority succeeds to all its rights and liabilities. (3) The Authority must dispose of any herd testing equipment to which it becomes entitled under subsection (2) as directed by the Minister after appropriate consultation with associations representing the dairy industry. (4) A person who was immediately before the commencement of this Act an employee of the Metropolitan Milk Board becomes, on the commencement of this Act, an employee of the Authority without interruption of his or her continuity of employment and on the same terms and conditions. (Reprint No. 2) APPENDICES 18Dairy Industry Act 1992 APPENDIX 1 LEGISLATIVE HISTORY (entries in bold type indicate amendments incorporated since the last reprint) Section 3: definition of "authorised price equalisation scheme" inserted by 20, 1995, s. 2; repealed by 24, 2000, s. 3 definition of "farm gate price" repealed by 24, 2000, s. 3 Section 12(a): repealed by 24, 2000, s. 4 Section 15(3): repealed by 24, 2000, s. 5 Section 19(1a): inserted by 24, 2000, s. 6 Division 2 of Part 4 comprising ss. 23 - 25 and heading amended by 20, 1995, s. 3; repealed by 24, 2000, s. 7 Division 3 of Part 4 comprising ss. 26, 27 and heading amended by 20, 1995, s. 4; repealed by 24, 2000, s. 8 (Reprint No. 2) APPENDICES Dairy Industry Act 1992 19 APPENDIX 2 DIVISIONAL PENALTIES AND EXPIATION FEES At the date of publication of this reprint divisional penalties and expiation fees are, as provided by section 28A of the Acts Interpretation Act 1915, as follows: Division Maximum Maximum Expiation imprisonment fine fee 1 15 years $60 000 2 10 years $40 000 3 7 years $30 000 4 4 years $15 000 5 2 years $8 000 6 1 year $4 000 $300 7 6 months $2 000 $200 8 3 months $1 000 $150 9 - $500 $100 10 - $200 $75 11 - $100 $50 12 - $50 $25 Note: This appendix is provided for convenience of reference only.