Part 1 Preliminary
1 Name
of scheme [see Note
1]
This scheme is the Dairy Structural Adjustment
Program Scheme 2000, also known as the DSAP scheme.
2 Commencement
The scheme commences on gazettal.
3 Definitions
In the scheme, unless the contrary intention
appears:
Act means the Dairy Produce Act
1986.
anomalous circumstances payment right means a
payment right under section 11.
approved form means a form approved by the
DAA.
base year means the financial year beginning
on 1 July 1998.
eligible dairy leasing arrangement has the
meaning given by section 5.
eligible dairy sharefarming arrangement has
the meaning given by section 4.
exceptional event, in relation to a dairy
farm enterprise, means a drought, storm, flood or other natural event, or
disease suffered by livestock.
exceptional events supplementary payment right
means a payment right under section 10.
former statutory authority means a body that:
(a) was, but is no longer, a statutory
authority; and
(b) carries out substantially the same functions
as it carried out as a statutory authority.
initial payment day has the meaning given by
section 41.
milk means the market milk or manufacturing
milk.
milk revenue means the gross proceeds from
the sale of milk.
owner of a unit means the entity whose
ownership of the unit is entered on the register.
owner of land means:
(a) a person who is taken to be legal owner of
the land under the law of the State or Territory where the land is located; or
(b) if the legal owner of the land under the law
of the State or Territory where the land is located is the Crown, a statutory
authority or a former statutory authority — a person who leases the land
from the Crown, the authority or the former authority.
public officer
of a corporation means any of the following:
(a) a director or
a secretary of the corporation;
(b) a person acting under a power of attorney
from the corporation;
(c) the public officer of the corporation for
the purposes of the Income Tax Assessment Act 1936 section 252;
(d) an officer of the corporation authorised by
the corporation to do the act concerned.
quota means a right under a law of a State or
Territory to deliver a specific quantity of market milk.
register means the register kept under
section 33.
scheme means the DSAP scheme.
standard payment right means a payment right
under section 9.
support or adjustment payment means each of
the following:
(a) a payment under the Farm Help Re‑establishment
Grant Scheme 1997 under the Farm Household Support Act 1992;
(b) a re‑establishment grant under an
agreement subject to the Rural Adjustment Act 1992.
Note The following terms used in the
scheme are defined in the Act:
·
business day
·
claim
·
DAA
·
dairy cattle
·
dairy exit payment
·
dairy farm enterprise
·
dairy‑type grant (Act)
·
deliver
·
DSAP claim period
·
DSAP payment
·
DSAP payment start day
·
DSAP scheme
·
eligible interest in a dairy farm enterprise
·
entity
·
industry services body
·
manufacturing milk
·
market milk
·
non‑premium component
·
overall enterprise amount
·
payment right
·
premium component
·
quarter
·
unit.
4 Meaning
of eligible dairy sharefarming arrangement
(1) An eligible dairy
sharefarming arrangement is an arrangement between 2 or more entities:
(a) under which each entity is entitled to:
(i) a fixed percentage share of the
milk revenue of a dairy farm enterprise; or
(ii) a fixed percentage share of the
milk revenue of a dairy farm enterprise in relation to the sale of each type or
amount of milk produced by the enterprise; and
(b) where at least 1 of those entities has no
proprietary interest in:
(i) the land on which a milking shed
used by the enterprise is situated; and
(ii) quota under which the enterprise
delivers market milk.
(2) A dairy farm enterprise is subject to an eligible
dairy sharefarming arrangement if the milk revenue of the enterprise is shared
under the arrangement.
(3) An entity is a party to an eligible dairy
sharefarming arrangement if the entity is entitled to a share of the
enterprise’s milk revenue under the arrangement.
5 Meaning
of eligible dairy leasing arrangement [see Note 2]
(1) A dairy farm enterprise is subject to an eligible
dairy leasing arrangement:
(a) if quota was required for the delivery of
market milk by the enterprise in the base year, and the owner of quota used by
the enterprise leases some or all of the quota used by the enterprise to 1 or
more other entities for the purpose of delivering milk produced by the
enterprise; or
(b) if quota was not required for the delivery of
market milk by the enterprise in the base year, and the owner of land on which
a milking shed used by the enterprise is situated leases the land to 1 or more
other entities for the purpose of producing milk.
(2) An entity is a party to an eligible dairy leasing
arrangement if the entity is the lessor or lessee of quota or land mentioned in
this section.
(3) If a dairy farm enterprise is subject to an eligible
dairy leasing arrangement under paragraph (1) (a) and a lessee mentioned in
that paragraph sub‑leases some or all of the quota mentioned in that
paragraph to another entity (the sub‑lessee) for the
purpose of producing milk:
(a) the sub‑lessee is taken, for
subsection (2), to be the lessee of the quota subject to the sub‑lease;
and
(b) the lessee is taken, for subsection (2), not
to be the lessee of the quota subject to the sub‑lease.
(4) If an dairy farm enterprise is subject to an
eligible dairy leasing arrangement under paragraph (1) (b) and a lessee
mentioned in that paragraph sub‑leases some or all of the land mentioned
in that paragraph to another entity (the sub‑lessee) for
the purpose of producing milk:
(a) the sub‑lessee is taken, for
subsection (2), to be the lessee of the land subject to the sub‑lease;
and
(b) the lessee is taken, for subsection (2), not
to be the lessee of the land subject to the sub‑lease.
6 Identifying
the essential capital contribution
(1) If a dairy farm enterprise is subject to an eligible
dairy sharefarming arrangement or an eligible dairy leasing arrangement, the
entity that provides the essential capital contribution for the enterprise can be
identified in accordance with this section.
(2) The following entities are taken to have provided
the essential capital contribution required to achieve access to the market
milk premium for a dairy farm enterprise that is subject to an eligible dairy sharefarming
arrangement or an eligible dairy leasing arrangement:
(a) if all the market milk delivered by the
dairy farm enterprise in the base year was delivered against a quota — the
entity or entities that owned the quota;
(b) if paragraph (a) does not apply but at least
some market milk delivered by the dairy farm enterprise in the base year was
delivered against a quota — each of the following:
(i) the entity or entities that owned
the quota;
(ii) the entity or entities that owned
the land on which the enterprise is predominantly carried on;
(iii) the entity or entities that owned
at least 25% of the number of livestock used in, or for purposes incidental to,
the carrying on of the enterprise;
(c) if neither paragraph (a) nor paragraph (b)
applies — each of the following:
(i) the entity or entities that owned
the land on which the enterprise is predominantly carried on;
(ii) the entity or entities that owned
at least 25% of the number of livestock used in, or for purposes incidental to,
the carrying on of the enterprise.
(4) For subparagraphs (2) (b) (iii) and (2) (c) (ii),
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.
Part 2 Eligibility for payment rights
7 Types
of payment rights
There are 3 types of payment rights under the
scheme, as follows:
(a) standard payment rights;
(b) exceptional events supplementary payment
rights;
(c) anomalous circumstances payment rights.
8 Basic
eligibility criteria
An entity’s eligibility for a payment right as set
out in this Part is subject to any restrictions on the entity’s eligibility set
out in the Act or scheme.
9 Who
is eligible for a standard payment right
An entity is eligible to be granted a standard
payment right in respect of a dairy farm enterprise if:
(a) the entity held an eligible interest in the
enterprise at 6.30 pm on 28 September 1999; and
(b) the enterprise delivered milk during the base
year.
10 Who
is eligible for an exceptional events supplementary payment right
(1) An entity is eligible for an exceptional events
supplementary payment right in respect of a dairy farm enterprise if:
(a) the entity has been granted a standard
payment right in respect of the enterprise; and
(b) the DAA is satisfied that:
(i) the enterprise was affected by 1
or more exceptional events; and
(ii) as a result of 1 or more of those
events, the volume of market milk and manufacturing milk delivered by the
enterprise in the base year was less than 70% of the average annual volume of
market milk and manufacturing milk delivered by the enterprise in the
1997–1998, 1996–1997 and 1995–1996 financial years.
(2) An entity may be eligible for an exceptional events
supplementary payment right in respect of a dairy farm enterprise even if it
has already been granted 1 or more exceptional events supplementary payment
rights in respect of the enterprise, but the combined face value of the payment
rights granted to the entity must not exceed the amount worked out under
section 25.
Note Even if an entity is eligible for an
exceptional events supplementary payment right, the DAA has a discretion
whether or not to grant the payment right: see subsection 18 (3).
11 Who
is eligible for an anomalous circumstances payment right
(1) An entity is eligible
for an anomalous circumstances payment right if:
(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 base year; and
(c) the entity is taken under subsection (1A) to
have been affected by anomalous circumstances.
(1A) An entity is taken to have been affected by anomalous
circumstances if the entity held an eligible interest in a dairy farm
enterprise at 6.30 pm on 28 September 1999 but that enterprise did not
deliver milk during the base year.
(1B) For the purposes of this section, 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 base year, the dairy farm enterprise delivered market milk;
(ii) during
the base year, the dairy farm enterprise delivered manufacturing milk.
(2) An entity may be eligible for an anomalous
circumstances payment right even if it has already been granted 1 or more
anomalous circumstances payment rights, but the combined face value of the
payment rights granted to the entity must not exceed the amount worked out
under section 26.
Note Even if an entity is eligible for an
anomalous circumstances payment right, the DAA has a discretion whether or not
to grant the payment right: see subsection 18 (3).
12 Deceased
estates
(1) This section applies to an individual who had an
eligible interest in a dairy farm enterprise at 6.30 pm on 28 September 1999
(the relevant time) and who:
(a) dies after the relevant time, but before
making a claim for a payment right; or
(b) dies after making a claim for a payment
right, but before the claim for the payment right is determined.
(2) For an individual to whom paragraph 1 (a) applies,
this scheme has effect as if his or her legal personal representative had held
the eligible interest at the relevant time, and everything the individual did
that affects his or her eligibility for a payment right is taken to have been
done by his or her legal personal representative.
(3) For an individual to
whom paragraph 1 (b) applies, for the purposes of this scheme:
(a) the individual’s
legal personal representative is taken to have made the claim; and
(b) everything the individual did that affects
his or her eligibility for a payment right is taken to have been done by his or
her legal personal representative.
12A Restriction
on eligibility where support or adjustment payments
Despite the other provisions of this Part, an
entity is not eligible for the grant of a payment right in respect of a dairy
farm enterprise if:
(a) the entity has received, after 6:30 pm on 28
September 1999, a support or adjustment payment and has not paid an equal
amount to the Commonwealth by way of repayment; or
(b) the entity has applied for a support or
adjustment payment and the application for the support or adjustment payment
has not been rejected or withdrawn.
Part 3 Claiming payment rights
13 Gathering
information
The DAA must obtain and record as much information
as is practicable 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; or
(c) is likely to assist the DAA to make DSAP
payments.
14 Invitations
to make claims for payment rights
(1) The DAA must conduct a public information program
about the scheme.
(2) The public information program must include
advertisements in at least 1 national newspaper, and local and regional
newspapers circulating in all areas containing a significant dairy industry,
after the beginning of the DSAP claim period, telling entities:
(a) how they may qualify for payment rights
under the scheme; and
(b) how they can make a claim for a payment
right.
(3) The DAA must make all reasonable efforts to give an
entity a formal invitation to make a claim for a payment right if:
(a) the DAA has reasonable grounds to believe,
on the basis of information obtained under section 13, that it may be in the
interests of the entity for the entity to make a claim for a payment right; and
(b) there would be enough time for the claim to
be made before the end of the DSAP claim period if the DAA were to give the
entity a formal invitation to make the claim.
(4) However, a failure by the DAA to comply with
subsection (3) does not invalidate any action taken that is otherwise in
accordance with the scheme.
15 Claim
for payment
(1) A payment right in respect of a 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 during the
DSAP claim period or a further period after the end of the DSAP claim period
allowed by the DAA for the claim to be made.
(2) The DAA may allow a further period after the end of
the DSAP claim period for a claim to be made only if 1 or more units in another
payment right relating to the enterprise are cancelled under section 35 or 36.
(3) An entity may make a claim under subsection (1) even
if it has not received a formal invitation to make a claim.
(4) For this section:
(a) a claim must
be made in writing, and state the type of payment right being claimed; and
(b) a claim must contain sufficient information
to enable the DAA to determine the eligibility of the entity for the type of
payment right claimed and the face value of that payment right; and
(c) a claim must be signed:
(i) if the entity is a company —
by the company’s public officer;
(ii) if the entity is an individual
under the age of 18 — by a parent or guardian of the entity;
(iii) otherwise — by or on behalf
of the entity; and
(d) a claim must be sent by post, or delivered by
hand, to the DAA; and
(e) if an entity posts a claim to the DAA, the
claim is taken to be made on the day that it is posted.
16 Amending
claims and providing further information
(1) If an entity makes a claim under section 15, the
entity may amend the claim before the end of the period allowed for making the
claim under subsection 15 (1).
(2) If a claim does not satisfy the requirements of
subsection 15 (4), the DAA may ask the entity to amend the claim to
satisfy those requirements.
(3) If the DAA asks an entity to amend a claim under
subsection (2), a payment right in respect of the claim cannot be granted
until after the end of the extended period, unless, within the extended period,
the entity, or a person acting on behalf of the entity:
(a) amends the claim;
or
(b) notifies the DAA that the claimant does not
want to amend the claim.
(4) If a claim does not satisfy the requirements of
paragraph 15 (4) (b), the DAA may:
(a) ask the entity to provide further
information; and
(b) ask the entity to verify any information
contained in the claim, or any further information, by statutory declaration.
(5) If the DAA asks an entity to provide further
information, or to verify information, under subsection (4), a payment
right in respect of the claim cannot be granted unless:
(a) within the extended period, the entity, or a
person acting on behalf of the entity, complies with the request; or
(b) the DAA is satisfied that the entity cannot
comply with the request; or
(c) the DAA considers, after the end of the extended
period, in the circumstances, that the right should be granted
(6) If a request under this section is sent by post, the
entity is taken to have received the request 4 working days after the DAA
posted it.
(7) In this section:
extended period,
in relation to a claim, means the period ending at the later of:
(a) the end of the period for making the claim
under subsection 15 (1); and
(b) the end of a period of 28 days after the
entity receives the request under subsection (3) or (5) (whichever is relevant)
or, if that period is extended under subsection (8), the period as so extended.
(8) If the DAA makes a request under subsection (2) or
(4), the following apply:
(a) the DAA may, on application by the entity
making the claim, extend the period of 28 days mentioned in paragraph (7) (b);
(b) the application to extend the period must be
made within the 28 days;
(c) in determining the application, the DAA must
have regard to (among other things) the effect that the extension will have on
claims by other entities.
17 Farm
business assessment
(1) An entity is not eligible for the grant of a payment
right in respect of a dairy farm enterprise unless:
(a) a qualified financial adviser has carried
out a farm business assessment for the dairy farm enterprise that complies with
the rules in subsection (2) and signed a certificate, in the approved form,
declaring that it has done so; or
(b) the entity has carried out a farm business
assessment for the dairy farm enterprise and a qualified financial adviser has
signed a certificate, in the approved form, declaring that the assessment
complies with the rules in subsection (2); or
(c) the entity is an exempt entity.
(2) The rules are:
(a) a farm business assessment in relation to a
dairy farm enterprise must be carried out by the entity or by a qualified
financial adviser; and
(b) whether a farm business assessment is carried
out by the entity or a qualified financial adviser, the assessment must be in
writing and set out at least each of the following
in relation to the dairy farm enterprise:
(i) a summary of forecast annual income and
expenditure of the enterprise for 1999/2000 and 2000/2001 using a range of milk
projections; and
(ii) a summary of forecast assets and liabilities
(balance sheet) of the enterprise as at 30 June 2000 and 30 June 2001; and
(c) a certificate by a qualified financial
adviser, in the approved form, declaring that a farm business assessment has
been carried out (see paragraph (1) (a) or (b)) is received by the DAA.
(2A) An entity that is
required to comply with the rules in subsection (2) to be eligible for the
grant of a payment right is not prevented from making a claim for the grant of
a payment right at a time when the entity has not complied with those rules, so
long as those rules are complied with before the end of 12 months after the end
of the DSAP claim period.
(3) If an entity is
in a partnership in relation to a dairy farm enterprise, the entity is taken to
have complied with the rules in subsection (2) in relation to the enterprise if
1 or more of the other partners complies with those rules in relation to the
enterprise.
(3A) To avoid doubt, for an entity who complies with the
rules in subsection (2) before the commencement of the Dairy Structural
Adjustment Program Scheme Amendment 2000 (No. 8), the time by which those
rules must be complied with is and is taken always to have been the time at
which it complied with those rules.
(4) In this section:
exempt entity, in relation to a dairy farm
enterprise, means:
(a) a trustee of the estate of an entity who had
an eligible interest in the enterprise at 6.30 pm on
28 September 1999; or
(b) an entity who:
(i) acquired its eligible interest in
the enterprise as a beneficiary of the estate of an entity who held the interest
at 6.30 pm on 28 September 1999; and
(ii) does not continue to hold an interest in the enterprise; or
(c) an entity
which gives the DAA a statement,
signed by the entity (or, if the entity is a company, by the company’s public
officer), that the entity has exited the dairy industry after 6.30 pm on 28
September 1999.
qualified financial adviser means a person
who is:
(a) a member of 1 or more of the following
associations:
(i) CPA Australia;
(ii) Institute of Chartered Accountants
in Australia;
(iii) National Institute of
Accountants;
(iv) Australian Association of
Agricultural Consultants;
(v) Rural Financial Counselling
Service;
(vi) the Queensland Rural Adjustment
Authority; or
(b) a person approved by the DAA as being
otherwise appropriately qualified.
18 Grants
of payment rights
(1) The DAA must decide,
for each claim for a standard payment right received from an entity in
accordance with section 15:
(a) whether the entity is eligible for a
standard payment right; and
(b) if it is eligible — the face value of
the right.
(2) If, at the time the decision is made, the entity is
required to comply with the rules in subsection 17 (2) but has not complied
with those rules, a decision that the entity is eligible for a standard payment
right is taken to be a decision that the entity is eligible for a standard
payment right subject to its complying with the rules in subsection 17 (2).
(3) A decision under subsection (1) may be made subject
to the condition that the entity concerned give the DAA a declaration, signed
by a person mentioned in paragraph 15 (4) (c), to the effect that the entity
does not have a current, undetermined application for a support or adjustment
payment and, if it has received a support or adjustment payment after 6.30 pm
on 28 September 1999, it has paid an equal amount to the Commonwealth by
way of repayment.
(4) A decision under subsection (1) may be made before
the end of 30 days after the end of the DSAP claim period but, if it is not, it
must be made as soon as practicable after the end of the 30 days.
(5) If the decision under subsection (1) is that the
entity is eligible for a standard payment right, the DAA must, at the same time
but subject to the Act and the rest of this scheme, decide that the entity will
be granted a standard payment right at the time and of the face value
ascertained in accordance with subsections (6) and (7).
(6) The time at which a standard payment right is
granted is:
(a) as soon as possible after the end of the
reconsideration request period in respect of the claim concerned, consistently
with the other paragraphs in this subsection; but
(b) if the decision under subsection (1) is that
the entity is eligible for a standard payment right subject to its complying
with the rules in subsection 17 (2) — not before those rules are complied
with (but see subsection (8)); and
(c) if the decision under subsection (1) is
subject to the condition mentioned in subsection (3) — not before the
declaration mentioned in that subsection is received by the DAA; and
(d) if, by the end of the reconsideration request
period, the DAA has received a request that requires it to reconsider the
decision — not before the DAA makes a decision as a result of the
reconsideration, the effect of which is that the entity is eligible for a
standard payment right.
Note 1 If the DAA receives a request
to reconsider a decision but does not confirm, revoke or vary the decision
within 60 days, section 49 (5) says that the DAA is taken to have confirmed the
decision.
Note 2 If the decision is reviewed
by the Administrative Appeals Tribunal (see section 49), any decision
the Tribunal makes in substitution for the DAA’s decision is taken to be the
DAA’s decision and, unless the Tribunal otherwise orders, is deemed to have had
effect on and from the day on which the DAA’s decision had effect: see Administrative
Appeals Tribunal Act 1975 section 43 (6).
(7) The face value of a standard payment right granted
under this section is:
(a) the face value specified in the decision
under subsection (1); or
(b) if the DAA makes a decision as a result of
the reconsideration of a decision, the effect of which is that the entity is
eligible for a standard payment right — the face value determined on
the reconsideration.
(8) If the decision under subsection (1) is that the
entity is eligible for a standard payment right subject to its complying with
the rules in subsection 17 (2), but those rules have not been complied with by
the end of 12 months after the end of the DSAP claim period, the DAA’s decision
under subsection (5) is taken to be, and always to have been, a decision that
the entity is not to be granted a standard payment right.
(8A) If a decision under subsection (1) is that the entity
is eligible for a standard payment right subject to the condition mentioned in
subsection (3), but the declaration mentioned in subsection (3) is not given to
the DAA within 60 days after the decision comes to the entity’s attention for
the purposes of subsection 49 (1) or by 31 July 2002, whichever is later,
the decision under subsection (5) is taken to be, and always to have been, a
decision that the entity is not to be granted a standard payment right.
(8B) The DAA may, on application by the entity or of its
own motion, extend the period fixed by subsection (8A), either before or after
the period has ended.
(9) The DAA may decide, for each claim for an
exceptional events supplementary payment right or an anomalous circumstances
payment right received from an entity in accordance with section 15:
(a) whether the entity is eligible for the right
claimed; and
(b) if it is eligible:
(i) whether to grant the right; and
(ii) if it decides to grant the right
— the face value of the right and the time at which the right is granted.
(10) The DAA may grant more than one exceptional events
supplementary payment right or anomalous circumstances payment right to an
entity who is eligible for it in respect of the entity’s claim made under
section 15.
(11) The DAA must record in the register details of payment
rights granted under this section.
(12) In this section:
reconsideration request period, in relation
to a decision by the DAA under this scheme, means the period of 28 days after
the day the decision first comes to the attention of the entity who made the
claim concerned.
19 Notice
of decision
(1) If the DAA makes a decision under section 18 about a
claim for a payment right, it must give an entity who is affected by the
decision a notice setting out the decision.
(2) The notice must state
that, if the entity is dissatisfied with the decision, it may:
(a) within 28
days after receiving notice of the decision, ask the DAA to reconsider the
decision; and
(b) subject to the
Administrative Appeals Tribunal Act 1975, if dissatisfied with a
decision of the DAA made on the reconsideration confirming or varying the
decision, apply to the Administrative Appeals Tribunal for review of the
decision as confirmed or varied.
Part 4 Face value of payment rights
Division 4.1 General
20 Application
of Division
This Division applies subject to any limitation
that applies, or adjustment that is made, under Division 4.2.
21 Standard
payment right — enterprises that are not subject to sharefarming
arrangements or leasing arrangements
(1) This section applies to a dairy farm enterprise that
is not subject to an eligible dairy sharefarming arrangement or an eligible
dairy leasing arrangement.
(2) If an 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 is equal to the overall enterprise
amount.
(3) If there are 2 or more entities who had an eligible
interest in the dairy farm enterprise at 6.30 pm on 28 September 1999, the face
value of each entity’s standard payment right is:
(a) the proportion of the overall enterprise
amount that is the same as the proportion of the milk revenue of the enterprise
to which the entity was entitled at 6.30 pm on 28 September 1999; but
(b) if the entities do not agree on the
proportion of the milk revenue of the enterprise to which each of them was
entitled at 6.30 pm on 28 September 1999, or that proportion is
uncertain — the proportion of the overall enterprise amount that
corresponds most closely with the way the milk revenue of the enterprise was
shared at 6.30 pm on 28 September 1999.
22 Standard
payment right — enterprises that are subject to both sharefarming and
leasing arrangements
(1) This section applies to:
(a) a dairy farm enterprise that is subject to
both:
(i) an eligible dairy sharefarming
arrangement; and
(ii) an eligible dairy leasing
arrangement; and
(b) an entity who is a party to either of those
arrangements.
(1A) First, so much of the premium component of the overall
enterprise amount as relates to market milk delivered by the enterprise in the
base year against a particular quota is allocated to the entities who owned
that quota.
(2) Then, the face value of the payment right of the
lessor of the land on which the enterprise is predominantly carried on is
worked out in accordance with section 24 as if:
(a) the enterprise were not subject to the
sharefarming arrangement; and
(b) references in section 24 to the overall
enterprise amount were references to the overall enterprise amount less the
amounts allocated under subsection (1A) of this section.
(3) However, for subsection (2), any essential capital
contribution that was provided for the enterprise by an entity who is a party
to the sharefarming arrangement but not the leasing arrangement is taken to
have been provided by the lessee.
(4) The face value of the payment rights of the entities
who are parties to the sharefarming arrangement is worked out next by
allocating:
(a) the premium component of the overall
enterprise amount as follows:
(i) allocate to each party to the
sharefarming arrangement the amount of the premium component of the overall
enterprise amount calculated as if subsections 23 (3), (3B), (3D) and (3E)
applied and as if the reference in subsection 23 (3E) to the owner of the
enterprise were a reference to a lessee of the land on which the enterprise is
predominantly carried on;
(ii) allocate so much of the premium
component as is not allocated under subparagraph (i) (if any) to the lessor of
the land on which the enterprise is predominantly carried on; and
(b) the non‑premium component of the
overall enterprise amount among all the entities who are parties to the
eligible dairy sharefarming arrangement in the same proportions as the shares
of the milk revenue of the enterprise to which each entity was entitled at 6.30
pm on 28 September 1999.
(5) The references in subsection (4) to the overall
enterprise amount are references to the overall enterprise amount less the
amounts allocated under subsections (1A) and (2).
23 Standard
payment right — enterprises that are subject to sharefarming arrangements
(1) This section applies to:
(a) a dairy farm enterprise that is subject to
an eligible dairy sharefarming arrangement, but is not subject to an eligible
dairy leasing arrangement; and
(b) an entity who is a party to the eligible
dairy sharefarming arrangement.
(2) The face value of each entity’s standard payment
right is the total of the amounts allocated to the entity under the following
provisions of this section.
(3) So much of the premium component of the overall
enterprise amount as relates to market milk delivered by the enterprise in the
base year against a particular quota is allocated to the entities who owned
that quota.
(3A) If an amount is to be allocated to more than 1 entity
under subsection (3), each of those entities is allocated the proportion of the
amount to be allocated that is equal to its share of the quota.
(3B) The rest of the premium component of the overall
enterprise amount is allocated to the entities who are taken to have provided
the essential capital contribution required to achieve access to the market
milk premium for a dairy farm enterprise because it or they:
(a) owned the land on which the enterprise is
predominantly carried on; or
(b) owned at least 25% of the number of livestock
used in, or for purposes incidental to, the carrying on of the enterprise.
Note In cases where no market milk was
delivered by a dairy farming enterprise in the base year against a quota,
subsection (3B) will apply to the whole of the premium component of the overall
enterprise amount.
(3C) For subparagraph (3B) (b), 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.
(3D) If the premium component of the overall enterprise
amount is to be allocated to 1 or more sharefarmers under subsection (3B),
each of those sharefarmers is allocated the proportion of the amount to be
allocated that is equal to the proportion of the milk revenue of the enterprise
to which the sharefarmer was entitled at 6.30 pm on 28 September 1999.
(3E) The remainder of the premium component of the overall
enterprise amount after the application of subsections (3B) and (3D) is
allocated to the owner of the enterprise, so long as the owner is a person who
is taken to have provided the essential capital contribution required to
achieve access to the market milk premium for the dairy farm enterprise.
(4) The non‑premium component of the overall
enterprise amount is allocated to all the entities who are parties to the
eligible dairy sharefarming arrangement in the same proportions as the shares
of the milk revenue of the enterprise to which each entity was entitled at 6.30
pm on 28 September 1999.
24 Standard
payment right — enterprises that are subject to leasing arrangements
(1) This section applies
to:
(a) a dairy farm enterprise that is subject to
an eligible dairy leasing arrangement, but is not subject to an eligible dairy
sharefarming arrangement; and
(b) an entity who is a party to the eligible
dairy leasing arrangement.
(2) The face value of each entity’s standard payment
right is the total of the amounts allocated to the entity under the following
provisions of this section.
(3) So much of the premium component of the overall
enterprise amount as relates to market milk delivered by the enterprise in the
base year against a particular quota is allocated to the entity or entities who
owned that quota.
(4) The rest of the premium component of the overall
enterprise amount is allocated to the entity or entities who are taken to have
provided the essential capital contribution required to achieve access to the
market milk premium for a dairy farm enterprise because it or they:
(a) owned the land on which the enterprise is
predominantly carried on; or
(b) owned at least 25% of the number of livestock
used in, or for purposes incidental to, the carrying on of the enterprise.
Note In cases where no market milk was
delivered by a dairy farming enterprise in the base year against a quota,
subsection (4) will apply to the whole of the premium component of the overall
enterprise amount.
(4A) If an amount is to be allocated to more than 1 entity
under subsection (4), each of those entities is allocated the proportion of the
amount to be allocated in the same proportions as the derived milk revenue
shares of the entities.
(5) The non‑premium component of the overall
enterprise amount is divided among the entities who are lessees under the eligible
dairy leasing arrangement in the same proportions as the milk revenue shares of
those entities.
(6) In this section:
derived milk revenue share means:
(a) unless paragraph (aa) or (b) applies:
(i) for a lessor of the land on which
the eligible dairy farm enterprise is carried on — the proportion of the
milk revenue of the enterprise for the base year represented by the annualised
value of the lease at 6.30 pm on 28 September 1999; or
(ii) for a lessee of the land on which
the eligible dairy farm enterprise is carried on — the proportion of
the milk revenue of the enterprise for the base year represented by the total
milk revenue of the enterprise for the base year less the annualised value of
the lease at 6.30 pm on 28 September 1999; but
(aa) if the dairy farm enterprise did not come
into existence until after the start of the base year and unless paragraph (b)
applies:
(i) for a lessor of the land on which
the eligible dairy farm enterprise is carried on — the proportion of the
milk revenue of the enterprise for the base year represented by the value of
the lease attributable to that part of the base year applicable to the lease at
6.30 pm on 28 September 1999; or
(ii) for a lessee of the land on which
the eligible dairy farm enterprise is carried on — the proportion of the
milk revenue of the enterprise for the base year represented by the total milk
revenue of the enterprise for the base year less the value of the lease
attributable to that part of the base year applicable to the lease at 6.30 pm
on 28 September 1999;
(b) if the lessor and lessee do not agree on the
value of any non‑cash component of the annualised value of the lease (see
paragraph (a)) or the value of the lease attributable to that part of the
base year (see paragraph (aa)) at 6.30 pm on 28 September 1999, or
that value is uncertain — the share determined by the DAA based on the
amount the DAA determines as the most reasonable value of that component.
(7) If the proportion of the milk revenue of a dairy
farm enterprise worked out as mentioned in subparagraph (aa) (i) of the
definition of derived milk revenue share in subsection (6) (the
proportion allocated to the lessor) is more than 1, it is taken to be 1.
25 Exceptional
events supplementary payment rights
If an entity is granted an exceptional events
supplementary payment right in respect of a dairy farm enterprise, the total
face value of the payment, any other exceptional events supplementary payment
right granted to the entity in respect of the enterprise and the standard
payment right granted to the entity in respect of the enterprise must not be
more than the amount that would have been the face value of the entity’s
standard payment right if:
(a) the volume of market milk delivered by the
enterprise during the base year had been the same as the average annual volume
of market milk delivered by the enterprise in the previous 3 financial years;
and
(b) the volume of manufacturing milk delivered by
the enterprise during the base year had been the same as the average annual
volume of manufacturing milk delivered by the enterprise in the previous
3 financial years.
26 Anomalous
circumstances payment right
(1) If an entity is eligible for the grant of an
anomalous circumstances payment right, the total face value of the payment and
any other anomalous circumstances payment right granted to the entity must not
be more than the amount worked out under subsection (2).
(2) The amount is the amount that would have been the
face value of the entity’s standard payment right in respect of the enterprise
or enterprises if the enterprise or enterprises in which the entity held an
eligible interest at 6.30 pm on 28 September 1999 had delivered during the base
year (or, if the entity held an eligible interest in the enterprise or enterprises
for a part only of the base year, during that part of the base year) the milk
that was actually delivered by the enterprise, or the enterprises, in which the
entity held an eligible interest during the base year (or, if the entity held
an eligible interest in the enterprise or enterprises for a part only of the
base year, during that part of the base year).
27 Determining
face value of exceptional events supplementary payment rights and anomalous
circumstances payment rights
(1) The DAA must not grant an exceptional events
supplementary payment right or anomalous circumstances payment right to an
entity in respect of a dairy farm enterprise unless satisfied that the face
value of the right proposed to be granted, together with the face value of all
other exceptional events supplementary payment rights and anomalous
circumstances payments granted or proposed to be granted by the DAA is less
than or equal to the money available for payments for exceptional events
supplementary payment rights and anomalous circumstances payment rights.
Note The total face value of these rights
cannot exceed the amounts worked out under section 25 or 26, whichever is
relevant.
(2) If it is not enough, the DAA must determine the face
value of the exceptional events supplementary payment right or anomalous
circumstances payment right having regard to:
(a) the amount of money available for payments
for exceptional events supplementary payment rights and anomalous circumstances
payment rights; and
(b) the number of claims and anticipated claims
for such rights; and
(c) the operation of sections 25 and 26; and
(d) such other matters as the DAA considers
relevant.
(3) In this section:
money available for payments for exceptional events
supplementary payment rights and anomalous circumstances payments rights
means the amount of money in the Dairy Structural Adjustment Fund, or expected
to be credited to the Dairy Structural Adjustment Fund under clause 78 of
Schedule 2 to the Act, that would have been required to cover the standard
payment rights that would be granted under the scheme if:
(a) every standard payment right for which an
entity is eligible were claimed under section 15; and
(b) the cap mentioned in section 28 did not apply
to any entity; and
(c) no units were cancelled under section 38;
plus the total value of milk delivered by dairy farming enterprises
that would have been taken into account in working out the face values of
standard payment rights of entities that would have been eligible to be granted
a standard payment right (see section 9) if they had held eligible
interests in the dairy farming enterprise enterprises at 6.30 pm on 28 September
1999, less the amount actually required to cover the standard payment rights
that:
(d) are granted under section 18; or
(e) are claimed under section 15 and will be
granted under section 18 if the entity complies with the rules in subsection 17
(2) before the end of 12 months after the end of the DSAP claim period.
Division 4.2 Adjustment
of face value
28 $350 000 cap
(1) The total face value of payment rights granted to an
entity in respect of a particular dairy farm enterprise must not be more than
$350 000 unless 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 records; and
(b) the entity passes the 70% dairy income test.
(2) For this section, 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 base year consisted of eligible dairy income; or
(b) more than 70% of the total gross income
derived by the entity in the period from 1 July 1996 to 30 June 1999 (both
inclusive) consisted of eligible dairy income.
(3) A certification under subsection (1) must be in an
approved form.
(4) In this section:
eligible dairy company means:
(a) Alba Cheese Manufacturing Pty Ltd; or
(b) Alba Gelati Pty Ltd; or
(c) Alice’s Sorbet & Ice Cream Pty Ltd; or
(d) Ashgrove Farms Pty Ltd; or
(e) B‑d Farm Paris Creek Pty Ltd; or
(f) Borello Cheese Pty Ltd; or
(g) Cadbury Schweppes Pty Ltd; or
(h) Casa Dairy Products P/L; or
(i) Caveland
Country Pty Ltd; or
(j) De Cicco
Industries P/L; or
(k) Donnybrook
Farmhouse Cheese; or
(l) Elgaar
Farm (Gretschmann); or
(m) European
Cakes and Gelati; or
(n) Farmhouse
Cheeses of Kangaroo Island; or
(o) Ferraro
Dairy Foods; or
(p) Floridia
Cheese (T & A Montallto); or
(q) Fonti
Dairy Foods Pty Ltd; or
(r) Fresh
Cheese Supply Group; or
(s) Harvey
Fresh Dairies; or
(t) Healey’s
Pyengana Cheese Factory; or
(u) Heidi
Farm Cheese (Marchand F & E); or
(v) Hillwood
Cheeses; or
(w) Jalna
Dairy Foods Pty Ltd; or
(x) Jindi
Cheese; or
(y) Kimberley
Milk; or
(z) King
Island Dairies Pty Ltd; or
(aa) King
Island Fresh Milk Products; or
(ab) King
Island Milk Supply; or
(ac) Kraft
Foods Ltd; or
(ad) Lacrum
Cheese P/L; or
(ae) Lactos
P/L; or
(af) Lemnos
Cheese Pty Ltd; or
(ag) Malanda
Dairyfoods Limited; or
(ah) McCain
Foods (Aust) Pty Ltd; or
(ai) Moura
Dairy Supplies; or
(aj) Mundella
Dairy; or
(ak) National
Foods Pty Ltd; or
(al) Native
Valley Farmgate Produce; or
(am) Nestle
Australia Ltd; or
(an) Northchoice
Foods P/L ‑ Darwin NT; or
(ao) P B Foods
(Peters and Browns); or
(ap) Pantalica
Cheese Company; or
(aq) Parmalat
Australia P/L; or
(ar) Pauls Ltd;
or
(as) Perfection
Dairies; or
(at) Peters
Foods; or
(au) Pine
Heights P/L; or
(av) Rose
Valley Cheese Co P/L; or
(aw) Rowlands
Corporation Ltd NT; or
(ax) Snowy
Mountains Organic Dairy Products; or
(ay) Sudano
Cheese Co; or
(az) Swan
Valley Cheese Company; or
(ba) Tamar
Valley Dairy; or
(bb) Tarago
River Cheese Co P/L; or
(bc) Timboon
Farmhouse Cheese Pty; or
(bd) Top
Paddock Cheeses; or
(be) Treven
Vale Proprietors; or
(bf) Tsantis
Bros; or
(bg) Victorian
Food and Beverages Pty Ltd; or
(bh) Wesmilk;
or
(bi) Westernport
Dairy Farm; or
(bj) Westhaven
Dairy; or
(bk) a company that received the majority of its
income during the base year from the sale of milk or other dairy products, or
from the sale or lease of dairy cattle.
eligible dairy cooperative means:
(a) Bega Co‑operative Society Ltd; or
(b) Bonlac Foods Ltd; or
(c) Dairy Farmers Group; or
(d) Hastings
Co‑op; or
(e) Murray‑Goulburn Co‑op Company
Ltd; or
(f) Norco Co‑operative Society Ltd; or
(g) Tas Quality Milk Co‑op Society
Limited; or
(h) Tatura Milk Industries Ltd; or
(i) United Milk Tasmania Ltd; or
(j) Warrnambool Cheese & Butter Factory Co.
Ltd; or
(k) Wesfarmers Ltd.
eligible dairy income includes only:
(a) proceeds from the sale of milk; and
(b) proceeds from the sale or lease of dairy
cattle; and
(c) dividends payable in respect of shares in
eligible dairy cooperatives; and
(d) dividends payable in respect of shares in
eligible dairy companies; and
(e) the income test value of bonus shares issued
by eligible dairy cooperatives; and
(f) the income test value of bonus shares issued
by eligible dairy companies.
income test value, in relation to bonus
shares issued by a company or cooperative, means the paid‑up value of the
shares to the extent to which the paid‑up value represents a
capitalisation of the profits of the company or cooperative.
qualified financial adviser means a person
who is a member of 1 or more of the following associations:
(a) CPA Australia;
(b) Institute of Chartered Accountants in
Australia;
(c) National Institute of Accountants.
total gross income means total gross income
worked out in accordance with generally accepted accounting principles.
Note Under subclause 16 (6) of Schedule 2
to the Act, if a share in an eligible dairy cooperative or an eligible dairy
company is issued to a shareholder in the cooperative or company in lieu of a
payment for the sale of milk, the shareholder is taken to have received the
payment as proceeds from the sale of milk.
29 Transfer
of market milk delivery rights
(1) This section applies to an entity with an eligible
interest in a dairy farm enterprise if, between 1 July 1998 and
28 September 1999 (inclusive) (the relevant dates), the
entity:
(a) transferred quota to another entity; or
(b) surrendered quota; or
(c) acquired quota by transfer from another
entity; or
(d) received a grant of quota from the dairy
industry authority (however described) of a State or Territory.
(2) If this section applies, the enterprise is taken to
have delivered, using quota provided by the entity, during the base year:
(a) an amount of market milk equal to the amount
the enterprise actually delivered using quota provided by the entity, plus any
adjusted net change in the entity’s delivery rights between the relevant dates;
and
(b) an amount of manufacturing milk equal to the
amount the enterprise actually delivered, less any adjusted net change in the
entity’s delivery rights between the relevant dates.
(3) In subsection (2):
adjusted net change in the entity’s delivery rights means
an amount worked out in accordance with the following formula:
where:
A means the volume of quota the entity
acquired by transfer from another entity.
ANCDR means the adjusted net change in the
entity’s delivery rights.
R means the volume of quota granted to the
entity between the relevant dates.
S means the volume of quota the entity
surrendered between the relevant dates.
T means the volume of quota the entity
transferred to another entity between the relevant dates.
Total deliveries, for a State or Territory,
means the total volume of deliveries of market milk made by all entities in the
State or Territory during the base year.
Total rights, for a State or Territory,
means the total volume of quota held by all entities in the State or
Territory during the base year.
30 Abnormal
market milk pool distributions
(1) This section applies if, in the base year, 1 or more
dairy farm enterprises in a pooling jurisdiction did not receive payment at the
market milk rate for the same proportion of their milk deliveries as
other dairy farm enterprises in the jurisdiction.
(2) However, this section does not apply to:
(a) a dairy farm in South Australia that was not
bound by the voluntary price equalisation scheme known as the South Australian
Market Milk Equalisation Agreement approved under section 26 of the Dairy
Industry Act 1992 of South Australia; or
(b) a dairy farm enterprise in Victoria that does
not deliver milk to an authorised agent within the meaning of section 49 of the
Dairy Industry Act 1992 of Victoria.
(3) If this section applies, the DAA must determine, for
each dairy farm enterprise in relation to which 1 or more claims for payment
rights have been received:
(a) the amount of market milk that the
enterprise would have delivered if it had received payment at the market milk
rate for the same proportion of its eligible milk deliveries during the base
year as other dairy farm enterprises in the jurisdiction; and
(b) the amount of manufacturing milk that the
enterprise would have delivered if it had received payment at the market milk
rate for the same proportion of its eligible milk deliveries during the base
year as other dairy farm enterprises in the jurisdiction.
(3A) For subsection (3), do not count the amount of milk
deliveries of market milk that were not covered by State pooling arrangements
embodied in, or that operated under:
(a) the voluntary price equalisation scheme
known as the South Australian Market Milk Equalisation Agreement approved under
section 26 of the Dairy Industry Act 1992 of South Australia; or
(b) the Dairy Industry Act 1992 of
Victoria; or
(c) the Dairy
Industry Act 1994 of Tasmania.
Note Deliveries of market milk not
covered by these State pooling arrangements are dealt with under other
provisions of this scheme.
(4) The sum of the amount of market milk and
manufacturing milk that the DAA determines an enterprise would have delivered
during the base year, together with milk not counted because of subsection
(3A), must be equal to the amount of milk that the enterprise actually
delivered during the year.
(5) For the scheme, each enterprise is taken to have
delivered, during the base year, the amount of market milk, and the amount of
manufacturing milk, determined under subsection (3).
(6) In this section:
eligible milk deliveries means deliveries of
milk that satisfies the requirements for market milk under the law of the State
or Territory in which the milk is delivered.
pooling jurisdiction means a State or
Territory in which enterprises were not required to hold quota to deliver
market milk during the base year.
Part 5 Units in payment rights
Division 5.1 General
31 Number
of units in a payment right
(1) Each payment right consists of a number of units
worked out in accordance with the following procedure:
(a) divide the face value of the payment right
by 32;
(b) if the result is a whole number of dollars,
that number is the number of units in the payment right;
(c) if the result is less than $1, there is 1
unit in the payment right;
(d) if the result is more than $1, but is not a
whole number of dollars:
(i) round the result up or down to the
nearest whole number (rounding up in the case of a number exactly half‑way
between 2 whole numbers); and
(ii) the rounded number is the number
of units in the payment right.
(2) However, the number of units in a payment right may
be affected by action taken by the DAA under Division 5.2.
32 Transfer
of units
(1) The owner of a unit may:
(a) transfer ownership of the unit to another
entity; or
(b) grant a charge over the unit to another
entity.
(2) However, the owner of a unit must not:
(a) dispose of the unit by way of a declaration
of trust; or
(b) transfer a beneficial interest in the unit
independently of the legal interest in the unit; or
(c) transfer ownership of a unit over which a
charge is registered.
(3) A purported disposal or transfer that contravenes
subsection (2) is of no effect.
(4) If an individual who owns a unit dies, ownership of
the unit is transferred to the individual’s estate.
(5) A transfer of ownership or grant of a charge is of
no effect unless it is registered under section 33.
(6) To avoid doubt, subsections (2) and (5) apply in
relation to a transfer to a person as beneficiary of the estate of a deceased
holder of units.
33 Register
of units
(1) The DAA must keep a
register showing the following particulars of each unit:
(a) for the entity who owns the unit:
(i) the entity’s name and address; and
(ii) if the entity tells the DAA its
Australian Business Number (within the meaning of the A New Tax System
(Australian Business Number) Act 1999) — that number; and
(iii) if the entity is a corporation,
the entity’s Australian Company Number or Australian Registered Body Number
(within the meaning of the Corporations Act 2001); and
(iv) details of the account nominated by
the entity to receive payments; and
(v) the number of units owned by the
entity; and
(vi) whether the entity has applied for
a dairy exit payment or a dairy‑type grant;
(b) for each charge over the unit:
(i) the name and address of the entity
in whose favour the charge is granted; and
(ii) the amount of the charge;
(c) details of payments that have been made in
relation to the unit;
(d) a register identification number.
(2) If an entity transfers ownership of a unit, or
grants a charge over a unit, either party to the transaction may notify the DAA
about the transaction.
(3) If a charge over a unit is discharged, the entity in
whose favour the charge was granted may notify the DAA that the unit is no
longer subject to the charge.
(4) A notice under subsection (2) or (3) must be in an
approved form.
(4A) A notice under subsection (2) must include a
declaration by the transferee or, if the transferee is a corporation, its
public officer, certifying that the documents effecting the transfer or the
grant of the charge have been stamped as required by a law of a State or
Territory that relates to stamp duty.
(5) If the DAA receives notice of a transaction under
subsection (2) or (3), it must amend the register to show the revised
details of the unit, and the date of the transaction.
(6) However, a transfer of the ownership of a unit may
only be registered if:
(a) the transferee:
(i) is a primary producer; or
(ii) acquires ownership of the unit as
the beneficiary of a deceased estate; or
(iii) is already the registered owner
of 1 or more units, unless the transferee is a bank or other financial
institution; or
(b) the transferee gives the DAA a written
undertaking to transfer the unit to a primary producer within 60 days after the
transfer is registered.
Note If the entity breaches this
undertaking, the DAA may commence procedures leading to cancellation of the
unit: see section 37.
(6A) Despite subsection (5), the DAA must not give effect
to a direction, notice or request in respect of a matter specified in paragraph
33 (1) (a) from an entity who owns a unit that is subject to a registered
charge unless:
(a) the chargee has joined in or agreed to the
direction, notice or request; or
(b) the DAA has given at least 14 days written
notice to the chargee.
This subsection does not
affect the operation of section 46.
(7) The DAA may keep the register in electronic form.
(8) In this section:
primary producer has the same meaning as in
section 157 of the Income Tax Assessment Act 1936.
34 Inspection
of register
If the owner of a unit, or another person with the
owner’s written consent, asks the DAA to do so, the DAA must:
(a) allow the owner or other person to inspect
an entry in the register relating to the unit; or
(b) give the owner or other person a copy of an
entry in the register relating to the unit.
Division 5.2 Cancellation of units
35 Cancellation
of units — false statement
(1) Subsection (2) applies if:
(a) before a payment right is granted, an entity
makes a false statement to a person exercising powers, or performing functions
under or in connection with Part 2 of Schedule 2 to the Act or the scheme; and
(b) a payment right is granted because of the
making of the false statement.
(2) If this subsection applies, the DAA may cancel all
of the units in the payment right.
(3) Subsection (4) applies if:
(a) before a payment right is granted, an entity
makes a false statement to a person exercising powers, or performing functions
under or in connection with Part 2 of Schedule 2 to the Act or the scheme; and
(b) as a result of action taken relying on the
false statement, the face value of the payment right exceeds the amount that
would have been the face value if the false statement had not been made.
(4) If this subsection applies, the DAA may cancel the
number of units in the payment right worked out by:
(a) dividing the number of whole dollars in the
amount of the excess by 32; and
(b) if the result of the division is not a whole
number — rounding down to the nearest whole number (treating zero as a
whole number).
(5) In this section:
false statement has the same meaning as in
clause 50 of Schedule 2 to the Act.
Note If a unit is cancelled under this
section, Schedule 2 to the Act and the scheme have effect as if the unit had
never existed: see subclause 50 (2) of Schedule 2 to the Act.
36 Cancellation
of units — error by the DAA
(1) Subsection (2)
applies if:
(a) the DAA makes an error in relation to the
grant of a payment right; and
(b) section 35 does not apply; and
(c) the payment right would not have been
granted if the DAA had not made the error.
(2) If this subsection applies, the DAA may cancel all
of the units in the payment right.
(3) Subsection (4) applies if:
(a) the DAA makes an error in relation to the
grant of a payment right; and
(b) section 35 does not apply; and
(c) as a result of the error, 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 the error.
(4) If this subsection applies, the DAA may cancel the
number of units in the payment right worked out by:
(a) dividing the number of whole dollars in the
amount of the excess by 32; and
(b) if the result of the division is not a whole
number — rounding down to the nearest whole number (treating zero as a
whole number).
(5) However, the DAA must not cancel a unit in a payment
right under this section if:
(a) 1 or more DSAP payments in respect of the
unit are made before the DAA becomes aware of the error; and
(b) the DAA is satisfied that the entity, or each
of the entities, that received the payment, or payments, acted in good faith.
Note If a unit is cancelled under this
section, Schedule 2 to the Act and the scheme have effect as if the unit had
never existed: see subclause 51 (3) of Schedule 2 to the Act.
(6) Subsection (5) does
not apply in respect of a unit if each of the following agrees in writing to
the cancellation of the unit:
(a) the entity
who is the registered owner of the unit;
(b) if a charge is registered in respect of the
unit — the entity in whose favour the charge has been granted.
The agreement may be on
terms the DAA thinks proper.
36A Variation
where unit entitlement less than proper amount
(1) If at any time the DAA becomes aware that the face
value of a payment right as determined under another provision of this scheme
is less than the proper amount:
(a) it may, with or without an application to do
so, vary the determination of the face value so that it is the proper amount;
and
(b) do whatever is necessary (including amending
the register) to give effect to the variation.
(2) A variation takes effect from the day on which it is
made or, if another day is specified for that purpose in the notice under
section 39 in relation to the variation, that other day.
(3) Subsection (1) does not affect the operation of
Division 4.1 or 4.2.
37 Cancellation
of units — breach of undertaking to transfer the units
(1) Subsection (2)
applies if:
(a) an entity (the first entity)
gives the DAA an undertaking under paragraph 33 (6) (b) to transfer a unit to a
primary producer; and
(b) the first entity breaches the undertaking.
(2) If this subsection applies, the DAA may give the
first entity a notice directing it to comply with the undertaking before the
end of a period of 60 days beginning when the direction is given.
(3) The DAA may cancel the unit if:
(a) the DAA gives a notice under subsection (2)
to an entity; and
(b) the entity contravenes the direction.
Note If a unit is cancelled under this
section, the cancellation takes effect from the end of the 60‑day
period: see subclause 52 (2) of Schedule 2 to the Act.
38 Cancellation
of units — dairy exit payment becomes payable
(1) Subsection (2) applies if:
(a) an entity has been granted a payment right
in relation to a dairy farm enterprise; and
(b) a decision is made:
(i) under the DEP scheme that the
entity is qualified for a dairy exit payment in relation to the enterprise; or
(ii) under the farm help re‑establishment
grant scheme (within the meaning of the Farm Household Support Act 1992)
that the entity is qualified for a dairy‑type grant; and
(c) immediately before the decision is made, the
entity is the registered owner of 1 or more unencumbered units in the payment
right.
(2) If this subsection applies, the DAA may cancel the
unit or units.
(3) In this section:
unencumbered unit means a unit over which no
charge is registered.
Note If a unit is cancelled under this
section, the cancellation takes effect from the time when the decision is made
under the DEP scheme: see subclause 53 (2) of Schedule 2 to the Act.
39 Notice
of decision
(1) If the DAA cancels a
unit under section 35, 36, 37 or 38 or varies a determination as mentioned in
section 36A, the DAA must give the entity who owned the unit a notice:
(a) setting out the decision (the initial
decision), and the reasons for it; and
(b) stating that:
(i) the entity may, if dissatisfied
with the initial decision, seek its reconsideration by the DAA; and
(ii) the entity may, subject to the Administrative
Appeals Tribunal Act 1975, if dissatisfied with a reconsidered decision
made by the DAA confirming or varying the initial decision, apply to the
Administrative Appeals Tribunal for review of the reconsidered decision.
(2) If the DAA:
(a) cancels a unit under section 36 with the
consent of a chargee as mentioned in subsection 36 (6); or
(b) varies a determination as mentioned in
section 36A in respect of a payment right some or all of the units in which are
subject to a registered charge;
it must give a copy of the notice to the chargee at the same time
as it gives the notice to the entity.
Part 6 Making payments
40 General
(1) A DSAP payment must not be made before:
(a) the DSAP payment start day; or
(b) the end of the 30‑day period beginning
at the end of the DSAP claim period.
(2) A DSAP payment must not be made for a quarter that
is later than the quarter ending on 30 June 2008.
(3) In this Part, a reference to a quarter
is a reference to a quarter in the period beginning on 1 July 2000 and ending
on 30 June 2008.
41 Initial
payment day
(1) The initial payment day for each payment right is
worked out in accordance with this section.
(2) If, during the 28‑day period beginning at the
end of the 30‑day period mentioned in paragraph 40 (1) (b), the DAA does
not receive a request that requires it to reconsider a decision in relation to
the grant of the payment right, the initial payment day for the right is the
first day after the end of that 28‑day period.
(3) Subsection (4) applies if:
(a) during the 28‑day period beginning at
the end of the 30‑day period mentioned in paragraph 40 (1) (b), the DAA
receives a request that requires it to reconsider a decision in relation to the
grant of the payment right; and
(b) on reconsideration, the DAA confirms its
decision or varies it in a way that still involves the grant of the payment
right; and
(c) no application is made to the Administrative
Appeals Tribunal for review of the decision within 28 days after:
(i) the DAA gives notice of the
reconsidered decision to an entity who is affected by the decision; or
(ii) if the DAA is taken, under section
49 (5), to have confirmed the decision — the end of 60 days after the DAA
received the request to reconsider the decision.
(4) If this subsection applies, the initial payment day
for the right is the first day after the end of the 28‑day period
mentioned in paragraph (3) (c).
(5) Subsection (6) applies if:
(a) during the 28‑day period beginning at
the end of the 30‑day period mentioned in paragraph 40 (1) (b), the DAA
receives a request that requires it to reconsider a decision in relation to the
grant of the payment right; and
(b) on reconsideration, the DAA confirms or
revokes its decision or varies it in any way; and
(c) within 28 days after:
(i) the DAA gives notice of the
reconsidered decision to an entity who is affected by the decision; or
(ii) if the DAA is taken, under section
49 (5), to have confirmed the decision — the end of 60 days after the DAA
received the request to reconsider the decision;
an application has been made to the
Administrative Appeals Tribunal for review of the decision; and
(d) either:
(i) on review, the Administrative
Appeals Tribunal confirms the decision, varies it in a way that still involves
the grant of the payment right or dismisses the application for review (for
whatever reason); or
(ii) the applicant withdraws the
application for review.
(6) If this subsection applies, the initial payment day
for the right is the first day after the Administrative Appeals Tribunal
confirms or varies the decision or dismisses the application, or the
application is withdrawn (whichever is relevant).
(6A) If it is not possible to work out, in accordance with
the preceding provisions of this section, the initial payment day for a payment
right, the initial payment day for the payment right is worked out by applying
the preceding provisions of this section as if the references in them to the 28‑day
period beginning at the end of the 30‑day period mentioned in paragraph
40 (1) (b) were references to the 28‑day period beginning when the
decision to which the payment right relates first came to the attention of the
entity affected by it.
Note For example, it will not be possible
to work out, in accordance with the preceding provisions of this section, the
initial payment day for a payment right that is granted after the 28‑day
period beginning at the end of the 30‑day period mentioned in paragraph
40 (1) (b).
(7) However, if the initial payment day worked out under
subsection (2), (4), (6) or (6A) is earlier than the DSAP payment start day,
the initial payment day is the DSAP payment start day.
42 Initial
payment
(1) If an entity is the registered owner of a unit in a
payment right on the initial payment day for the payment right, the industry
services body must pay to the entity, out of the Dairy Structural Adjustment
Fund, for each unit in the payment right, the sum of:
(a) $1 for the quarter in which the initial
payment day occurs; and
(b) $1 for each earlier quarter (if any).
(2) However, if a payment right is granted to an entity
after the initial payment day for the payment right worked out in accordance
with section 41, the industry services body must pay to the entity, out of
the Dairy Structural Adjustment Fund, for each unit in the payment right, the
sum of:
(a) $1 for the quarter in which the payment
right is granted; and
(b) $1 for each earlier quarter (if any).
43 Subsequent
payments
(1) If an entity is the registered owner of a unit in a
payment right (granted on or before the initial payment day) on the first day
of a quarter after the quarter in which the initial payment day occurs, the
industry services body must pay to the entity, out of the Dairy Structural
Adjustment Fund, for each unit in the payment right, $1 for that quarter.
(2) If an entity is the registered owner of a unit in a
payment right (granted after the initial payment day) on the first day of a
quarter after the quarter in which payment right was granted, the industry
services body must pay to the entity, out of the Dairy Structural Adjustment
Fund, for each unit in the payment right, $1 for that quarter.
44 When
payment must be made
(1) Subject to section 46, if an entity is entitled to
be paid a DSAP payment, the payment is due before the end of the 10th business
day after:
(a) if subsection 42 (1) applies — the
initial payment day; or
(b) if subsection 42 (2) applies — the day
the payment right is granted; or
(c) if section 43 applies — the first day
of the quarter.
(2) 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.
(3) 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 the payment is payable to the individual’s estate.
45 How
payment must be made
If a DSAP payment is to be made, it must be paid by
electronic funds transfer to an account held by the entity with a bank or other
financial institution.
46 Withholding
payments at request of entity [see Note 3]
(1) This section applies
if:
(a) a payment right has been granted to an
entity; and
(b) the entity has applied for a dairy‑type
grant.
(2) If this section applies, the entity may ask the DAA,
in writing, to withhold further DSAP payments that become payable to the entity
in respect of the payment right until the application for the dairy‑type
grant is determined.
(3) If the DAA receives a request under subsection (2),
it must withhold DSAP payments that become due to the entity after the DAA
receives the request until:
(a) the DAA receives notice that the entity’s
application for a dairy‑type grant has been rejected; or
(b) the entity tells the DAA, in writing, that it
is no longer pursuing the dairy‑type grant; or
(c) the DAA receives notice that the entity’s
claim for the dairy‑type grant has been determined; or
(e) if the notice related to an application for
a dairy‑type grant and the entity does not lodge a claim for a dairy‑type
grant before 1 December 2004 — 1 December 2004 .
(4) If the entity’s payment right is cancelled under
section 38, the entity’s entitlement to the withheld payments is cancelled.
(5) If the entity’s application or claim for a dairy‑type
grant is rejected, or the entity tells the DAA, in writing, that it is no
longer pursuing the grant:
(a) the DSAP payments that have been withheld
are due to be paid to the entity before the end of the 10th business day after
the DAA receives the notice; and
(b) DSAP payments that become payable to the entity
after the DAA receives the notice are payable in accordance with section 44.
(7) If paragraph (3) (e)
applies:
(a) the DSAP
payments that have been withheld are due to be paid to the entity before the
end of the 10th business day after 30 September 2008; and
Part 7 Miscellaneous
47 Fees
(1) The following fees are payable under the scheme:
(a) for registration of a transaction mentioned
in subsection 33 (2) involving a unit in a payment right
(subsection 33 (5)) — $50;
(b) for registration of the discharge of a charge
over a unit (subsection 33 (5)) — $50;
(c) for inspection of an entry in the register,
or issuing a copy of an entry in the register (section 34) — $50.
(2) However, the fee is not payable if the transaction,
discharge inspection or issue takes place within 6 months after:
(a) the payment right containing the unit is
granted; and
(b) the reconsideration and, if applicable,
review periods for decisions in relation to the grant of the payment right have
expired; and
(c) all requests for reconsideration of
decisions in relation to the grant of the payment right have been dealt with;
and
(d) any review by the Administrative Appeals
Tribunal of a decision in relation to the grant of the payment right has been
concluded.
(3) The fee mentioned in paragraph (1) (a) is payable by
the transferor or entity granting the charge.
(4) The fee mentioned in paragraph (1) (b) is payable by
the entity in whose favour the charge was granted.
(5) The fee mentioned in paragraph (1) (c) is payable by
the entity inspecting the entry or receiving the copy.
(6) If an entity inspects an entry in the register, and
asks for a copy of the same entry at the same time, the fee mentioned in
paragraph (1) (c) is payable once only.
48 Remission
of penalties
If an amount of penalty is payable under clause 49
of Schedule 2 to the Act, the DAA may remit the whole or a part of that
amount.
49 Reconsideration
and review of decisions
(1) An entity who is affected by a decision of the DAA
under the scheme may, by notice given to the DAA within 28 days after the
decision comes to its attention, ask the DAA to reconsider the decision.
(1A) A request under subsection (1) for reconsideration of
a decision that involved or depended on the allocation of components of an
overall enterprise amount is taken to be a request under that subsection for
reconsideration of all the decisions that involved or depended on the
allocation of those components.
(2) For subsection (1), if the DAA sends a notice of
decision to an entity by post, the notice is taken to have come to the entity’s
attention at the end of 4 working days after the DAA posts it.
(3) A request under subsection (1) must set out the
reasons for making the request.
(4) If the DAA receives a request under subsection (1),
it:
(a) must reconsider each decision to which the
request relates as soon as practicable after receiving the request; and
(b) may:
(i) confirm the decision; or
(ii) revoke the decision; or
(iii) vary the decision in whatever way
the DAA thinks fit.
(5) If the DAA does not confirm, revoke or vary a
decision within 60 days after the day on which it receives a request that
requires it to reconsider the decision, the DAA is taken to have confirmed the
decision at the end of that period.
(6) If the DAA, confirms, revokes or varies a decision
before the end of the period mentioned in subsection (5), the DAA must give an
entity who is affected by the decision a notice:
(a) setting out the result of the
reconsideration and the reasons for confirming, revoking or varying the
decision, as the case may be; and
(b) stating that the entity may, subject to the Administrative
Appeals Tribunal Act 1975, if dissatisfied with the decision confirmed or
varied, apply to the Administrative Appeals Tribunal for review of the
decision.
(7) If the DAA confirms or varies a decision under
subsection (4), an entity who is affected by the decision may apply to the
Administrative Appeals Tribunal for review of the decision in accordance with
the Administrative Appeals Tribunal Act 1975.
50 Certain
things may be done electronically
(1) The provisions of Part 2 of the Electronic
Transactions Act 1999 apply as provisions of this scheme and so apply as if
the references in that Part to a law of the Commonwealth were references to
this scheme.
(2) The DAA may, in approving a form for the purposes of
this scheme or otherwise:
(a) fix requirements as to particular kinds of
electronic communication and as to methods of signature or identification; and
(b) designate information systems.
(3) Subsection (1) does
not:
(a) apply a provision in respect of regulations
under the Electronic Transactions Act 1999, a provision with respect to
exemptions under that Act or a provision with respect to copyright; or
(b) apply in relation to:
(i) making a claim for a standard
payment right;
(ii) certification under section 17 (relating
to farm business assessments);
(iii) certification under section 28 (relating
to access to an entity’s accounts);
(iv) making a claim for an anomalous circumstances
payment right;
(v) making a claim for an exceptional
events supplementary payment right;
(vi) amending a claim for a payment
right;
(vii) any other matter specified in a
written determination of the DAA.