Horticulture Marketing and Research and Development Services (Transfer of Industry Assets and Liabilities) Regulation 2014
 
Select Legislative Instrument No. 140, 2014
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.
Dated 02 October 2014
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Barnaby Joyce
Minister for Agriculture
 
  
   
Contents
Part 1—Preliminary                                                                                                             1
1............ Name................................................................................................... 1
2............ Commencement................................................................................... 1
3............ Authority............................................................................................. 1
4............ Application of this instrument............................................................. 1
5............ Definitions.......................................................................................... 1
Part 2—Transfer of industry assets and liabilities (other than statutory records) of Horticulture Australia Limited                                                                                                3
6............ Industry assets and liabilities (other than statutory records) of Horticulture Australia Limited become industry assets and liabilities of the next industry services body........................................ 3
7............ Certificates for vesting of certain assets.............................................. 4
8............ Exemption from State and Territory stamp duty and other taxes......... 4
Part 3—References to Horticulture Australia Limited, legal proceedings and statutory records            6
9............ References in instruments to Horticulture Australia Limited............... 6
10.......... Substitution of parties to proceedings................................................. 7
11.......... Transfer of custody of statutory records of Horticulture Australia Limited              7
 
Part 1—Preliminary
  
1  Name
                   This is the Horticulture Marketing and Research and Development Services (Transfer of Industry Assets and Liabilities) Regulation 2014.
2  Commencement
                   This instrument commences on the day after it is registered.
3  Authority
                   This instrument is made under the Horticulture Marketing and Research and Development Services Act 2000.
Note:          See paragraph 11(2)(d) of that Act.
4  Application of this instrument
                   This instrument does not apply unless the Minister has declared, under subsection 11(1) of the Act, that the industry assets and liabilities in relation to Horticulture Australia Limited are to be transferred, under this instrument, to a person or body specified in the declaration.
5  Definitions
Note:          A number of expressions used in this instrument are defined in the Act, including the following:
(a)    industry assets and liabilities;
(b)    industry services body;
(c)    statutory record.
                   In this instrument:
Act means the Horticulture Marketing and Research and Development Services Act 2000.
assets official means the person or authority who, under a law of the Commonwealth, a State or a Territory, or under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.
exempt matter means:
                     (a)  the vesting of an industry asset or liability under this instrument; or
                     (b)  the operation of this instrument in any other respect.
Horticulture Australia Limited (ABN 19 095 566 108) means the body that was the industry services body and the industry export control body under the Act immediately before the transfer day.
next industry services body means the body that the Minister has declared, or proposes to declare, under section 9 of the Act, to be the next industry services body after Horticulture Australia Limited ceases to be the industry services body under the Act.
Note:          See paragraph 11(1)(a) of the Act.
transfer day means the day specified in a declaration made by the Minister under subsection 11(1) of the Act as the day on which the industry assets and liabilities in relation to Horticulture Australia Limited are to be transferred, under this instrument, to a person or body specified in the declaration.
Part 2—Transfer of industry assets and liabilities (other than statutory records) of Horticulture Australia Limited
  
6  Industry assets and liabilities (other than statutory records) of Horticulture Australia Limited become industry assets and liabilities of the next industry services body
             (1)  On the transfer day, the industry assets and liabilities (other than statutory records) in relation to Horticulture Australia Limited immediately before that day:
                     (a)  cease to be industry assets and liabilities of Horticulture Australia Limited; and
                     (b)  become industry assets and liabilities of the next industry services body without any conveyance, transfer or assignment.
             (2)  The next industry services body becomes the successor in law in relation to the industry assets and liabilities referred to in subsection (1).
Note:          To avoid doubt, no tax is payable under a law of the Commonwealth in respect of the vesting of an industry asset or liability in the next industry services body under this instrument.
             (3)  If an asset that has become an asset of the next industry services body under this section was, immediately before the transfer day, held by Horticulture Australia Limited on trust, that asset is taken, on and after the transfer day, to be held by the next industry services body on trust and subject to the terms of the trust on which the asset was so held by Horticulture Australia Limited.
             (4)  Horticulture Australia Limited must provide reasonable assistance in relation to the transfer to the next industry services body of the industry assets and liabilities referred to in subsection (1). The assistance must be provided within a reasonable timeframe.
Example:    Reasonable assistance may involve transferring documents or other things, signing instruments or giving notice under existing contracts.
7  Certificates for vesting of certain assets
             (1)  This section applies if:
                     (a)  an asset of Horticulture Australia Limited becomes an asset of the next industry services body under section 6; and
                     (b)  there is lodged with an assets official a certificate that:
                              (i)  is signed by the Minister; and
                             (ii)  identifies the asset; and
                            (iii)  states that the asset has become vested in the next industry services body under this instrument.
             (2)  The assets official may:
                     (a)  deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and
                     (b)  make such entries in the register in relation to assets of that kind as are necessary, having regard to the effect of this Part.
             (3)  Unless the contrary is established, a document that appears to be a certificate made under subsection (1):
                     (a)  is taken to be such a certificate; and
                     (b)  is taken to have been properly given.
8  Exemption from State and Territory stamp duty and other taxes
             (1)  No stamp duty or other tax is payable under a law of a State or Territory in respect of an exempt matter or anything connected with an exempt matter.
             (2)  The Minister may certify in writing:
                     (a)  that a specified matter is an exempt matter; or
                     (b)  that a specified thing is connected with a specified exempt matter.
             (3)  In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subsection (2) is prima facie evidence of the matters stated in the certificate.
             (4)  Unless the contrary is established, a document that appears to be a certificate made under subsection (2):
                     (a)  is taken to be such a certificate; and
                     (b)  is taken to have been properly given.
Part 3—References to Horticulture Australia Limited, legal proceedings and statutory records
  
9  References in instruments to Horticulture Australia Limited
             (1)  This section applies to an instrument if:
                     (a)  the instrument was in operation immediately before the transfer day; and
                     (b)  any of the following applies:
                              (i)  Horticulture Australia Limited is a party to the instrument;
                             (ii)  the instrument was given to, or in favour of, Horticulture Australia Limited;
                            (iii)  a reference is made to Horticulture Australia Limited in the instrument;
                            (iv)  a right or liability accrues, or may accrue, to Horticulture Australia Limited under the instrument; and
                     (c)  the instrument constitutes, or relates to, the industry assets and liabilities in relation to Horticulture Australia Limited immediately before the transfer day.
             (2)  The instrument continues to have effect on and after the transfer day as if a reference in the instrument to Horticulture Australia Limited were a reference to the next industry services body.
             (3)  In this item:
instrument:
                     (a)  includes:
                              (i)  a contract, deed, undertaking, or agreement; and
                             (ii)  a notice, authority, order or instruction; and
                            (iii)  an instrument made under an Act or a regulation; but
                     (b)  does not include any of the following:
                              (i)  an Act or this instrument;
                             (ii)  a declaration made under subsection 10(1) or 11(1) of the Act;
                            (iii)  a deed of agreement entered into under section 12 of the Act;
                            (iv)  a certificate given under this instrument.
10  Substitution of parties to proceedings
If any proceedings to which Horticulture Australia Limited was a party:
                     (a)  were pending in any court or tribunal immediately before the transfer day; and
                     (b)  related, in whole or in part, to an industry asset or liability in relation to Horticulture Australia Limited;
the next industry services body is, by force of this item, substituted for Horticulture Australia Limited, on the transfer day, as a party to the proceedings to the extent to which the proceedings relate to the industry asset or liability.
11  Transfer of custody of statutory records of Horticulture Australia Limited
             (1)  This item applies to a statutory record that, immediately before the transfer day, was in the custody of Horticulture Australia Limited.
             (2)  On, or as soon as practicable after, the transfer day, the statutory record is to be transferred into the custody of the Commonwealth.