Stock (Seller Liability and Declarations) Bill
EXPLANATORY MEMORANDUM
PART I-PRELIMINARY
Clause 1 sets out the purpose of the Act.
Clause 2 is the commencement provision. Sections 1 and 2 come into operation on
Royal Assent. The remaining provisions come into operation on a day to be proclaimed. If
a provision to be proclaimed does not come into operation before 1 July 1994, it comes
into operation on that day.
Clause 3 defines various terms used in the Bill. Of particular significance is the term
"relevant condition" which is any condition prescribed by the regulations as a condition
that all stock of a particular species are not to be in at the time they are sold. Also of
significance is the term "relevant disease" which is any disease prescribed by the
regulations as a disease that all stock of a particular species are to be free of at the time
they are sold.
Clause 4 enables the Governor in Council, by Order published in the Government
Gazette, to declare any species of stock to be a species to which the Act applies.
PART 2-CONDITIONS OF SALE OF STOCK
Clause 5 provides that it is a special condition of every agreement for the sale of
prescribed stock that the stock is free from every relevant disease and is not in any
relevant condition. Any term of an agreement that purports to exclude or vary this special
condition is void.
Despite this special condition and anything to the contrary in the Act, an agreement
that contains a written acknowledgment signed by the buyer that stock has or may have a
relevant disease or condition that is specified in the acknowledgment, may exclude this
special condition with respect to that disease or condition.
Clause 6 provides that if stock is bought, and within the time specified by the
regulations, the buyer obtains a certificate that the stock or any of the stock which is
slaughtered or dies has or had a relevant disease or condition, and the buyer gives a copy
to the seller of the certificate attached to a notice invoking this clause, then the buyer is not
liable to pay the seller any money owing in respect of the sale.
The seller must within 24 hours of receiving the notice, refund any money paid to the
seller by the buyer in respect of the sale.
Clause 7 provides that the seller may repossess any stock that is the subject of a notice
under clause 6 within 7 days of receiving the notice if the buyer still possesses the stock
and the seller has refunded all the money paid by the buyer.
If the seller does this, the ownership of the stock reverts to the seller. If the seller does
not do this, the ownership of the stock remains with or passes to the buyer.
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If the seller's failure to retake possession is caused by the buyer impeding the seller in
refunding money or retaking possession of the stock, the ownership reverts to the seller.
Clause 8 provides that a buyer may renounce the ownership of any stock or carcass
that is subject to a notice under clause 6 by making a statement to that effect in the notice.
If this happens, the ownership of the stock or carcass reverts to the seller.
Clause 9 provides that if a meat inspector partially condemns or downgrades a carcass
or wholly or partially condemns or downgrades any product derived from the carcass of
any stock slaughtered within the relevant times specified in the regulations, and the
inspector issues a certificate stating that the condemnation or downgrading resulted from a
relevant disease or condition, and if the buyer gives a copy to the seller of the certificate
attached to a notice invoking this clause, then the seller is liable to pay the buyer the
relevant amount set out in the regulations as damages to be paid.
The buyer may offset any such amount against any amount that the buyer owes the
seller in respect of the purchase.
Any balance still payable by the seller must be paid within 24 hours of receiving a
written demand.
Clause 10 provides that subject to any other law, the rights given to a buyer by clauses
6, 7, 8 and 9 are the only rights a buyer may exercise in relation to a failure by a seller to
comply with the special condition set out in clause 5.
PART 3-DECLARATIONS BY SELLERS AS TO QUALITY OF STOCK
Clause 11 deals with ongoing declarations. It provides that if a person who intends to
sell stock of a particular species declares in a prescribed written declaration registered
with the Secretary of the Department of Agriculture that all stock of that species sold by
that person during the period set out in the declaration that ar.e marked in the way
described in the declaration will or will not be in a certain condition or have certain
characteristics described in the regulations, then that person must ensure that all stock
marked in a way described in the declaration and sold during the period set out in the
declaration, complies with the declaration.
Clause 12 deals with one-off declarations. It provides that if a person who intends to
sell particular stock declares in a prescribed written declaration delivered to the buyer or
the buyer's agent will or will not be in a certain condition or have certain characteristics
described in the regulations, then that person must ensure that all stock in respect of which
a declaration is made that is sold to the buyer complies with the declaration.
Clause 13 provides that if the buyer of stock which is the subject of a declaration under
clauses 11 and 12 obtains within the relevant specified time a specified certificate stating
that the stock does not accord with the declaration and gives to the seller a copy of the
certificate attached to a notice invoking this clause, the seller is liable to pay the buyer the
amount set out in the regulations as damages to be paid.
The buyer may offset any such amount against any amount the buyer owes the seller in
respect of the purchase of any stock or carcass.
Any balance still payable by the seller must be paid within 24 hours of receiving a
written demand.
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Clause 14 provides that a person who has made an ongoing declaration may withdraw
it at any time by filing a notice of withdrawal with the Secretary of the Department of
Agriculture. The declaration ceases to have effect 90 days after the withdrawal notice is
accepted by the Secretary. The clause sets out the circumstances in which clauses 11 (2)
and 13 apply or do not apply after a declaration ceases to have effect.
Clause 15 requires the Secretary to ensure that a register is kept of all registered
ongoing declarations, and sets out the details which the register must contain.
Clause 16 sets out the circumstances where the Secretary may refuse to register
ongoing declarations. The Secretary must give any person refused registration written
reasons for the refusal.
Clause 17 sets out the circumstances where the Secretary may remove an ongoing
declaration from the register. The Secretary must give any person whose declaration has
been removed written reasons for the removal.
Clause 18 requires the Secretary to permit any person who has paid any required fee to
inspect the register and make copies from it.
PART 4--DISPUTES
Clause 19 provides that a seller who has been given a copy of a specified certificate
under the Act must presume that any statement in the certificate concerning the state of
any stock or carcass is accurate, and that the certificate was issued by the person named on
it.
Clause 20 provides that a seller who disputes the accuracy of a certificate may apply to
a Magistrates' Court for a declaration that the certificate is defective. The clause sets out
the circumstances where a magistrate may declare that a certificate is defective.
If a seller who has obtained a declaration that a certificate is defective serves a copy of
the order containing the declaration on the buyer, the buyer must refund to the seller any
money paid to the buyer in respect of any stock to which the certificate relates within 24
hours of receiving a copy of the order.
Clause 21 enables a seller to apply to a Magistrates' Court for a declaration if the seller
disputes amounts claimed by the buyer under clauses 9 (4) or 13 (4).
Clause 22 provides a defence to a charge under clauses 9 (4) or 13 (4).
PART 5--ADMINISTRATIVE AND ENFORCEMENT PROVISIONS
Clause 23 enables the Secretary of the Department to delegate powers and functions to
officers of the Department.
Clause 24 enables the Secretary by notice published in the Government Gazette to set
specified fees.
Clause 25 provides for the appointment of inspectors for the purposes of the Act.
Clause 26 enables a magistrate to issue a warrant to a stock inspector in respect of a
property used for the production or holding of stock intended for sale.
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Clause 27 sets out the powers and duties of a stock inspector who enters a property
under a warrant.
Clause 28 sets out offences relating to the execution of warrants.
Clause 29 makes provision for the service of infringement notices for offences listed
in the Schedule to the Act.
Clause 30 contains provisions relating to the withdrawal of infringement notices.
Clause 31 contains provisions relating to further proceedings relating to infringement
notices.
Clause 32 provides that only stock inspectors may bring prosecutions under the Act.
PART 6-MISCELLANEOUS PROVISIONS
Clause 33 deals with the issue of certificates relating to the contents of the register of
ongoing declarations.
Clause 34 is an evidentiary provision relating to the existence of a disease or condition
in stock or a carcass.
Clause 35 specifies how the cost of stock sold as part of a lot is to be determined.
Clause 36 makes provision for the recovery of any amount owed under the Act.
Clause 38 sets out the regulation-making powers.
The Schedule sets out the offences for which infringement notices may be issued.
By Autbority L. V. North, Government Printer Melbourne
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