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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Australian
National Railways Commission Sale Bill
1997
No. ,
1997
(Transport and Regional
Development)
A Bill for an Act to amend the
Australian National Railways Commission Act 1983, to repeal certain Acts,
and for other
purposes
9706220—1,014/12.5.1997—(62/97)
Cat. No. 96 7685 6 ISBN 0644 502142
Contents
Australian National Railways Commission Act
1983 7anrcsh1.html
Seat of Government Railway Act
1928 7anrcsh1.html
Port Augusta to Whyalla Railway Agreement Act
1970 7anrcsh1.html
Tarcoola to Alice Springs Railway Act
1974 7anrcsh1.html
Railways Agreement (South Australia) Act
1975 7anrcsh1.html
Railway Agreement (Adelaide to Crystal Brook Railway) Act
1980 7anrcsh1.html
Railways (Tasmania) Act
1975 7anrcsh1.html
Administrative Decisions (Judicial Review) Act
1977 7anrcsh1.html
Commonwealth Borrowing Levy Act
1987 7anrcsh1.html
Freedom of Information Act
1982 7anrcsh1.html
Legislative Instruments Act
1997 7anrcsh1.html
Long Service Leave (Commonwealth Employees) Act
1976 7anrcsh1.html
National Crime Authority Act
1984 7anrcsh1.html
Northern Territory Acceptance Act
1910 7anrcsh1.html
National Rail Corporation Agreement Act
1992 7anrcsh1.html
Occupational Health and Safety (Commonwealth Employment) Act
1991 7anrcsh1.html
Safety, Rehabilitation and Compensation Act
1988 7anrcsh1.html
Telecommunications Act
1997 7anrcsh1.html
Part 1—Certain assets not to be
fixtures 7anrcsh1.html
Part 2—Access to railways for defence-related purposes
etc. 7anrcsh1.html
A Bill for an Act to amend the Australian National
Railways Commission Act 1983, to repeal certain Acts, and for other
purposes
The Parliament of Australia enacts:
This Act may be cited as the Australian National Railways Commission
Sale Act 1997.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Items 7 to 10 of Schedule 3 and items 8 and 9 of Schedule 4 commence
on a day to be fixed by Proclamation. The day must not be earlier than the day
on which the Minister gives the Governor-General a written certificate stating
that the Minister is satisfied that the relevant Minister of South Australia has
agreed to those items commencing.
(3) Item 11 of Schedule 3 commences on a day to be fixed by Proclamation.
The day must not be earlier than the day on which the Minister gives the
Governor-General a written certificate stating that the Minister is satisfied
that the relevant Minister of Tasmania has agreed to that item
commencing.
(4) Item 2 of Schedule 4 commences on the day on which it receives the
Royal Assent.
(5) The remaining items of Schedule 3 and Schedule 4 commence on a day to
be fixed by Proclamation. The day must not be earlier than the later of the day
proclaimed for the purposes of subsection (2) and the day proclaimed for the
purposes of subsection (3).
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Insert:
The purpose of this Part is to provide for the winding down of the
operations of the Commission prior to the Commission being abolished by the
repeal of this Act.
The following is a simplified outline of this Part:
• This Part sets up a scheme under which assets
of the Commission may be transferred to other persons.
• The Commission may be directed to sell or
transfer any of its assets.
• The assets, contracts and liabilities of the
Commission may be transferred by declaration.
• Commonwealth guaranteed liabilities may,
however, only be transferred to the Commonwealth.
• If assets, contracts or liabilities (other
than Commonwealth guaranteed liabilities) of the Commission have been
transferred to the Commonwealth, the assets, contracts or liabilities may be
transferred by the Commonwealth to other persons.
• The Commission may be required to pay to the
Commonwealth an amount equal to any consideration received for the sale or
transfer of any of the Commission’s assets or contracts.
• Certain transactions under this Part are
exempt from stamp duty and similar taxes.
• The Commonwealth may take over obligations of
the Commission.
• The Commission, the Commissioners, and
certain other persons, may be required to assist the Commonwealth or the
Commission in connection with the implementation of this Part.
• The Federal Court may grant injunctions
relating to the enforcement of this Part.
• Provision is made for compensation for
acquisition of property.
In this Part, unless the contrary intention appears:
asset means:
(a) any legal or equitable estate or interest in real or personal
property, whether actual, contingent or prospective; and
(b) any right, power, privilege or immunity, whether actual, contingent or
prospective.
Commonwealth guaranteed liability means a liability, and any
other related obligations, whose satisfaction or performance is guaranteed by
the Commonwealth.
contract includes:
(a) a deed; and
(b) a deed poll.
Federal Court means the Federal Court of Australia.
instrument includes a document.
land registration official, in relation to land, means the
Registrar of Titles or other proper officer of the State or Territory in which
the land is situated.
liability means any liability, duty or obligation, whether
actual, contingent or prospective.
obligation means any obligation whether actual, contingent or
prospective.
(1) The Minister for Finance may, by written notice given to the
Commission, direct the Commission to sell or transfer a specified asset of the
Commission.
Note: An asset may be specified by name, by inclusion in a
specified class or in any other way.
(2) The direction may impose on the Commission requirements that are
ancillary or incidental to the sale or transfer, including (but not limited to)
any of the following requirements:
(a) a requirement that the sale or transfer must be to a specified
person;
(b) a requirement that the sale or transfer must be completed before a
specified time;
(c) a requirement that the sale or transfer must be undertaken in a
specified manner;
(d) in the case of a sale—a requirement that the asset must be sold
for a price that is within a specified range;
(e) in the case of a sale—a requirement that the asset must be
marketed, and that the sale must be undertaken, through a specified
agent.
Note: For specification by class, see section 46 of the
Acts Interpretation Act 1901.
(3) The Commission must comply with the direction.
(4) This section does not limit section 67AE or 67AF.
(1) The Minister for Finance may, by writing, make any or all of the
following declarations in relation to an asset of the Commission:
(a) a declaration that a specified asset vests in a specified person at a
specified time without any conveyance, transfer or assignment;
(b) a declaration that a specified instrument relating to a specified
asset continues to have effect after the asset vests in a specified person as if
a reference in the instrument to the Commission were a reference to the
person;
(c) a declaration that a specified person becomes the Commission’s
successor in law in relation to a specified asset immediately after the asset
vests in the person.
Note: An asset or instrument may be specified by name, by
inclusion in a specified class or in any other way.
(2) A declaration under subsection (1) has effect accordingly.
(3) A copy of a declaration under subsection (1) is to be published in the
Gazette within 14 days after the making of the declaration.
(4) Subsection (1) does not prevent the Commission from transferring an
asset to a person otherwise than under that subsection unless the transfer would
be contrary to a declaration made under that subsection.
(1) The Minister for Finance may, by writing, declare that the
Commission’s rights and obligations under a specified contract to which
the Commission is a party:
(a) cease to be rights and obligations of the Commission at a specified
time; and
(b) become rights and obligations of a specified person at that
time.
Note: A right or obligation may be specified by name, by
inclusion in a specified class or in any other way.
(2) The Minister for Finance may, by writing, declare that a specified
contract continues to have effect after a specified time as if a reference in
the contract to the Commission were a reference to a specified person.
(3) The Minister for Finance may, by writing, declare that a specified
instrument relating to a specified contract continues to have effect after the
Commission’s rights and obligations under the contract become rights and
obligations of a specified person, as if a reference in the instrument to the
Commission were a reference to the person.
(4) The Minister for Finance may, by writing, declare that a specified
person becomes the Commission’s successor in law, in relation to the
Commission’s rights and obligations under a specified contract,
immediately after the Commission’s rights and obligations under the
contract become rights and obligations of the person.
(5) A declaration under this section has effect
accordingly.
(6) A copy of a declaration under this section is to be published in the
Gazette within 14 days after the making of the declaration.
(7) This section does not, by implication, limit section 67AE.
Note: For
specification by class, see section 46 of the Acts
Interpretation Act 1901.
(1) The Minister for Finance may, by writing, make any or all of the
following declarations in relation to a liability of the Commission other than a
Commonwealth guaranteed liability:
(a) a declaration that a specified liability ceases to be a liability of
the Commission and becomes a liability of a specified person at a specified
time;
(b) a declaration that a specified instrument relating to a specified
liability continues to have effect after the liability becomes a liability of a
specified person as if a reference in the instrument to the Commission were a
reference to the person;
(c) a declaration that a specified person becomes the Commission’s
successor in law in relation to a specified liability immediately after the
liability becomes a liability of the person.
(2) A declaration under subsection (1) has effect accordingly.
(3) A copy of a declaration under subsection (1) is to be published in the
Gazette within 14 days after the making of the declaration.
Note: A
liability or instrument may be specified by name, by inclusion in a specified
class or in any other way.
(1) The Minister for Finance may, by written notice, declare that
specified Commonwealth guaranteed liabilities of the Commission cease to be
liabilities of the Commission and become liabilities of the Commonwealth on a
specified day.
(2) A declaration under subsection (1) has effect accordingly.
(3) The Treasurer may authorise the payment of money to discharge the
Commonwealth guaranteed liabilities that become liabilities of the Commonwealth,
whether by ending those liabilities or otherwise.
(4) The Consolidated Revenue Fund is appropriated for payments under this
section.
(1) A declaration may be made under this Division, whether or not the
declaration is associated with the giving of consideration.
(2) This section is enacted for the avoidance of doubt.
The Commission may, subject to sections 6AA and 67AL, subsection 55(3)
and this Part, enter into contracts for the purposes of this Part.
(1) The Minister for Finance may, by written notice given to the
Commission, direct the Commission to enter into specified contracts.
Note: A contract may be specified by name, by inclusion in a
specified class or in any other way.
(2) The direction may impose on the Commission requirements that are
ancillary or incidental to the contract, including (but not limited to) either
or both of the following requirements:
(a) a requirement that the contract must be with a specified
person;
(b) a requirement that the contract must be entered into before a
specified time.
(3) The Commission must comply with the direction.
(1) The Minister for Finance may, by writing, make any or all of the
following declarations in relation to an asset that has vested in the
Commonwealth under section 67AE:
(a) a declaration that a specified asset vests in a specified person at a
specified time without any conveyance, transfer or assignment;
(b) a declaration that a specified instrument relating to a specified
asset continues to have effect after the asset vests in a specified person as if
a reference in the instrument to the Commonwealth were a reference to the
person;
(c) a declaration that a specified person becomes the Commonwealth’s
successor in law in relation to a specified asset immediately after the asset
vests in the person.
Note: An asset or instrument may be specified by name, by
inclusion in a specified class or in any other way.
(2) A declaration under subsection (1) has effect accordingly.
(3) A copy of a declaration under subsection (1) is to be published in the
Gazette within 14 days after the making of the declaration.
(4) Subsection (1) does not prevent the Commonwealth from transferring an
asset to a person otherwise than under that subsection.
(1) This section applies to a contract where rights and obligations under
the contract became rights and obligations of the Commonwealth under section
67AF.
(2) The Minister for Finance may, by writing, declare that the
Commonwealth’s rights and obligations under a specified
contract:
(a) cease to be rights and obligations of the Commonwealth at a specified
time; and
(b) become rights and obligations of a specified person at that
time.
(3) The Minister for Finance may, by writing, declare that a specified
contract continues to have effect after a specified time as if a reference in
the contract to the Commonwealth were a reference to a specified
person.
(4) The Minister for Finance may, by writing, declare that a specified
instrument relating to a specified contract continues to have effect, after the
Commonwealth’s rights and obligations under the contract become rights and
obligations of a specified person, as if a reference in the instrument to the
Commonwealth were a reference to the person.
(5) The Minister for Finance may, by writing, declare that a specified
person becomes the Commonwealth’s successor in law, in relation to the
Commonwealth’s rights and obligations under a specified contract,
immediately after the Commonwealth’s rights and obligations under the
contract become rights and obligations of the person.
(6) A declaration under this section has effect
accordingly.
(7) A copy of a declaration under this section is to be published in the
Gazette within 14 days after the making of the declaration.
(8) This section does not, by implication, limit section 67AM.
Note: A contract or instrument may be specified by name, by
inclusion in a specified class or in any other way.
(1) This section applies to a liability that became a liability of the
Commonwealth under section 67AG.
(2) The Minister for Finance may, by writing, make any or all of the
following declarations:
(a) a declaration that a specified liability ceases to be a liability of
the Commonwealth and becomes a liability of a specified person at a specified
time;
(b) a declaration that a specified instrument relating to a specified
liability continues to have effect after the liability becomes a liability of a
specified person as if a reference in the instrument to the Commonwealth were a
reference to the person;
(c) a declaration that a specified person becomes the Commonwealth’s
successor in law in relation to a specified liability immediately after the
liability becomes a liability of the person.
(3) A declaration under subsection (2) has effect accordingly.
(4) A copy of a declaration under subsection (2) is to be published in the
Gazette within 14 days after the making of the declaration.
Note: A liability or instrument may be specified by name, by
inclusion in a specified class or in any other way.
(1) A declaration may be made under this Division, whether or not the
declaration is associated with the giving of consideration.
(2) This section is enacted for the avoidance of doubt.
(1) The Minister for Finance may, by written notice given to the
Commission, direct that, if the Commission receives any consideration in respect
of:
(a) the sale or transfer by the Commission of a specified asset;
or
(b) the transfer of the Commission’s rights and obligations under a
specified contract;
the Commission must pay to the Commonwealth a specified amount. The amount
specified must not be more than the amount of the consideration.
Note: An asset or contract may be specified by name, by
inclusion in a specified class or in any other way.
(2) The Commission must comply with the direction.
(3) This section does not, by implication, limit section 57.
(1) Subject to subsection (2), stamp duty or other tax is not payable
under a law of the Commonwealth, a State or a Territory in respect of:
(a) an exempt matter; or
(b) anything done (including a transaction entered into or an instrument
made, executed, lodged or given) because of, or for a purpose connected with or
arising out of, an exempt matter.
(2) The Minister for Finance may, by written notice, declare that
subsection (1) does not apply in respect of a specified exempt matter.
(3) A declaration under subsection (2) has effect accordingly.
(4) In this section:
exempt matter means:
(a) the
sale or transfer by the Commission of an asset in accordance with a direction
under section 67AD; or
(b) an agreement relating to a sale or transfer covered by paragraph (a);
or
(c) the receipt of money by the Commission, or by a person acting on
behalf of the Commission, in respect of a sale or transfer covered by paragraph
(a); or
(d) a transfer under section 67AE, 67AF or 67AG; or
(e) an agreement relating to a transfer covered by paragraph (d);
or
(f) the receipt of money by the Commission, or by a person acting on
behalf of the Commission, in respect of a transfer covered by paragraph (d);
or
(g) the entering into of a contract by the Commission under section 67AK
or in accordance with a direction under section 67AL; or
(h) the receipt of money by the Commission, or by a person acting on
behalf of the Commission, in respect of a contract covered by paragraph (g);
or
(i) a transfer under section 67AM, 67AN or 67AP; or
(j) an agreement relating to a transfer covered by paragraph (i);
or
(k) the receipt of money by the Commonwealth, or by a person acting on
behalf of the Commonwealth, in respect of a transfer covered by paragraph (i);
or
(l) the sale or transfer by the Commonwealth of an asset that has vested
in the Commonwealth under section 67AE; or
(m) an agreement relating to a sale or transfer covered by paragraph (l);
or
(n) the receipt of money by the Commonwealth, or by a person acting on
behalf of the Commonwealth, in respect of a sale or transfer covered by
paragraph (l); or
(o) the
entering into of a contract by the Minister for Finance for the sale of shares
referred to in section 67AZN; or
(p) the receipt of money by the Minister for Finance, or by a person
acting on behalf of the Minister for Finance, in respect of a contract covered
by paragraph (o).
(1) This section applies to a contractual right or obligation or other
liability of the Commission other than a liability to which section 67AU
applies.
(2) The Minister for Finance may, on the Commonwealth’s behalf,
enter into an agreement to take over a contractual right or obligation or other
liability to which this section applies.
(1) This section applies to a liability of the Commission under a
borrowing transaction.
(2) The Treasurer may, on the Commonwealth’s behalf, enter into an
agreement to take over a liability to which this section applies.
(3) For the purposes of this section, a borrowing transaction
is:
(a) a loan; or
(b) any other transaction that gives rise to a borrowing.
(4) For the purposes of this section, borrowing includes
borrowing, or otherwise raising money, by dealing in securities.
(5) For the purposes of this section, the obtaining of credit is taken to
be a borrowing of an amount equal to the value of the credit obtained.
If the Treasurer enters into an agreement under subsection 67AU(2), the
Treasurer may authorise the payment of money to discharge the
Commonwealth’s obligations under the agreement, whether by terminating
those obligations or otherwise.
A payment under section 67AV is to be made out of the Consolidated
Revenue Fund, which is appropriated accordingly.
Sections 5A, 5B, 5C and 5D (other than paragraphs (1)(c) and (2)(c)) of
the Loans Securities Act 1919 apply in relation to a liability that is
taken over by the Commonwealth under section 67AU as if that liability were a
borrowing of money outside Australia:
(a) that the Treasurer was authorised to make on behalf of the
Commonwealth; and
(b) that the Treasurer made accordingly.
A reference in this Division to the implementation of this
Part includes a reference to the formulation of the policies and
approaches to be adopted by the Minister for Finance for the purposes of this
Part.
(1) The Commission may, on the Commission’s own initiative, assist
the Commonwealth in connection with the implementation of this Part.
(2) A Commissioner may, on his or her own initiative, assist the
Commonwealth or the Commission in connection with the implementation of this
Part.
(3) The Commission must, when requested in writing by the Minister for
Finance to do so, assist the Commonwealth in connection with the implementation
of this Part. The assistance is to be given within the period, and in the form
and manner, specified in the request.
(4) A Commissioner must, when requested in writing by the Minister for
Finance to do so, assist the Commonwealth or the Commission in connection with
the implementation of this Part. The assistance is to be given within the
period, and in the form and manner, specified in the request.
(5) To
avoid doubt, the giving of assistance as mentioned in subsection (1), (2), (3)
or (4) or the making of a request under subsection (3) or (4) does not result in
a contravention of, or give rise to a liability or remedy under a rule of common
law or equity (other than a rule of administrative law).
(1) The assistance mentioned in subsection 67AZ(1), (2), (3) or (4) may
take the form of:
(a) the giving of information; or
(b) the giving of financial assistance; or
(c) the giving of a financial benefit to a related party; or
(d) the provision, by a Commissioner or by employees of the Commission, of
facilities, information and other assistance in connection with the conduct
of:
(i) a due diligence procedure or a similar process; or
(ii) a market briefing or a similar process; or
(e) the entering into of an agreement with the Commonwealth or the
Commission.
(2) Subsection (1) does not, by implication, limit the forms in which
assistance may be given.
(3) Section 67AZ does not, by implication, limit:
(a) the executive power of the Commonwealth to enter into an agreement;
or
(b) the power of the Commission to enter into an agreement; or
(c) the capacity of the Commission or a Commissioner to enter into an
agreement with the Commonwealth; or
(d) the
capacity of a Commissioner to enter into an agreement with the
Commission.
(4) Section 67AZ extends to the giving of assistance outside Australia,
whether or not in a foreign country.
(1) This section applies to information obtained under section
67AZ.
(2) The Commonwealth, the Commission, or an associated person, may use the
information for a purpose in connection with the implementation of this
Part.
(3) The Commonwealth, the Commission, or an associated person, may
disclose the information for a purpose in connection with the implementation of
this Part.
(4) To avoid doubt, the use or disclosure of information as mentioned in
subsection (2) or (3) does not result in a contravention of, or give rise to a
liability or remedy under a rule of common law or equity (other than a rule of
administrative law).
(5) In this section:
associated person means:
(a) a Minister; or
(b) an individual who holds an office under, or is employed by, the
Commonwealth; or
(c) an officer or employee within the meaning of the Public Service Act
1922; or
(d) a person who performs services for or on behalf of the Commonwealth in
connection with the implementation of this Part; or
(e) a Commissioner; or
(f) an officer or employee of the Commission; or
(g) a person who performs services for or on behalf of the Commission in
connection with the implementation of this Part.
(1) The Minister for Finance may, on behalf of the Commonwealth, enter
into an agreement with a person relating to the protection of
information:
(a) that is obtained under section 67AZ; and
(b) the publication of which might be expected to prejudice substantially
a person’s commercial interests.
(2) An agreement under subsection (1) may be enforced as if it were a
contract.
(3) Subsection (1) does not, by implication, limit the executive power of
the Commonwealth to enter into agreements.
(4) The
Commission may enter into an agreement with a person relating to the protection
of information:
(a) that is obtained under section 67AZ; and
(b) the publication of which might be expected to prejudice substantially
a person’s commercial interests.
(5) An agreement under subsection (4) may be enforced as if it were a
contract.
(6) Subsection (4) does not, by implication, limit the power of the
Commission to enter into agreements.
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of this Part, the Federal Court may, on the application
of the Minister for Finance, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
Performance injunctions
(2) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is, or would be, a contravention of this
Part;
the Federal Court may, on the application of the Minister for Finance,
grant an injunction requiring the person to do that act or thing.
Grant of interim injunction
(1) If an application is made to the court for an injunction under section
67AZD, the court may, before considering the application, grant an interim
injunction restraining a person from engaging in conduct of a kind referred to
in that section.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under
section 67AZD, as a condition of granting an interim injunction, to give any
undertakings as to damages.
The court may discharge or vary an injunction granted under this
Division.
Restraining injunctions
(1) The power of the court under this Division to grant an injunction
restraining a person from engaging in conduct of a particular kind may be
exercised:
(a) if the court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to any person if the person
engages in conduct of that kind.
Performance injunctions
(2) The power of the court under this Division to grant an injunction
requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do
that act or thing—whether or not it appears to the court that the person
intends to refuse or fail again, or to continue to refuse or fail, to do that
act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or failed to do
that act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
The powers conferred on the court under this Division are in addition to,
and not instead of, any other powers of the court, whether conferred by this Act
or otherwise.
(1) This section applies if:
(a) any right, title or interest in particular land vests in a person
under section 67AE or 67AM; and
(b) there is lodged with a land registration official a certificate
that:
(i) is signed by the Minister for Finance, or a person authorised by the
Minister for Finance, in writing, for the purposes of this section;
and
(ii) identifies the land, whether by reference to a map or otherwise;
and
(iii) states that the right, title or interest has become vested in the
person under section 67AE or 67AM, as the case requires.
(2) The land registration official may:
(a) register the matter in a way that is the same as, or similar to, the
way in which dealings in land of that kind are registered; and
(b) deal with, and give effect to, the certificate.
(3) A document that appears to be a certificate under subsection (1) is
taken to be such a certificate, and to have been properly given, unless the
contrary is established.
This Part, in so far as it provides for the interpretation of references
in other instruments, does not modify any register kept by a land registration
official under a law of a State or Territory.
The Lands Acquisition Act 1989 does not apply in relation to
anything done under this Part.
(1) This section applies if:
(a) an asset other than land vests in a specified transferee under section
67AE or 67AM; and
(b) there is lodged with an assets official a certificate that:
(i) is signed by the Minister for Finance, or a person authorised by the
Minister for Finance, in writing, for the purposes of this section;
and
(ii) identifies the asset; and
(iii) states that the asset has become vested in the specified transferee
under section 67AE or 67AM, as the case requires.
(2) The assets official may:
(a) deal with, and give effect to, the certificate as if the certificate
were a proper and appropriate instrument for transactions in relation to assets
of that kind; and
(b) make such entries in the register as are necessary having regard to
the effect of section 67AE or 67AM.
(3) A document that appears to be a certificate under subsection (1) is
taken to be such a certificate and to have been properly given unless the
contrary is established.
(4) In this section:
assets official means the person or authority who, under a
law of the Commonwealth, a State or a Territory, has responsibility for keeping
a register in relation to assets of the kind concerned.
To avoid doubt, if the Commonwealth owns shares in a company that is
established for purposes related to the purposes of this Part, the Minister for
Finance may, on behalf of the Commonwealth, enter into contracts to sell the
shares.
To avoid doubt, an instrument made under this Part is not taken to be a
legislative instrument for the purposes of the Legislative Instruments Act
1997.
For the purpose of paragraph 32(1)(n) of the Australian Land Transport
Development Act 1988, where the Commission disposes of an asset under this
Part, the Commission is taken to have paid to the Commonwealth an amount equal
to the greater of the proceeds of the sale or disposal and the market value of
the asset.
(1) The Minister may, by written notice, enter into one or more agreements
on behalf of the Commonwealth, with South Australia that:
(a) terminates or varies the agreements contained in any of the following
Acts:
(i) Port Augusta to Whyalla Railway Agreement Act 1970;
(ii) Tarcoola to Alice Springs Railway Act 1974;
(iii) Railways Agreement (South Australia) Act 1975;
(iv) Railway Agreement (Adelaide to Crystal Brook Railway) Act
1980; or
(b) provides for the transfer to South Australia of the whole or any part
of land owned by the Commission or the Commonwealth that is located in South
Australia and that is used for purposes related to railways; or
(c) provides for matters that are incidental to transfers covered by
paragraph (b); or
(d) provides for matters that are incidental to the purposes of this Part;
or
(e) authorises the performance and observance by the Commonwealth and by
the Commission of the new agreements.
(2) The Minister may, by written notice, enter into one or more agreements
on behalf of the Commonwealth, with Tasmania that:
(a) terminates or varies the agreement contained in the Railways
(Tasmania) Act 1975; or
(b) provides for the transfer to Tasmania of the whole or any part of land
owned by the Commission or the Commonwealth that is located in Tasmania that is
used for purposes related to railways; or
(c) provides for matters that are incidental to transfers covered by
paragraph (b); or
(d) provides for matters that are incidental to the purposes of this Part;
or
(e) authorises the performance and observance by the Commonwealth and by
the Commission of the new agreements.
(3) A notice by the Minister under subsection (1) or (2) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) If:
(a) apart from this section, the operation of this Part would result in
the acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(3) Any damages or compensation recovered, or other remedy given, in a
proceeding begun otherwise than under this section must be taken into account in
assessing compensation payable in a proceeding begun under this section and
arising out of the same event or transaction.
(4) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
(1) This section applies if, as a result of a declaration made by the
Minister for Finance under this Act, a person (the successor) becomes the
successor in law of another person (the original person) at a particular time in
relation to a particular asset, liability, right, benefit or
obligation.
(2) If any proceedings to which the original person was a party:
(a) were pending in any court or tribunal immediately before that time;
and
(b) related, in whole or in part, to the asset, liability, right, benefit
or obligation, as the case may be;
then, unless the Minister for Finance otherwise determines in writing in
relation to the proceedings, the successor is, by force of this subsection,
substituted for the original person as a party to the proceedings to the extent
to which the proceedings relate to the asset, liability, right, benefit or
obligation, as the case requires.
To avoid doubt, the operation of this Part is not to be regarded
as:
(a) placing a person in breach of contract or confidence; or
(b) otherwise making a person guilty of a civil wrong; or
(c) placing a person in breach of, or constituting a default under, any
Act or other law or any provision in an agreement, arrangement or understanding
including, but not limited to, any contractual provision prohibiting,
restricting or regulating:
(i) the assignment or transfer of any asset, liability, right or
obligation; or
(ii) the disclosure of any information; or
(d) releasing any surety from any of the surety’s obligations in
relation to a liability or obligation that is transferred under a declaration
made under this Part; or
(e) fulfilling
any condition which:
(i) allows a person to terminate any agreement or obligation; or
(ii) modifies the operation or effect of any agreement; or
(iii) requires any money to be paid before its stated maturity.
(1) The Minister for Finance may, by writing, delegate to:
(a) the Secretary to the Department of Finance; or
(b) the Chief Executive of the Office of Asset Sales; or
(c) a person holding or performing the duties of a Senior Executive
Service office (whether or not in the Department of Finance);
all or any of the functions and powers conferred on the Minister for
Finance by this Part.
Senior Executive Service office has the same meaning
as in the Public Service Act 1922.
(1) This Part does not authorise a Commonwealth record (within the meaning
of the Archives Act 1983) to be transferred or otherwise dealt with
except in accordance with the provisions of that Act.
(2) A Commonwealth record (within the meaning of the Archives Act
1983) must not be transferred to a person under this Part unless the
Australian Archives has given permission under paragraph 24(2)(b) of the
Archives Act 1983 or the record is covered by a determination under
section 29 of that Act.
This Part does not authorise the imposition of taxation within the
meaning of section 55 of the Constitution.
Add:
(1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Australian Capital Territory, of the Northern Territory and of
Norfolk Island.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of the
Crown.
This Act extends to acts, omissions, matters and things outside
Australia, whether or not in a foreign country.
Add:
; and (g) any other functions required to be carried out by the Commission
in order for Part VA to be given effect to.
Note: Part VA deals with transfers of assets of the
Commission for the purpose of winding down the Commission.
Add:
(3) Subsections (1) and (2) have effect subject to section 6AA (which
deals with directions to the Commission).
Insert:
(1) The Minister may, by written notice given to the Commission, give
directions to the Commission about the performance of the Commission’s
functions or the exercise of the Commission’s powers.
(2) A direction under subsection (1) may be given for the purposes of
winding down the various activities of the Commission and, in particular, a
direction may:
(a) require the Commission to:
(i) cease to perform a specified function; or
(ii) cease to exercise a specified power; or
(b) impose restrictions or conditions on:
(i) the performance by the Commission of a specified function;
or
(ii) the exercise by the Commission of a specified power.
Note: For specification by class, see section 46 of the
Acts Interpretation Act 1901.
(3) A direction under subsection (1) may make provision for or in relation
to a matter by conferring a power of the Commission on the Minister.
(4) Subsections (2) and (3) do not, by implication, limit subsection
(1).
(5) The Commission must comply with a direction under subsection
(1).
(6) A copy of a direction under subsection (1) is to be published in the
Gazette within 14 days after the giving of the direction.
Omit “subsections 19(3) and 55(3)”, substitute “section
6AA, subsection 55(3) and Part VA”.
Repeal the section.
Repeal the section.
After “this section”, insert “, section
6AA”.
Omit “, 19(3)”.
Repeal the subsections, substitute:
(1) The Commission consists of the following Commissioners:
(a) the Chairman of the Commission;
(a) the Deputy Chairman of the Commission;
(b) the Managing Director of the Commission;
(c) such number of other Commissioners as the Minister appoints.
(2) The Commissioners (other than the Managing Director) are to be
appointed by the Minister by written instrument. The appointment takes effect
from the day specified in the instrument.
(2A) The Commissioners (other than the Managing Director) hold office
during the Minister’s pleasure.
Repeal the section.
Repeal the section.
Omit “4 Commissioners constitute a quorum”, substitute “a
quorum is constituted by half of the Commissioners”.
Repeal the section, substitute:
The Managing Director may hold office on either a part-time or a
full-time basis.
Repeal the section.
Omit “subsection 19(3)”, substitute “section 6AA and Part
VA”.
Repeal the sections, substitute:
(1) The Minister for Finance may give the Commission a written direction
requiring the Commission to pay a specified amount to the Commonwealth before a
specified time.
(2) The Commission must comply with a direction under subsection
(1).
Omit “The Commission”, substitute “Subject to subsections
(3) and (4), the Commission”.
Add:
(3) The Minister for Finance may give the Commission a written direction
requiring the Commission not to enter into a loan.
(4) The Commission must comply with a direction under subsection
(3).
Omit “incurred by it under section 62”, substitute:
incurred by it:
(a) under a borrowing made under section 62; or
(b) under any other contract, arrangement, agreement or
obligation.
After “under section 62”, insert “or under any other
contract, arrangement, agreement or obligation”.
After “contrary,”, insert “other than a law that
specifically relates to the safety in the operation of
railways,”.
Insert:
(1) The Commission, in operating railways, is subject to any law of a
State or Territory that specifically relates to the safety in the operation of
railways.
(2) Subject to subsection (3), a person who operates a railway that was
previously operated by the Commission is, in operating the railway, subject to
all laws of a State or Territory that relate to the operation of
railways.
(3) The Minister may, by written notice published in the Gazette,
declare that specified laws of a State or Territory that relate to the operation
of railways do not apply to a specified person who operates a railway that was
previously operated by the Commission.
(4) A declaration under subsection (3) must specify the period during
which it has effect. The period must end no later than 6 months after the
Commission ceases to operate the railway concerned.
(5) A declaration made under subsection (3) has effect
accordingly.
Australian
National Railways Commission Act 1983
Repeal the Act.
In this Schedule:
repeal day means the day on which this item
commences.
residual assets means:
(a) any legal or equitable estates or interests in real or personal
property, including contingent or prospective ones; and
(b) any rights, privileges and immunities including contingent or
prospective ones;
of the Commission immediately before the repeal day.
residual instruments means instruments that are in force
immediately before the repeal day:
(a) to which the Commission is a party; or
(b) that were given to, by or in favour of the Commission; or
(c) in which a reference is made to the Commission; or
(d) under which any money is or may become payable, or any other property
is to be, or may become liable to be, transferred, conveyed or assigned, to or
by the Commission.
residual liability means liabilities and duties of the
Commission, including contingent and prospective ones, immediately before the
repeal day.
3
Residual assets and liabilities to become Commonwealth assets and
liabilities
(1) By force of this item, all the residual assets of the Commission cease
to be assets of the Commission and become assets of the Commonwealth on the
repeal day.
(2) By force of this item, all residual liabilities of the Commission cease
to be liabilities of the Commission and become liabilities of the Commonwealth
on the repeal day.
(3) A residual instrument continues to have effect on and after the repeal
day as if a reference in the instrument to the Commission were a reference to
the Commonwealth.
4
Provisions continue to apply
In spite of the repeal of the Australian National Railways Commission
Act 1983 by this Schedule, that Act continues to apply in relation to
residual assets and residual liabilities as if those residual assets and
residual liabilities were assets and liabilities transferred to the Commonwealth
under section 67AE or 67AG of that Act.
If, immediately before the repeal day, proceedings to which the Commission
was a party are pending in a court, then, on and after the repeal day, the
Commonwealth is substituted for the Commission in the proceedings and has the
same rights and obligations as the Commission would have had in the
proceedings.
Seat
of Government Railway Act 1928
Repeal the Act.
Port
Augusta to Whyalla Railway Agreement Act 1970
Repeal the Act.
Tarcoola
to Alice Springs Railway Act 1974
Repeal the Act.
Railways
Agreement (South Australia) Act 1975
Repeal the Act.
Railway Agreement (Adelaide to Crystal Brook Railway)
Act 1980
Repeal the Act.
Repeal the Act.
Administrative
Decisions (Judicial Review) Act 1977
Omit “Australian National Railways Commission”.
Commonwealth
Borrowing Levy Act 1987
Omit “6. Australian National Railways Commission”.
Freedom
of Information Act 1982
Omit “Australian National Railways Commission”.
Legislative
Instruments Act 1997
Omit “Australian National Railways Commission Act
1983”.
Omit “Australian National Railways Commission”.
Long
Service Leave (Commonwealth Employees) Act 1976
Repeal the subsection.
National
Crime Authority Act 1984
Omit “Australian National Railways Commission”.
Northern
Territory Acceptance Act 1910
Repeal the paragraphs.
After the commencement of this item, the Northern Territory Acceptance
Act 1910 applies as if paragraphs (1)(g) and (h) of the Agreement set out in
the Schedule to that Act were omitted.
National
Rail Corporation Agreement Act 1992
10
Section 3 (definition of Commonwealth
rail freight agreement)
Omit “, the Australian National Railways Commission, or any
other”, substitute “or any”.
11
Section 3 (paragraph (b) of the definition of
eligible party)
Repeal the paragraph.
12
Section 3 (paragraph (c) of the definition of
eligible party)
Omit “other”.
Omit “the Australian National Railways Commission, or of any
other”, substitute “or any”.
Omit “that Commission or”, substitute
“that”.
Omit “the Australian National Railways Commission or any
other”, substitute “any”.
Occupational
Health and Safety (Commonwealth Employment) Act 1991
Omit “Australian National Railways Commission”.
Safety,
Rehabilitation and Compensation Act 1988
17
Subsection 128A(4) (paragraph (j) of the definition of
prescribed Commonwealth
authority)
Repeal the paragraph.
Repeal the subsection.
Repeal the subsection.
Repeal the subsection.
Part
1—Certain assets not to be fixtures
1
Certain assets not to be fixtures
(1) The Minister for Finance may, by written notice, declare that specified
assets that are affixed to land and that are disposed of by the Commission or by
the Commonwealth under Part VA of the Australian National Railways Commission
Act 1983 are taken, for all purposes, to be separate assets being chattels
personal and not fixtures.
Note: An asset may be specified by name, by inclusion in a
specified class or in any other way.
(2) The declaration has effect accordingly.
Part
2—Access to railways for defence-related purposes
etc.
2
Access to railways for defence-related purposes and for emergency or disaster
relief
(1) The Minister may, by written notice given to a person who manages or
controls a railway previously managed or controlled by the Commission:
(a) require that access be given to specified kinds of railway services
for specified kinds of defence-related purposes; or
(b) require that priority of access be given to specified kinds of railway
services for specified kinds of defence-related purposes.
(2) The manner in which that access, or priority of access, is to be given
is to be set out in the notice.
(3) Subject to item 3, the terms and conditions on which that access, or
priority of access, is to be given are to be set out in the notice.
(4) A person must comply with a notice given to it under subitem
(1).
(5) A contravention of subitem (4) is not an offence. However, a
contravention of subitem (4) is a ground for obtaining an injunction.
(6) In addition to other methods of giving a notice, a notice under subitem
(1) may be given by facsimile transmission.
(7) In addition to its effect apart from this subitem, this item has the
effect it would have if each reference to a person who manages or controls a
railway previously managed or controlled by the Commission were, by express
provision, confined to such a person that is a constitutional
corporation.
(8) In this item:
Commission means the Australian National Railways
Commission.
railway service means a service provided in the course of
conducting or managing a railway, and includes the use of facilities that are
used for those purposes.
defence-related purpose means a purpose related to any of the
following:
(a) the defence of Australia;
(b) the operation of the Australian Defence Force in connection with the
defence of Australia;
(c) the transport of the armed forces of a foreign country in connection
with the defence of Australia;
(d) the operation of the Australian Defence Force in connection with
international humanitarian aid or United Nations peace-keeping
operations;
(e) the management of an emergency or a disaster (whether natural or
otherwise), where that management involves the Australian Defence
Force.
3
Compensation for access to railways for defence-related purposes and for
emergency or disaster relief
Designated agency in
relation to a notice
(1) A notice under subitem 2(1) must specify a Commonwealth agency as the
designated agency in relation to the notice.
(2) If a notice under subitem 2(1) relates to either of the following
purposes:
(a) the defence of Australia;
(b) the operation of the Australian Defence Force in connection with the
defence of Australia;
the notice must specify the Department of Defence as the designated agency
in relation to the notice.
(3) If a notice under subitem 2(1) relates to the management of an
emergency or a disaster (whether natural or otherwise), the notice may
specify:
(a) the Department of Defence; or
(b) any other Commonwealth agency that is involved in the management of
the emergency or disaster;
as the designated agency in relation to the notice.
Liability for loss or damage
(4) If a notice under subitem 2(1) is given to a person and that person, or
another person contracted, licensed or otherwise acting for that person in the
operation of the railway, suffers loss or damage in consequence of the giving of
access, or the giving of priority of access, in accordance with the notice the
Commonwealth is liable to pay to the person who suffers the loss or damage an
amount equal to the loss or damage.
(5) If:
(a) the person who suffers the loss or damage; and
(b) the head of the designated agency in relation to the notice (on behalf
of the Commonwealth);
do not agree on the amount of loss or damage mentioned in subitem (4), the
person may recover the amount of the loss or damage by action against the
Commonwealth in a court of competent jurisdiction.
(6) In determining the amount of any loss or damage mentioned in subitem
(4), regard must be had to anything done in mitigation of the loss or damage
(including any remedial work).
(7) A payment under subitem (4) or (5) is to be made out of amounts
appropriated by the Parliament for the purposes of the designated agency in
relation to the notice.
Compensation—constitutional
safety-net
(8) If:
(a) apart from this item, the operation of item 2 would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(9) If the Commonwealth and the person do not agree on the amount of the
compensation mentioned in subitem (8), the person may institute proceedings in
the Federal Court for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
Section 70 of the Defence Act
1903
(10) This item has effect despite anything in section 70 of the Defence
Act 1903.
Definitions
(11) In this item:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
Commonwealth agency means:
(a) a Department; or
(b) an agency or instrumentality of the Commonwealth.
designated agency, in relation to a notice, means the
Commonwealth agency specified in the notice as the designated agency in relation
to the notice.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.