Commonwealth Consolidated Acts

AUSTRALIAN TRADE COMMISSION LEGISLATION AMENDMENT ACT 2006 - SCHEDULE 4

Part   1 -- Preliminary

1   Definitions

(1)   In this Schedule:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

amend includes repeal and remake.

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.

assets official , in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

commencement time means the time when this Schedule commences.

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

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 regulations; and

  (iv)   regulations; but

  (b)   does not include an Act.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

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.

new Commission means the Australian Trade Commission established by the new law.

new law means the Australian Trade Commission Act 1985 as in force immediately after the commencement time.

old Commission means the Australian Trade Commission established by the old law.

old law means the Australian Trade Commission Act 1985 as in force immediately before the commencement time.

(2)   Subject to subitem   (1), an expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law.

Part   2 -- Assets, liabilities and legal proceedings

2   Vesting of assets of old Commission

(1)   This item applies to the assets of the old Commission immediately before the commencement time.

(2)   At the commencement time, the assets to which this item applies cease to be assets of the old Commission and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these assets.

3   Vesting of liabilities of old Commission

(1)   This item applies to the liabilities of the old Commission immediately before the commencement time.

(2)   At the commencement time, the liabilities to which this item applies cease to be liabilities of the old Commission and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities.

4   Certificates relating to vesting of land

(1)   This item applies if:

  (a)   any land vests in the Commonwealth under this Part; and

  (b)   there is lodged with a land registration official a certificate that:

  (i)   is signed by the Minister; and

  (ii)   identifies the land, whether by reference to a map or otherwise; and

  (iii)   states that the land has become vested in the Commonwealth under this Part.

Note:   Certificates under paragraph   (1)(b) are presumed to be authentic: see item   19.

(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.

5   Certificates relating to vesting of assets other than land

(1)   This item applies if:

  (a)   any asset other than land vests in the Commonwealth under this Part; 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 Commonwealth under this Part.

Note:   Certificates under paragraph   (1)(b) are presumed to be authentic: see item   19.

(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 as are necessary, having regard to the effect of this Schedule.

6   Substitution of Commonwealth as a party to pending proceedings

If any proceedings to which the old Commission was a party were pending in any court or tribunal immediately before the commencement time, the Commonwealth is substituted for the old Commission, from the commencement time, as a party to the proceedings.

7   Transfer of custody of old Commission records

(1)   This item applies to any records or documents that, immediately before the commencement time, were in the custody of the old Commission.

(2)   The records and documents are to be transferred into the custody of the CEO at or after the commencement time.

8   Access by Board members to records

For the purposes of the operation of subsection 27L(4) of the Commonwealth Authorities and Companies Act 1997 in relation to the books of the old Commission, the reference in that subsection to a Commonwealth authority is to be read, after the commencement time, as a reference to the CEO.

Part   3 -- Reference to, and things done by or in relation to, old Commission

9   References in instruments

References to old Commission taken to be references to CEO or Commonwealth

(1)   If:

  (a)   an instrument is in force immediately before the commencement time; and

  (b)   the instrument contains a reference to the old Commission (including a reference to the Board, the Managing Director or the Deputy Managing Director);

the instrument has effect from the commencement time as if the reference were a reference to the CEO.

(2)   However, if:

  (a)   an instrument is in force immediately before the commencement time; and

  (b)   the instrument relates to assets or liabilities covered by item   2 or 3; and

  (c)   the instrument refers to the old Commission (including a reference to the Board, the Managing Director or the Deputy Managing Director);

the reference is to be read as a reference to the Commonwealth as necessary to give effect to item   2 or 3, as the case requires.

References to staff of old Commission taken to be references to staff of new Commission

(3)   If:

  (a)   an instrument is in force immediately before the commencement time; and

  (b)   the instrument contains a reference to a member of the staff of the old Commission;

the instrument has effect from the commencement time as if the reference to the member of the staff of the old Commission were a reference to a member of the staff of the new Commission referred to in section   60 of the new law.

Minister and regulations may provide otherwise

(4)   The Minister may, by writing, determine that subitem   (1), (2) or (3):

  (a)   does not apply in relation to a specified reference; or

  (b)   applies as if:

  (i)   in the case of subitem   (1)--the reference in that subitem to the CEO were a reference to the Commonwealth; or

  (ii)   in the case of subitem   (2)--the reference in that subitem to the Commonwealth were a reference to the CEO; or

  (iii)   in the case of subitem   (3)--the reference in that subitem to a member of the staff of the Commission were a reference to the CEO.

A determination under this subitem has effect accordingly.

(5)   The regulations may provide that an instrument containing a reference specified in a determination under paragraph   (4)(a) has effect from the commencement time as if:

  (a)   in the case of an instrument covered by subitem   (1)--the reference were a reference to a specified person or body other than the Commonwealth or the CEO; or

  (b)   in the case of an instrument covered by subitem   (2)--the reference were a reference to a specified person or body other than the Commonwealth or the CEO; or

  (c)   in the case of an instrument covered by subitem   (3)--the reference were a reference to a specified person or body other than the CEO or a member of the staff of the Commission.

Determinations are not legislative instruments

(6)   A determination under subitem   (4) is not a legislative instrument.

10   Operation of laws

Things done by old Commission taken to be done by CEO

(1)   If, before the commencement time, a thing was done by, or in relation to, the old Commission (including the Board, the Managing Director or the Deputy Managing Director), then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done by, or in relation to, the CEO.

(2)   For the purposes of subitem   (1), a thing done before the commencement time under a provision that is amended by this Act has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.

Minister and regulations may provide otherwise

(3)   The Minister may, by writing, determine that subitem   (1):

  (a)   does not apply in relation to a specified thing done by, or in relation to, the old Commission; or

  (b)   applies as if the reference in that subitem to the CEO were a reference to the Commonwealth.

A determination under this subitem has effect accordingly.

(4)   The regulations may provide for a thing specified in a determination under paragraph   (3)(a) to be taken to have been done by, or in relation to, a specified person or body other than the Commonwealth or the CEO.

Meaning of doing

(5)   To avoid doubt, for the purposes of this item, doing a thing includes making an instrument.

Determinations are not legislative instruments

(6)   A determination made under subitem   (3) is not a legislative instrument.

11   Continued effect of certain instruments made under the old law

The amendments made to the following sections of the Australian Trade Commission Act 1985 do not affect the continuity of an instrument made under one of those sections:

  (a)   section   10;

  (b)   section   54;

  (c)   section   55;

  (d)   section   57;

  (e)   section   64;

  (f)   subsection 90(2).

12   Financial statements and other reporting requirements

Reporting requirements

(1)   If:

  (a)   immediately before the commencement time, a law required the old Commission (including the Managing Director) to provide a report (whether financial statements or otherwise) for a period; and

  (b)   the period ends after the commencement time;

the CEO must provide the report, as required, for so much of the period as occurs before the commencement time.

(2)   If:

  (a)   under subitem   (1), the CEO is required to provide a report for a part of a period; and

  (b)   the CEO is also required to provide a similar report for the remainder of the period;

the CEO may meet the requirements in a single report for the period.

Outstanding reporting requirements

(3)   If:

  (a)   a law required the old Commission (including the Managing Director) to provide a report (whether financial statements or otherwise) for a period that ended before the commencement time; and

  (b)   the report has not been provided by the commencement time;

the CEO must provide the report as required.

13   Continuation of secrecy obligations

Despite the amendment of section   94 of the Australian Trade Commission Act 1985 by this Act, that section continues to apply after the commencement time, in relation to anything done by a person to whom that section applies immediately before that time, as if the amendments had not been made.

Part   4 -- CEO and staff

14   CEO

The person holding office as the Managing Director under subsection 51(1) of the old law immediately before the commencement time is taken to have been duly appointed as the CEO by the Minister under subsection 51(1) of the new law:

  (a)   for the balance of the person's term of appointment that remained immediately before the commencement time; and

  (b)   on the same terms and conditions as applied to the person immediately before the commencement time.

15   Transfer of staff

(1)   The regulations may prescribe other matters of a transitional nature in relation to the transfer of staff from the old Commission to the new Commission.

(2)   Without limiting subitem   (1), regulations under that subitem may provide for:

  (a)   some or all of the entitlements and obligations of the staff of the old Commission to be preserved; or

  (b)   the old Commission's staffing procedures to apply, or to continue to apply, in relation to:

  (i)   processes begun before, but not completed by, the commencement time; or

  (ii)   things done by, for or in relation to the old Commission or a staff member of the old Commission before the commencement time; or

  (c)   the new Commission's staffing procedures to apply in relation to:

  (i)   processes begun before, but not completed by, the commencement time; or

  (ii)   things done by, for or in relation to the old Commission or a staff member of the old Commission before the commencement time.

(3)   Regulations made under this item have effect despite the Public Service Act 1999 .

(4)   In this item:

staffing procedures includes procedures and policies related to recruitment, promotion, performance management, inefficiency, misconduct, forfeiture of position, fitness for duty, loss of essential qualifications, disciplinary action, reviews of or appeals against staffing decisions, transfers, redundancy, resignations, termination of employment, grievance processes and leave.

Part   5 -- Miscellaneous

17   Exemption from stamp duty and other State or Territory taxes

No stamp duty or other tax is payable under a law of a State or Territory in respect of, or in respect of anything connected with:

  (a)   the transfer of an asset or liability under this Schedule; or

  (b)   the operation of this Schedule in any other respect.

18   Constitutional safety net--acquisition of property

(1)   If the operation of this Schedule would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2)   If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

19   Certificates taken to be authentic

A document that appears to be a certificate made or issued under a particular provision of this Schedule:

  (a)   is taken to be such a certificate; and

  (b)   is taken to have been properly given;

unless the contrary is established.

20   Delegation by Minister

(1)   The Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule to the CEO.

(2)   In exercising or performing powers or functions under a delegation, the delegate must comply with any directions of the Minister.

21   Regulations

(1)   The Governor - General may make regulations prescribing matters:

  (a)   required or permitted by this Schedule to be prescribed; or

  (b)   necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.

(2)   In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.

Notes to the Australian Trade Commission Legislation Amendment Act 2006

Note 1

The Australian Trade Commission Legislation Amendment Act 2006 as shown in this compilation comprises Act No.   56 , 20 06 amended as indicated in the Tables below.

Table of Acts

Table of Amendments