Bills Digest no. 97 2009–10
Australian Astronomical Observatory
(Transitional Provisions) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Australian Astronomical Observatory
(Transitional Provisions) Bill 2009
Date introduced: 25 November 2009
House: House of Representatives
Portfolio: Innovation, Industry, Science and Research
Commencement: Sections 1 to 3 commence on Royal Assent. Schedules 1 and
2 commence on 1 July 2010 at the same time as the Australian Astronomical
Observatory Act 2009.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
This Bill repeals the Anglo-Australian
Telescope Agreement Act 1970 and makes transitional arrangements for the
establishment of the Australian Astronomical Observatory (the observatory) as a
unit within the Department of Innovation, Industry, Science and Research (the
Department) by providing (amongst other things) for the transfer of employees,
assets and liabilities from the Anglo-Australian Telescope Board (the Board) to
the Department.
This Bill is one of two Bills that establishes the observatory
within the Department and disbands the Board. For detailed background information
see the Bills
Digest for the Australian Astronomical Observatory Bill 2009.[1]
See the Explanatory Memorandum to the Australian
Astronomical Observatory Bill 2009 for details of the financial impact of these
Bills.
Schedule
1—Anglo-Australian Telescope Agreement Act 1970
Proposed section 1 of Schedule 1 repeals the Anglo-Australian
Telescope Agreement Act 1970 in its entirety.[2]
Proposed section 1 of Schedule 2 contains a number of
definitions relating to the operation of Schedule 2.
Proposed section 2 applies to the assets of the
Anglo-Australian Telescope Board immediately before the transition time.[3] Proposed subsection 2(2) vests the assets of the Board at transition
time in the Commonwealth. The Commonwealth becomes the successor in law, that
is, the assets become the property of the Commonwealth without any conveyance,
transfer or assignment.
Proposed section 3 applies to the liabilities of the
Board immediately before transition time. Proposed subsection 3(2) provides
that the liabilities of the Board become the liabilities of the Commonwealth.
The Commonwealth becomes the successor in law for the liabilities of the Board,
that is, the Commonwealth becomes responsible for those liabilities without any
conveyance, transfer or assignment.
Proposed section 4 of Schedule 2 applies if any
land vests in the Commonwealth under Part 2 and a certificate is lodged with a
land registration official that is signed by the Minister and identifies the land
and states that the land vests in the Commonwealth under Part 2 of Schedule 2. Proposed
subsection 4(2) allows the land registration official to register the
matter and deal with and give effect to the certificate.[4] A certificate under paragraph 4(1)(b) is not a legislative instrument which
means that it is not subject to the disallowance procedures in the Legislative
Instruments Act 2003 (proposed subsection 4(3)).
Proposed section 5 of Schedule 2 applies if any asset
other than land vests in the Commonwealth under Part 2 and a certificate is
lodged with the appropriate assets official[5] and the certificate is signed by the Minister, identifies the asset and states
that the asset vests in the Commonwealth under Part 2 of Schedule 2. Proposed
subsection 5(2) provides that the assets official may deal with and give
effect to the certificate as if it were an instrument that is proper and
appropriate for transactions in relation to assets of that kind and to make any
necessary changes to the register. Proposed subsection 5(3) states that
the certificate under paragraph 5(1)(b) is not a legislative instrument and
therefore not subject to the Legislative Instruments Act 2003.
Proposed section 6 is a transitional provision which
provides that anything done by, or in relation to, the Board before the
transition time has effect after the transition time as if it had been done by,
or in relation to, the Commonwealth.[6]
Proposed section 7 applies if the Board was a party
in any proceedings pending before a court or tribunal immediately before the
transition time. Proposed subsection 7(2) substitutes the Commonwealth
for the Board as a party to the proceedings from the transition time.
Proposed section 9 is a transitional provision which provides
that if a complaint was made to the Ombudsman or an investigation was underway
in relation to an action taken by the Board and the matter had not been
finalised by the Ombudsman immediately before the transition time, then the Ombudsman
Act 1976 applies after the transition time as if the action had been taken
by the Department. The Department will in other words be the responsible party
and not the Board.
Proposed subsection 10(1) provides that if there is a
reference to the Board in an instrument that was in force immediately before
the transition time and the instrument is of a kind mentioned in paragraph 10(1)(b),
then the reference has effect as though it were a reference to the
Commonwealth. The types of instruments listed in paragraph 10(1)(b) include an
instrument:
- made by the Board
- to which the Board was a party
- that was given to, or in favour of, the Board
- where any right or liability accrues or may accrue to the Board, and
- any other instrument in which a reference is made to the Board.
Proposed subsection 10(2) defines instrument and exempt instrument.
Proposed section 11 provides that after the transition
time, references to the Board are to be read as references to the Department
for the purposes of an Appropriation Act. Proposed subsection 11(2) defines Appropriation Act as an Act appropriating money for expenditure out
of the Consolidated Revenue Fund.
Proposed subsection 12(1) provides that section 14 of
the Anglo-Australian Telescope Agreement Act 1970, although repealed by
this Act, continues to apply in relation to the Board being subject to an
inspection and audit for the financial year that commenced on or before 1 July
2009. Proposed subsection 12(2) states that subsection 12(1) is subject
to subsections 12(3) and 12(4).
Proposed subsection 12(3) provides that a reference
in section 14 to records of the Board includes a reference to records
transferred to the Department under proposed section 8 of Schedule 2. Proposed
subsection 12(4) provides that reference in section 14 to an
employee of the Board includes a reference to an employee in the Department.
Proposed section 14 provides that the responsible
financial officer must, as soon as practicable after the end of the financial
year, prepare and submit a report to the Minister for presentation to the Parliament
on the operations of the Board for the financial year that began on 1 July
2009.
Proposed subsection 15(1) provides that the Secretary
may appoint in writing a financial officer for the purposes of Schedule 2. The
financial officer must be an SES employee or an acting SES employee, or hold or
be acting in an Executive Level 1 or 2 or equivalent position (proposed subsection
15(2)).[7]
Proposed subsection 16(1) defines a transferring
employee. Proposed subsection 16(2) provides that if a transferring
employee is covered by a designated agreement immediately before the transition
time then that agreement covers the Commonwealth and the transferring employee
in relation to observatory work and no other agreement will apply to that
employee. The agreement has effect as if it had been made with the Secretary. If
the transferring employee becomes an SES employee after the transition time, then
paragraphs 16(2)(c), (d) and (e), relating to the designated agreement, cease
to apply to the transferring employee.
Proposed subsection 16(3) defines a new employee.
If a designated agreement covers the Commonwealth because of subsection 16(2) and
after the transition time a person becomes a new employee, then that agreement
will cover the Commonwealth and the new employee in relation to AAO work and no
other agreement will apply (subsection 16(4)).
Proposed section 17 relates to the accrued
entitlements of employees of the Board and their transfer to the Department. Proposed
subsection 17(2) provides that a person’s accrued entitlement to benefits
as an APS employee immediately before transition time will be equivalent to
their entitlement as an employee of the Board. That is, the entitlements will
not vary between the Board before transition time and the Department after
transition time. Proposed subsection 17(3) states that the service as an
employee of the Board will be taken for all purposes to have been continuous
with the person’s service as an APS employee.
Proposed section 19 of Schedule 2 applies to
employees of the Board who, before transition time, had suffered an injury
resulting in an incapacity for work or impairment. Proposed subsection 19(2) applies certain sections of the Safety, Rehabilitation and Compensation Act
1988 after the transition time as if the employee were employed by the
Department. Proposed subsection 19(3) provides that for the
purposes of section 40 of the Safety, Rehabilitation and Compensation Act
1988, the Department is the relevant employer of the employee.
Proposed section 20 of Schedule 2 relates to
exemption from stamp duty and other state or territory taxes. Proposed subsection
20(1) provides there is no stamp duty or tax payable under the law of a state
or territory for an ‘exempt matter’. Proposed subsection 20(2) defines
what is meant by an ‘exempt matter’. The Minister may certify in writing that a
specified matter is an ‘exempt matter’ or that a specified thing is connected
with a specified ‘exempt matter’ (proposed subsection 20(3)).
Proposed section 21 relates to the acquisition of
property by the Commonwealth on ‘just terms’ under paragraph 51(xxxi) of the
Constitution. Proposed subsection 21(1) provides that if property is
acquired by the Commonwealth other than on ‘just terms’, the Commonwealth is
liable to pay reasonable compensation to the person.
Proposed subsection 21(2) provides that if there is
no agreement on the amount of compensation, the person may institute
proceedings in a court of competent jurisdiction for reasonable compensation to
be determined by the court. Proposed subsection 21(3) defines
‘acquisition of property’ and ‘just terms’.
Proposed section 22 relates to the authenticity of
certificates made under Schedule 2. Certificates made under this Schedule are
taken to be properly given unless the contrary is established. Proposed subsection
23(1) allows the Minister to delegate any or all of his/her powers under
Schedule 2 to a person. That person must be the Secretary or an SES employee or
an acting SES employee (proposed subsection 23(2)).
Proposed section 24 provides that the
Governor-General may make regulations relating to matters arising out of the
repeal of the Anglo-Australian Telescope Agreement Act 1970.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2784.
[1]. M Coombs, Australian
Astronomical Observatory Bill 2009, Bills digest, no. 95, 2009–10,
Parliamentary Library, Canberra, 2010, viewed 3 February 2010, http://www.aph.gov.au/library/pubs/bd/2009-10/10bd095.pdf
[2]. Note that
proposed sections 12 and 13 of Schedule 2 nonetheless in effect retain
obligations arising under sections 14 and 19 of the Anglo-Australian
Telescope Agreement Act 1970 relating to inspection, audit, and the
preparation of final financial statements that began on or before 1 July 2009.
[3]. ‘Transition
time’ is defined in proposed section 1 of Schedule 2 as ‘the commencement of
this Schedule’ being 1 July 2010.
[4]. The
Explanatory Memorandum notes that ‘as of the date of introduction of this Bill
to the Parliament, the Board has no registered assets in land to be transferred
and that this item is not expected to be used’: Explanatory Memorandum,
Australian Astronomical Observatory (Transitional Provisions) Bill 2009, p. 5.
[5]. The
Explanatory Memorandum clarifies that an assets official is ‘the person or
authority who, under a law of the Commonwealth, a State or a Territory, a trust
instrument or otherwise, has responsibility for keeping a register in relation
to the assets of the kind concerned’: Ibid., p. 6.
[6]. Ibid., p.
6.
[7]. ‘SES
employee’ is defined in section 34 of the Public Service Act 1999 as
‘those APS employees who are classified as SES employees under the
Classification Rules’. See also section 17AA of the Acts Interpretation Act
1901.
Moira Coombs
5 February 2010
Bills Digest Service
Parliamentary Library
This work is copyright. Except to the extent of uses permitted by the
Copyright Act 1968, no person may reproduce or transmit any part of this
work by any process without the prior written consent of the Parliamentary
Librarian. This requirement does not apply to members of the Parliament
of Australia acting in the course of their official duties.
This work has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Parliamentary Library, nor
do they constitute professional legal opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au.
Any concerns or complaints should be directed to the Parliamentary Librarian.
Parliamentary Library staff are available to discuss the contents of publications
with Senators and Members and their staff. To access this service, clients
may contact the author or the Library’s Central Entry Point for
referral.
|
