Bills Digest No. 98  1999-2000 Transport and Territories Legislation Amendment Bill 1999


Numerical Index | Alphabetical Index

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
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Transport and Territories Legislation Amendment Bill 1999

Date Introduced: 8 December 1999

House: House of Representatives

Portfolio: Transport and Regional Services

Commencement: On Royal Assent

Purpose

To amend various Acts, most notably to:

  • allow for the commencement of legislation implementing Australia's obligations to prevent the discharge of sewage and disposal of garbage from ships in the Antarctic region
  • bring Western Australian employees working on Christmas and Cocos (Keeling) Islands for Western Australian employers under the same industrial relations regime as would operate if they were working on the Western Australian mainland, and
  • allow for the appointment of Parliamentary Secretaries in the Northern Territory Parliament.

 

Background

The Transport and Territories Legislation Amendment Bill 1999 proposes to make substantive amendments to 5 existing Acts and correct minor drafting errors in another 6 Acts. The following provides background on the substantive amendments.

Schedule 1 of the Bill amends the Transport and Communications Legislation Amendment Act (No.2) 1992. The 1992 Act contains provisions(1) designed to enable Australia to legally enforce its obligations under Annexe IV(2) of the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty. These provisions were to commence on a 'date to be fixed by proclamation, being the day on which the Protocol...enters into force'.(3) However, Japan 'unexpectedly' ratified the Protocol on 14 December 1997, which triggered its entry into force on 14 January 1998. As there were no meetings of the Executive Council in this time no proclamation could be made on or before 14 January. The relevant provisions of the 1992 Act have therefore remained inoperative. Given that Australia ratified the Protocol in 1994, it could be argued that Australia has been in technical breach of its international obligations since 1998 by failing to ensure that it could effectively enforce the terms of Annexe IV. The proposed changes are intended to correct this situation.

Schedule 2 of the Bill amends the Christmas Island Act 1958. During most of the 20th century, Christmas Island was governed by the colonial administration in Singapore. Responsibility was transferred from the United Kingdom to Australia in 1958 and Christmas Island is now an Australian external territory. The 1958 Act sets out the legal framework applicable to the Territory.

Following a 1991 House of Representatives inquiry into the legal system of Australia's various external territories,(4) the 1958 Act was amended in 1992(5) whereby most of the previous laws were repealed and Western Australia (WA) laws were applied. (6)Other amendments provided that the Commonwealth could enter into arrangements with WA for the effective application and administration of the laws in force in the Territory.(7)

When the Commonwealth started negotiating service delivery arrangements (SDAs) with WA, the WA Government became concerned that section 8F of the 1958 Act, which modified the then Industrial Relations Act 1988 (Commonwealth) by removing the 'interstateness' requirement from the definition of industrial dispute in subsection 4(1)(8) would potentially result in WA State employees working in the Territory under SDAs to become subject to Commonwealth industrial relations law. In relation to industrial disputes this would mean that should a dispute arise in the Territory amongst WA employees it could spread to WA, thus crossing a State boundary and thereby triggering Commonwealth industrial relations law. The WA Government was also concerned that, although the Industrial Relations Act 1979 (WA) would apply to WA employees and employers in the Territories in relation to awards and industrial agreements, not all of that Act had practical extra-territorial application.

Following the raising of these concerns, in 1993 the Australian Council of Trade Unions (ACTU) apparently gave a commitment to WA that the Territory's industrial relations situation was of no relevance to the State of WA and neither the ACTU nor the Trades and Labour Council would seek to apply Christmas Island conditions of work to mainland employees.

This was apparently insufficient for the WA government and the Premier wrote to the Commonwealth Minister at the end of 1993 advising that WA would not to enter into any further SDAs involving on-island employment until a suitable industrial relations regime was in place.

Following further negotiations, it was agreed early in 1994 that a modified version of the Industrial Relations Act 1979 (WA) would be applied which would only cover WA employers and employees in the Territory. However, this first required section 8F of the 1958 Act to be amended so as to 'disapply' the Industrial Relations Act 1988 from WA employees and employers. Amendments were drafted in 1995 and modified with the application of the Workplace Relations Act 1996. Delays in getting amendments to Parliament occurred while awaiting the outcome of constitutional challenges in the High Court(9) and the introduction of the Workplace Relations Act Act 1996.

The situation then as it now stands is that the 1958 Act incorporates aspects of the Workplace Relations Act 1996 such that in many cases if WA employees working for WA employers move from the mainland to the Territory, they may become subject to the Commonwealth industrial relations regime, including in relation to industrial disputes, appeals against unfair dismissal, certified and workplace agreements. The proposed changes alter the application of the Workplace Relations Act 1996 so as to transfer jurisdiction in certain circumstances from Commonwealth to WA law.

The position of the ACTU and its relevant affiliated unions regarding the proposed changes is apparently under consideration.

Schedule 3 amends the Cocos (Keeling) Islands Act 1955 in the same manner and purpose as the Christmas Island Act 1958 discussed above in relation to Schedule 2. The Cocos (Keeling) Islands were originally settled by John-Clunies Ross in the 1820's. Title to the Island was granted to the Clunies-Ross family in 1886, subject to the right of repossession by the Crown for public purposes.(10) Responsibility was transferred from the United Kingdom to Australia in 1955 and is now an Australian external territory. The 1955 Act sets out the legal framework applicable to the Territory.(11)

Schedule 4 relates to the National Capital Authority. The National Capital Authority administers the National Plan, which oversights Canberra's planning regime, and administers 'National Land' in the ACT. Section 42(2) of the Australian Capital Territory (Planning and Land Management) Act 1988 currently requires that a member of the Authority cannot be present at any discussion or decision at a meeting on an issue where they have declared a pecuniary interest. This means that if that member is the full-time member(12) of the Authority, a quorum cannot be formed unless the relevant Minister appoints an acting full-time member or alternatively the Minister or the Authority decide that the member can stay notwithstanding their conflict of interest. The proposed changes eliminate the need for a full-time member to be present under section 42(2) situations.

Schedule 5 amends the Northern Territory (Self-Government) Act 1978 to legislatively recognise the position of Parliamentary Secretary. In 1998, a member of the Northern Territory legislative assembly was appointed by the then Chief Minister to the position Secretary of the Cabinet, effectively a Parliamentary Secretary position. However, given the 1978 Act made no reference to Parliamentary Secretaries, the position did not carry a separate salary, nor could the appointee participate as a member of the Territory's Executive Council.

Main Provisions

Schedule 1

Items 1 and 2 amends subsection 2(6) and inserts new subsection 2(6A) respectively which modify the commencement date of Transport and Communications Legislation Amendment Act (No.2) 1992 to one to be fixed by proclamation, or failing that, within six months of Royal Assent to the 1999 Bill.

Schedule 2

Item 5 repeals the existing section 8F of the Christmas Island Act 1958. Section 8F is the controlling provision for determining whether the relevant Commonwealth Workplace Relations Act 1996 applies to industrial disputes relating to the Christmas Island Territory.

Item 6 inserts new sections 8J-8P.

Section 8J replaces the repealed 8F. The key sections in 8J are subsections 8J(3) and 8J(4).

New subsection 8J(3) provides that an 'industrial dispute...that is solely about the employment of WA employees(13) in WA or the Territory, or both, is not taken to be an industrial dispute that extends beyond the limits of the Territory'. Such disputes are therefore outside of the jurisdiction of the Workplace Relations Act 1996.(14)

New subsection 8J(4) provides that an 'industrial dispute about employment of persons who are employed to do work wholly or mainly in the Territory is taken to be an industrial dispute in the Territory' and thus again thus outside of the jurisdiction of the Workplace Relations Act 1996.

The effect of new section 8K is that a WA employee as defined in section 8P is not subject to the workplace agreement provisions of the Workplace Relations Act 1996.

New section 8L means that a WA employee as defined in section 8P employed in the Territory cannot apply to the Industrial Relations Commission for relief if terminated.

The effect of new section 8M is that the Australian workplace award (AWA) provisions of the Workplace Relations Act 1996 will not be applicable to person working in the Territory if at the time the AWA was filed they are a WA employee as defined in section 8P.

New section 8N confirms that section 7(2) Workplace Relations Act 1996 is not affected by the amendments in Schedule 2. Section 7(2) says that the 1996 Act applies in relation to Christmas Island 'with such modifications as are prescribed'.

New section 8P defines 'WA employee' as outlined in endnote 13.

Schedule 3

This schedule mirrors the amendments proposed in Schedule 2 except that 'Territory' means the Cocos (Keeling) Islands rather than Christmas Island.

Item 5 repeals the existing section 8F of the Cocos (Keeling) Islands Act 1955. Section 8F is the controlling provision for determining whether the relevant Commonwealth Workplace Relations Act 1996 applies to industrial disputes relating to Cocos (Keeling) Islands.

Item 6 inserts new sections 8J-8N.

Section 8J replaces the repealed 8F. The key sections in 8J are subsections 8J(3) and 8J(4).

New subsection 8J(3) provides that an 'industrial dispute...that is solely about the employment of WA employees(15) in WA or the Territory, or both, is not taken to be an industrial dispute that extends beyond the limits of the Territory'. Such disputes are therefore outside of the jurisdiction of the Workplace Relations Act 1996.

New subsection 8J(4) provides that an 'industrial dispute about employment of persons who are employed to do work wholly or mainly in the Territory is taken to be an industrial dispute in the Territory' and thus again outside of the jurisdiction of the Workplace Relations Act 1996.

The effect of new section 8K is that a WA employee as defined in section 8N is not subject to the workplace agreements provisions of the Workplace Relations Act 1996.

New section 8L means that a WA employee as defined in section 8N employed in the Territory cannot apply to the Industrial Relations Commission for relief if terminated.

The effect of new section 8M is that the Australian workplace award (AWA) provisions of the Workplace Relations Act 1996 will not be applicable to person working in the Territory if at the time the AWA was filed they are a WA employee as defined in section 8N.

New section 8N defines 'WA employee' in same terms as schedule 2.

Schedule 4

Item 1 amends existing subsection 43(6) of the Australian Capital Territory (Planning and Land Management) Act 1988 to make it subject to new subsection 43(6A).

Item 2 inserts new subsection 43(6A) which defines what constitutes a quorum for National Capital Authority meetings where the full-time member of the Authority is absent due to a declared pecuniary interest. The effect is that the full-time member does not have to be present to form a quorum.

Schedule 5

Item 1 inserts a new subsection 4(1) into the Northern Territory (Self-Government) Act 1978 to define the Office of Parliamentary Secretary.

Items 2-6, 8, 10, 12-13 essentially add the words 'Parliamentary Secretaries of the Territory' to sections of the 1978 Act where words 'Ministers of the Territory' currently appear. The main effect of this is that Parliamentary Secretaries become members of the Executive Council: see item 6 amending subsection 33(2).

Item 7 inserts a new section 34A which allows the number of Parliamentary Secretaries and their respective responsibilities to be determined 'from time to time' by the Administrator.(16)

Item 9 inserts a new section 36A to empower the Administrator to appoint a member of the Northern Territory legislative assembly to the office of Parliamentary Secretary. As is the case for Ministers, the Administrator may terminate the appointment at any time.

Item 11 inserts a new subsection 38(2A) that requires a prospective Parliamentary Secretary to take an oath or affirmation before taking up their office. The form of the oath or affirmation is equivalent to that for Ministers.

Items 15-56 amend gender specific language in the 1978 Act by replacing 'he' with 'he or she'.

Endnotes

  1. See sections 36-44 Transport and Communications Legislation Amendment Act (No.2) 1992.

  2. Annexe IV deals with the prevention of ship-based marine pollution, especially sewage and garbage. A full text of the Annexe can be found at http://www.antcrc.utas.edu.au/opor/Treaties/madprot2.html

  3. Subsection 2(6) Transport and Communications Legislation Amendment Act (No.2) 1992.

  4. Report of the House of Representatives Standing Committee on Legal and Constitution Affairs, Islands in the Sun, 1991

  5. Territories Law Reform Act 1992.

  6. See section 8A. While it did not address the specific issue of industrial law, the Islands in the Sun report concluded that the overwhelming view of the Territory's population was that the general legal regime of Western Australia should apply to the Island. This view was based on geographical proximity and the populations 'close connections' with Western Australia. See pp. 54-55 of the report

  7. Section 8H.

  8. This was done so the 1988 Act would apply to the Territory.

  9. See Victoria v Commonwealth; SA v Commonwealth; WA v Commonwealth (1996) 138 ALR 129.

  10. ibid, p. 70.

  11. Note that the Islands in the Sun report also found that Cocos (Keeling) Island residents preferred Western Australia law. Ibid, p. 90.

  12. The Chief Executive is the only full time member of the Authority. This person may also fill the position of Chairperson of the Authority.

  13. The term 'WA employee' means an employee working in the territory and covered by a WA award or a WA workplace agreement, or employed by a employer connected with WA: see new section 8P. In general terms, an 'employer connected with WA' means an employer that is domiciled, resident, registered or incorporated in the State or is the holder of a licence, lease, tenement, permit, or other authority, granted under a WA law or public authority. See section 3 Industrial Relations Act 1979 WA for the full legal definition.

  14. The industrial disputes provisions of the Workplace Relations Act 1996 do not generally apply when the dispute in question is confined to one State.

  15. Other than the substitution of Cocos (Keeling Islands) for Christmas Island, the term 'WA employee' means the same as in new section 8P in schedule 2.

  16. The Administrator is the equivalent of a State Governor.

Contact Officer and Copyright Details

Angus Martyn
25 December 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000.

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