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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
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
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.
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.
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'.
-
- See sections 36-44 Transport and Communications Legislation
Amendment Act (No.2) 1992.
- 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
- Subsection 2(6) Transport and Communications Legislation
Amendment Act (No.2) 1992.
- Report of the House of Representatives Standing Committee on
Legal and Constitution Affairs, Islands in the Sun, 1991
- Territories Law Reform Act 1992.
- 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
- Section 8H.
- This was done so the 1988 Act would apply to the Territory.
- See Victoria v Commonwealth; SA v Commonwealth; WA v
Commonwealth (1996) 138 ALR 129.
- ibid, p. 70.
- Note that the Islands in the Sun report also found that Cocos
(Keeling) Island residents preferred Western Australia law. Ibid,
p. 90.
- The Chief Executive is the only full time member of the
Authority. This person may also fill the position of Chairperson of
the Authority.
- 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.
- The industrial disputes provisions of the Workplace Relations
Act 1996 do not generally apply when the dispute in question is
confined to one State.
- 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.
- The Administrator is the equivalent of a State Governor.
Angus Martyn
25 December 1999
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ISSN 1328-8091
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