Bills Digest No. 187  1999-2000Transport Legislation Amendment Bill 2000


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 & Copyright Details

Passage History

Transport Legislation Amendment Bill 2000

Date Introduced: 30 May 2000

House: House of Representatives

Portfolio: Transport and Regional Services

Commencement: Royal Assent, except Item 1 of Schedule 2 (see below).

Purpose

To:

  • postpone the commencement of provisions in the Transport and Communications Legislation Amendment Act (No. 2) 1992 relating to dumping of sewage and disposal of garbage at sea in and around the 'Antarctic Area'
  • rectify incorrect cross references in the Australian National Railways Commission Act 1983 and Australian National Railways Commission Sale Act 1997, and
  • amend the Australian National Railways Commission Sale Act 1997 to preserve certain provisions in the Australian National Railways Commission Act 1983 relating to registration of property transfers from the Commission.

 

Background

This Bill contains two Schedules. The first relates broadly to the 'Madrid Protocol' and the second relates to the sale of Australian National Railways (AN). The amendments relating to the 'Madrid Protocol' were contained in the Transport and Territories Legislation Amendment Bill 1999.(1) The amendments relating to the sale of AN were introduced late into the Senate as Government amendments to that Bill.(2) However, the Bill was delayed in Committee stage as a result of opposition to its Schedules 2 and 3 (which sought to make changes in relation to industrial disputes in Christmas Island and Cocos (Keeling) Islands).

The 'Madrid Protocol'

Transport and Territories Legislation Amendment Bill 1999

The Transport and Territories Legislation Amendment Bill 1999 proposed to amend 5 existing Acts and to correct minor drafting errors in another 6 Acts.

The Bill sought to amend the Transport and Communications Legislation Amendment Act (No.2) 1992. This Act contains provisions(3) designed to enable Australia to legally enforce its obligations under Annexe IV(4) of the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol). These provisions were to commence on a 'date to be fixed by proclamation, being the day on which the Protocol...enters into force'.(5) 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 Madrid 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.

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

Section 2(6) of the Transport and Communications Legislation Amendment Act (No. 2) 1992 (the Amending Act) currently provides that amendments to the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (the Pollution Act) relating to the Madrid Protocol will commence on the day on which the Madrid Protocol 'enters into force'. The relevant amendments are contained in the following provisions of the Act:

  • s 30(3) of the Amending Act amends the definitions provision (s 3) of the Pollution Act to incorporate definitions of 'Antarctic Area' and 'Madrid Protocol';
  • ss 36-42 insert 'Division 1-Discharge of sewage in the Antarctic Area' into Part IIIB of the Pollution Act. These provisions seek to implement Annex IV of the Madrid Protocol which regulate the discharge of sewage and garbage within and beyond the 'Antarctic Area'. Section 36 provides that discharge of sewage in the 'Antarctic Area' is lawful if it is done in an emergency or in a controlled fashion.(6) Sections 37-41 incorporate references to the 'Madrid Protocol' into provisions dealing with sewage discharge outside the 'Antarctic Area'. Section 41 regulates the disposal of garbage, allowing discharge of food waste if done in a controlled fashion.(7)
  • s 44(4) inserts the Madrid Protocol into the Schedule of the Pollution Act.

Sale of Australian National Railways

Australian National Railways Commission Act 1983

Part VA of the Australian National Railways Commission Act 1983 (AN Act) provides for the winding down of the operations of the Commission prior to the Commission being abolished by the repeal of the Act. Section 67AZR of that part allows the Commonwealth Minister for Finance to enter into an agreement with South Australia that terminates or varies agreements contained in a number of Acts, including the 'Port Augusta to Whyalla Railway Agreement Act 1970'. In the Port Augusta to Whyalla Railway Agreement the Commonwealth undertook to build and maintain a rail link and associated public works between Port Augusta and Whyalla. The State agreed to provide certain raw materials.

The reference to the 'Port Augusta to Whyalla Railway Agreement Act 1970' is an error - it should read the Port Augusta to Whyalla Railway Act 1970.

Australian National Railways Commission Sale Act 1997

Sections 67AE and 67AM of the Australian National Railways Commission Sale Act 1997 (AN Sale Act) provide for the transfer of assets from the Commission. These sections allow the Minister for Finance to transfer, by declaration, property interests (and restrictions) associated with the Commission. Under section 67AZJ, interests transferred by virtue of the declarations may be registered without any further formal legal processes.(8)

In order for the sale to proceed, it is desirable that these transfer provisions be preserved.

Main Provisions

Schedule 1 amends the Transport and Communications Legislation Amendment Act (No.2) 1992. The changes (originally proposed by the 1999 Bill) are intended to correct the potential difficulties created by the unexpected entry into force of the Madrid Protocol.

Item 1 omits from s 2(6) of that Act reference to the day on which the 'Madrid Protocol' comes into force, leaving the commencement of the Act to be fixed by Proclamation. Item 2 adds a caveat to s 2(6) such that ss 30(3), 36-42 and 44(4) will otherwise commence within 6 months of the commencement of the Transport Legislation Amendment Act 2000.

Schedule 2 amends the AN Act and the AN Sale Act.

Item 1 corrects references to the Port Augusta to Whyalla Railway Act 1970 in the AN Act. (It is taken to have commenced immediately after the commencement of Schedule 1 of the AN Sale Act.) Item 3 corrects a similar inaccurate reference in Schedule 3 of the AN Sale Act. Item 2 inserts a new Clause 4A into the AN Sale Act which preserves the operation of 67AZJ (67AE and 67AM).

Endnotes

  1. See Transport and Territories Legislation Amendment Bill 1999, Bills Digest No 98, 1999-2000 at http://www.aph.gov.au/library/pubs/bd/1999-2000/2000BD098.htm [9/6/00].
  2. See Senator Sue Mackay, Senate, Debates, 9 May 2000, p. 13616 at http://www.aph.gov.au/hansard/senate/dailys/ds090500.pdf [9/6/00].
  3. See sections 36-44 Transport and Communications Legislation Amendment Act (No.2) 1992.
  4. 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.
  5. Subsection 2(6) Transport and Communications Legislation Amendment Act (No.2) 1992.
  6. That is, discharge at a prescribed rate, from a holding tank beyond 12 nautical miles from land or ice shelf.
  7. That is, disposal of ground food waste beyond 12 nautical miles from land or ice shelf.
  8. That is 'without any conveyance, transfer or assignment'.

Contact Officer and Copyright Details

Nathan Hancock
23 June 2000
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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