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
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