Bills Digest No. 40, 2019–20
PDF version [521KB]
Kaushik Ramesh
Law and Bills Digest Section
11 October 2019
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 11
September 2019
House: Senate
Portfolio: Infrastructure,
Transport, Cities and Regional Development
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2019.
Purpose of
the Bill
The purpose of the ANL Legislation Repeal Bill 2019 (the
Bill) is to repeal the entirety of the ANL Act 1956
(ANL Act) and the ANL Guarantee Act
1994 (Guarantee Act) which have become redundant now that ANL
Limited (ANL) no longer exists as a government owned company. The repeal of the
ANL Act in particular will remove the current restrictions on ‘protected
names’ in relation to ANL, thereby allowing businesses to use these names in a
commercial context (such as through the registration of domain names).
Background
Brief history
of ANL
ANL was a Commonwealth owned shipping company that had its
origins in the need to operate Commonwealth owned vessels in the 20th century.[1]
The company was previously known as the Australian Shipping Commission and
traded as the Australian National Line prior to being converted into a public
company from 1 July 1989 by the ANL (Conversion
into Public Company) Act 1988.[2]
The conversion of ANL to a public company did not affect its ownership as 100%
of the company’s shares were still owned by the Commonwealth; however it
allowed for the potential introduction of private share capital in the event
that the Government decided to sell part or all of ANL.[3]
The intentions of this conversion were to take further steps in the
commercialisation of ANL and allow for a change in its corporate culture
appropriate for a commercial organisation.[4]
In early 1991, the Government declared an intention to
privatise ANL in light of its deteriorating financial performance and the
company’s failure to meet targets set out in its 1989/92 corporate plan.[5]
ANL was progressively restructured from 1995 and legislation was introduced to
facilitate its sale.[6]
The Guarantee Act (which will be repealed by the Bill) was also passed
and had the effect of underpinning the restructuring process by guaranteeing
all existing debts of the company, thereby ensuring ANL’s financiers maintained
confidence in the company during the restructure.[7]
In 1998, ANL’s liner shipping business component was sold
to ANL Container Line Pty Ltd, a subsidiary of Compagnie General Maritime (now
CMA CGM).[8]
The Explanatory Memorandum to the Bill notes that this sale included the
intellectual property associated with the business.[9]
ANL’s bulk shipping business was sold to AUSCAN Self-Unloaders Pty Ltd.[10]
The Government created the Australian River Co. Limited in 1997 to hold ANL’s
residual assets and liabilities following its partial sale in 1998; this
company began the process of winding up in 2002 and was subsequently wound up
on 15 July 2015.[11]
The Explanatory Memorandum notes that the majority of
provisions in the ANL Act and the entirety of the Guarantee Act
now have no practical effect given the sale of ANL:
These provisions [of the ANL Act] set out a number of matters
relating to the operation of ANL Limited as a Commonwealth-owned business,
including staffing and taxation matters. As these arrangements were resolved at
the time of the sale, repealing these provisions will not impact the rights or
entitlements of former employees, and will remove redundant legislation.
The Guarantee Act can also be repealed without negative
impact. The Guarantee Act is a short Act which allows the Treasurer to
guarantee loans to ANL Limited. As ANL Limited is no longer a Commonwealth
company and has not existed as a legal entity since 2003, the Guarantee Act has
no practical effect.[12]
The private shipping company ANL Container Line Pty Ltd
(commonly known as ANL) is currently part of the CMA CGM group and has its
headquarters in Melbourne.[13]
Committee
consideration
Senate
Standing Committee for Selection of Bills
In its report of 12 September 2019, the Senate Standing
Committee for Selection of Bills recommended that the Bill not be referred to
committee for inquiry.[14]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
had no comment on the Bill.[15]
Policy
position of non-government parties
At the time of writing this Digest, there does not appear
to be any comments on this Bill from non-government parties or independents.
Position of
major interest groups
At the time of writing this Digest, there does not appear
to be any publically available comments on this Bill from any interest groups.
Financial
implications
The Government notes in the Explanatory Memorandum to the
Bill that the Bill is not expected to have any significant financial impact.[16]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[17]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights found
that the Bill does not raise human rights concerns.[18]
Key issues
and provisions
ANL as a
protected name
As highlighted in the ‘Background’ section above, the ANL
Act and the Guarantee Act are now largely redundant given that there
is no longer a Commonwealth owned ANL. The ANL Act provides for a range
of matters including requirements for the conversion of ANL to a public
company, staffing matters and taxation matters. The Explanatory Memorandum to
the Bill notes that these arrangements were resolved at the time of sale, and
the provisions no longer impact the rights or entitlements of former employees.[19]
The Guarantee Act allows the Treasurer to guarantee loans to ANL; this
Act is also redundant as the Commonwealth company ANL no longer exists as a
legal entity.[20]
Part IV of the ANL Act, however, still has
practical effect. Section 52 of the ANL Act in particular prohibits a
person other than the Commonwealth owned ANL (or any wholly-owned subsidiary)
from using certain protected names (or names closely resembling those protected
names so that they could likely be mistaken for them) for a range of purposes
including in relation to business/trade, as part of the name of a body
corporate, as a trademark and in relation to goods or services. The relevant
protected names are[21]:
- ANL
- Australian
National Line
- Maritime
Agencies of Australia[22]
and
- Searoad.[23]
The Explanatory Memorandum to the Bill notes that the
‘protected names’ provisions make it an offence to use these names in certain
business contexts, including domain names and registrations of intellectual
property.[24]
The status of these names as ‘protected names’ may notionally affect the
companies ANL Container Pty Limited and the Bass Strait shipping service
provider, SeaRoad.[25]
However, there appears to be a particular issue with the
car and passenger ferry service company Searoad Ferries and its ability to
renew its domain name. The administrator and regulatory body for the ‘.au’
domain space, auDA, lists the above protected names as ‘words and phrases that
are restricted under Commonwealth legislation’ on its Reserved List Policy,
meaning that these names cannot be used in websites in the ‘.au’ domain.[26]
Searoad Ferries currently holds the domain name ‘searoad.com.au’.
Minutes from auDA’s Board of Directors meetings highlight
that the Deputy Prime Minister and Minister for Infrastructure, Transport and
Regional Development requested that auDA approve the reregistration of Searoad
Ferries’ domain name before it expired on 24 February 2019. While advice to the
Board reaffirmed that restricted names cannot be registered as domains, the
Board resolved to permit the renewal of ‘searoad.com.au’ for one year in light
of advice from the Deputy Prime Minister that the Government is working to
repeal the ANL Act.[27]
The Bill’s key purpose, apart from repealing legislation
which is now redundant, is therefore to rectify situations such as these and to
allow maritime businesses to use these names in commercial contexts. This is
made clear in the Minister’s second reading speech accompanying the
introduction of the Bill:
One key exception [to the fact that most provisions of the
ANL Act no longer have practical effect] is the provisions of the ANL Act
protecting the use of the business name ‘ANL’ and other associated terms, such
as ‘Searoad’. These provisions have recently impeded the business operations
of a small number of maritime businesses, including by impeding the
re-registering of website names and registration of trademarks.
This is despite the affected businesses having used their
names for many years in good faith.
The protected name provisions of the ANL Act should have been
removed around the time of the 1998 sale. Having sold the ANL shipping line,
the Commonwealth no longer needed to protect these names. However the
protections were retained through an historical oversight.
This Bill corrects that oversight to honour the sale of
ANL in good faith, and remove unnecessary and unintended barriers for the
affected maritime businesses.
This will allow these businesses to get on with their
operations and making important contributions to our national economy, without
interference from unintended, historical regulatory barriers.[28]
(emphasis added)
The Bill consists of only two operative items. Item 1
of Schedule 1 of the Bill repeals the whole of the ANL Act and Item
2 of Schedule 1 of the Bill repeals the whole of the Guarantee
Act.
[1]. B
Bennett, ANL
Sale Bill 1997, Bills digest, 155, 1997–98, Department of the Parliamentary
Library, Canberra, 1998, p. 2.
[2]. Ibid.;
for more details on the history of ANL see ANL Limited (ANL), Annual
report 1990, ANL, Melbourne, 1990, pp. 1–3.
[3]. Legislative
Research Service, ANL
(Conversion to Public Company) Bill 1988, Bills digest, 88, Department
of the Parliamentary Library, Canberra, 27 September 1988, p. 2.
[4]. G
Evans (Minister for Transport and Communications), Reshaping
the transport and communications government business enterprises,
Australian Government Publishing Service (AGPS), Canberra, 1988, p. 18.
[5]. K
Trace, ‘"You
couldn’t give it away": privatising the Australian National Line’, Agenda,
2(4), 1995, p. 433.
[6]. The
ANL Sale Act
1995 was intended to facilitate the sale of the Commonwealth’s
shares in ANL, however, it was automatically repealed prior to the actual sale
taking place–see section 79 of that Act. The ANL
Sale Bill 1998 similarly dealt with the consequences of the intended sale
of ANL, but did not become law (however, this did not preclude the Government’s
ability to sell ANL; see Bennett, ANL
Sale Bill 1997, op. cit.).
[7]. C
Schacht, ‘Second
reading speech: ANL Guarantee Bill 1994’, Senate, Debates, 16
November 1994, p. 3157.
[8]. Pre-election economic
and fiscal outlook 1998, report by the Secretary to the Department of
the Treasury and the Secretary to the Department of Finance and Administration,
[Department of the Treasury and Department of Finance and Administration],
Canberra, 1998, p. 17; Department of Finance and Administration, Annual
report 2001–2002, Australian Government, Canberra, 2002, p. 226.
[9]. Explanatory
Memorandum, ANL Legislation Repeal Bill 2019, p. 2. An archived version of
the ANL Container Line Pty Ltd website (the private company ANL, not the
Government owned company) also notes that CMA CGM bought the naming rights of
ANL Limited from the Australian Government in 1998 (see ANL, ‘About
Us’, 4 July 2008, accessed via Wayback Machine Internet Archive).
[10]. Pre-election economic
and fiscal outlook 1998, op. cit., p. 17; T Colebatch, 'Shipping
giants get the nod for ANL bids', The Age, 31 July 1998, p. 2.
[11]. M
McCormack, ‘Second
reading speech: Australian River Co. Limited Bill 2015’, House of
Representatives, Debates, 26 February 2015, p. 1398;
Department of Finance, Annual
report 2015–16, Australian Government, Canberra, 2016, p. 5.
[12]. Explanatory
Memorandum, op. cit., p. 2.
[13]. ANL
‘About ANL’, ANL website, n.d.
[14]. Senate
Standing Committee for Selection of Bills, Report,
5, 2019, The Senate, 12 September 2019, p. 19.
[15]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny digest,
6, 2019, The Senate, 18 September 2019, p. 23.
[16]. Explanatory
Memorandum, op. cit., p. 2.
[17]. The
Statement of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum to the Bill.
[18]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 5, 2019, 17 September 2019, p. 16.
[19]. Explanatory
Memorandum, op. cit., p. 2.
[20]. Ibid.
[21]. ANL
Act 1956, section 3.
[22]. Maritime
Agencies of Australia was ANL’s dedicated port agency and ships husbandry
service provider (see ANL, Annual
report 1990, op. cit., p. 18; ANL, Annual
report 1992, ANL, Melbourne, 1992, p. 10).
[23]. ANL
Searoad Holdings Pty Ltd appears to have been a subsidiary company of ANL (see Australian
National Audit Office (ANAO), Results
of 1993–94 financial statement audits of Commonwealth entities, Audit
report, 22, 1994–95, ANAO, Canberra, 27 February 1995, p. 91). ANL/ the
Australian National Line also ran a ‘Searoad’ service across the Bass Strait
and managed a pure car carrier called Australian Searoad (see, for
example, ANL, Annual
report 1990, op. cit., p. 14; Australia, Parliament, Eleventh
annual report of the Australian Coastal Shipping Commission for year 1966–67,
Parl. Paper 166, Canberra, 1967, p. 8).
[24]. Explanatory
Memorandum, op. cit., p. 2.
[25]. Incidentally,
ANL previously held a 50% share in a former iteration of SeaRoad prior to this
share being sold in 1996, see SeaRoad, ‘History’, SeaRoad
website, n.d.
[26]. .au
Domain Administration Limited (.auDA), Reserved
List policy, .auDA published policy, 2014–06, .auDA, 8 January 2019.
[27]. .auDA,
Minutes
of a meeting of the Board of Directors, 24 January 2019, pp. 2–3; .auDA,
Minutes
of a meeting of the Board of Directors, 18 February 2019, pp. 1–2.
[28]. J
Duniam, ‘Second
reading speech: ANL Legislation Repeal Bill 2019’, Senate,
Debates, 11 September 2019, pp. 1962–1963.
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