Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1997
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN NATIONAL RAILWAYS
COMMISSION SALE BILL
1997
EXPLANATORY
MEMORANDUM
(Circulated by the authority
of the
Minister for Transport and Regional Development,
the Hon John
Sharp MP)
88191 Cat. No. 96 7584 1 ISBN 0644
501103
AUSTRALIAN NATIONAL RAILWAYS COMMISSION
SALE BILL 1997
OUTLINE
The Australian National Railways Commission Sale Bill 1997 gives
effect to the Government’s decision to sell the non-interstate mainline
track rail assets of Australian National (the Commission). It provides
authority and mechanisms for the sale, including authority to repeal, replace or
amend rail agreements with South Australia and Tasmania following their
agreement to sale arrangements. It also provides for reduction of the
Commission to an entity charged with dealing with any residual functions,
litigation, disputes, assets and liabilities not able to be finalised or
disposed of prior to abolition.
The sale enables the injection of private
sector expertise into rail operations to promote cost reductions, service
responsiveness improvements and increased rail market share. It is a component
of the Government’s rail reform initiatives which propose the separation
of the management of the interstate rail track network from above track
operations with the Commonwealth’s role being to concentrate on
controlling and managing economically-efficient and non-discriminatory access to
the interstate rail network.
Schedule 1 of the Bill inserts a new Part in
the Australian National Railways Commission Act 1983, to provide flexible
arrangements for the transfer of assets, liabilities and contracts between the
Commission, the Commonwealth and new rail operators. It is proposed that the
Commission will be wound down through a combination of the transfer of assets to
companies formed under corporations law for sale as rail businesses, take over
of liabilities by the Commonwealth and direct sale of assets.
This will
enable the Commonwealth to sell the rail operations while retaining and meeting
the liabilities of the Commission. It also provides authority to the Minister
to enter into agreements with relevant States to replace or amend specified rail
agreements with the States to allow the sale to proceed. Similarly it provides
for the Minister for Finance to be authorised to sign agreements with purchasers
of the Commission rail businesses.
The Schedule also proposes a range of
provisions which are intended to both protect the Commonwealth from default by
the Commission as a result of the loss of assets and revenue generating capacity
and provisions to meet the liabilities of the Commission in order to protect
parties which have contracted to the Commission in good faith.
Schedule 2
amends existing provisions of the Australian National Railways Commission Act
1983 to enable the Commission to assist the Commonwealth with the sale and
to provide a power of direction which enables the Minister to direct the
Commission to facilitate disposal of its assets and liabilities.
Through
the sale process, the Commission will shed all its rail operations other than
the ownership and management of interstate track. The schedule proposes
transitional arrangements to facilitate the sale and to allow flexibility to
reduce the structure and size of the Commission as its responsibilities
contract.
Schedule 3 enables abolition of the Commission and the transfer
of residual assets, liabilities and contracts to the Commonwealth after the sale
has been completed and the Commission liabilities have been met. It also
enables repeal of specified legislation covering agreements with South Australia
and Tasmania after replacement agreements have been negotiated, tabled in
Parliament and taken effect.
Schedule 4 amends other acts in consequence
to the abolition of the Commission. Schedule 5 Part 1 enables fixtures to be
severed from railways land and to be sold to a rail operator. This will provide
them with increased incentive to maintain and improve rail infrastructure. Part
2 provides for access to railways for defence-related purposes and for emergency
or disaster relief, and compensation for that access.
FINANCIAL IMPACT
STATEMENT
The costs associated with the Commission sale have been
provided for in separate appropriations. In particular, it is expected that
some $355.8m will be expended from 1996/97 budget appropriations for the payment
of employee redundancy packages, unfunded provisions, outstanding contracts,
Commonwealth debt, environmental remediation, regional assistance and sales
costs. Further payments of $50.7m are estimated in relation to these items in
1997/98 with some $40m required for superannuation liabilities.
The
Bill authorises the assumption of the Commission debt and other financial
obligations by the Commonwealth. It is expected that funding in the order of
$1billion will be required for this purpose and budget provision has been made.
In addition, the Commonwealth will assume responsibility for the Commission
interest obligations estimated at $35m in 1997/98, declining to $5m in
2000/01.
The Government expects to receive a financial return from the
sale of the Commission businesses. However, due to the particular nature of the
businesses, it is not possible to provide estimates of likely sales revenue at
this time.
NOTES ON CLAUSES
Clause 1 - Short
Title
Clause 1 provides for the Act to be cited as the Australian
National Railways Commission Sale Act 1997
Clause 2 -
Commencement
The Australian National Railways Commission Sale Act
1997 commences on the day on which it receives the Royal Assent, unless
specified otherwise. Those items which will not commence at that time are:
• Schedule 3 Items 1-5 repeals the Act to abolish the Commission,
though provides that the provisions of the Act continue in relation to specified
matters, and will commence on a day to be fixed by proclamation when the
Commission’s activities are insufficient to justify its continued
operation.
• Schedule 3 Item 6 repeals the Seat of Government
Railway Act which provides for the Commission to provide rail services in the
ACT. Alternative arrangements will be made for these services during the wind
up period, and this Act will be repealed by proclamation when the Commission is
abolished.
• Schedule 3 Items 7-11 repeal existing legislation
covering rail agreements between the Commonwealth and South Australia and the
Commonwealth and Tasmania. These will commence on a day to be fixed by
proclamation, which must not be earlier than when new agreements are made with
the respective States under section 67AZR.
• Schedule 4 Items 8 and
9 repeal rail components of legislation covering a broader agreement with South
Australia and will commence on a day to be fixed by proclamation which must not
be earlier than when a new agreement, or agreements, are made with South
Australia under section 67AZR.
• Other items of Schedule 4 (other
than Item 2 amendment of Commonwealth Borrowing Levy Act 1987 which will
commence from the date of Royal Assent) are consequential to the abolition of
the Commission and will take effect on a day to be proclaimed when the
Commission is abolished under Schedule 3.
Clause 3 -
Schedule(s)
Clause 3 provides for the amendment and repeal of the
Australian National Railways Commission Act 1983 and a number of other
Acts as specified in the Schedules, and for other items in the Schedules to have
effect on their own terms.
SCHEDULE 1 - INSERTION OF NEW PART VA IN
THE AUSTRALIAN NATIONAL RAILWAYS COMMISSION ACT 1983
ITEM 1 - After Part V
The Schedule inserts a new Part VA after
the existing Part V of the Australian National Railways Commission Act
1983 to provide for the winding down of the Commission. It establishes
flexible arrangements for the Minister for Finance or the Commission to transfer
or sell assets, contracts and liabilities of the Commission to the Commonwealth
or to other persons. It also provides for the Commonwealth to take over and
meet obligations of the Commission.
The new Part also enables the
Commission and Commissioners to assist the Commonwealth in connection with the
sale and to pay to the Commonwealth proceeds from the sale or transfer of any of
the Commission’s assets or contracts.
The Part also makes certain
sale and Commission wind up transactions exempt from stamp duty and similar
taxes and provides for the Federal Court to grant injunctions relating to the
enforcement of the new Part. The new Part makes provision for compensation for
acquisition of property.
Provisions of the new Part VA -
Transfer of assets of Commission
DIVISION 1 - PRELIMINARY
New section 67AA - Purpose of Part
New section 67AA
provides that the purpose of the Part is to provide for the winding down of the
Commission prior to the Commission being abolished by repeal of this
Act.
New section 67AB - Simplified Outline
New section 67AB
provides a simplified outline of new Part VA.
New section 67AC -
Interpretation
This section defines terms used in the new
Part:
'Asset' means any legal or equitable estate or interest in real or
personal property, whether actual, contingent or prospective and any right,
power, privilege or immunity, whether actual, contingent or
prospective.
‘Commonwealth guaranteed liability’ means a
liability, and any other related obligations, whose satisfaction or performance
is guaranteed by the Commonwealth.
‘Contract’ includes a deed
and a deed poll.
‘Federal Court’ means the Federal Court of
Australia.
‘Instrument’ includes a
document.
‘Land registration official’ means the Registrar of
Titles or equivalent officer of the State or Territory in which the land is
situated.
‘Liability’ means any liability, duty or
obligation, whether actual, contingent or
prospective.
‘Obligation’ means any actual, contingent or
prospective obligation.
DIVISION 2 - TRANSFER OF ASSETS, LIABILITIES, RIGHTS AND OBLIGATIONS OF COMMISSION
This Division provides flexible arrangements for the transfer or sale of
assets, liabilities, rights and obligations of the Commission to the
Commonwealth or another person.
New Section 67AD - Minister for
Finance may direct Commission to sell or transfer assets
New
subsection 67AD(1) provides that the Minister for Finance may, by written notice
to the Commission, direct the Commission to sell or transfer a specified asset
of the Commission. Subsection 67AD(2) provides that the direction may specify
to the Commission requirements for the sale or transfer, including to whom,
when, how and the price that should apply to the transfer or sale.
New
subsection 67AD(3) provides that the Commission must comply with a direction.
Subsection 67AD(4) provides that new section 67AD does not limit the Minister
for Finance from directly transferring assets or contractual rights and
obligations from the Commission to the Commonwealth or other persons under new
sections 67AE or 67AF.
New Section 67AE - Transfer of assets by
declaration
New subsection 67AE(1) provides that the Minister for
Finance may, in writing, make any or all of the following
declarations:
(a) declare that specified assets of the Commission vest in
a specified person at a specified time without any conveyance, transfer or
assignment;
(b) declare that a specified instrument relating to a
specified asset transferred continues to have effect after the transfer as if a
reference in the instrument to the Commission were a reference to the person;
and
(c) declare that a specified person becomes the Commission’s
successor in law in relation to an asset immediately after the asset vests in
the person.
New subsection 67AE(2) provides that a declaration under
subsection (1) has effect according to its terms and new subsection 67AE(3)
requires a copy of declarations made under subsection (1) to be published in the
Gazette within 14 days of making the declaration. New subsection 67AE(4)
provides that new subsection (1) does not prevent the Commission from disposing
of assets in other ways than by Ministerial declaration unless disposal would be
contrary to a declaration.
New section 67AF - Transfer of contractual
rights and obligations by declaration.
New subsection 67AF(1)
provides that the Minister for Finance may, by writing, declare that the
Commission’s rights and obligations under a specified contract to which
the Commission is a party, cease to be rights and obligations of the Commission
at a specified time and transfer to a specified person at that time (a specified
person can be the Commonwealth).
New subsection 67AF(2) enables the
Minister for Finance to declare, in writing, that a specified contract continues
to have effect after a specified time, as if a reference in the contract to the
Commission were a reference to the Commonwealth or a specified
person.
New subsection 67AF(3) provides that the Minister for Finance
may, by writing, declare that a specified instrument relating to a specified
contract continues to have effect after the Commission’s rights and
obligations under the contract are transferred to a specified person, as if a
reference in the instrument to the Commission were a reference to the
person.
New subsection 67AF(4) provides that the Minister for Finance
may, by writing, declare that a specified person becomes the Commission’s
successor in law, in relation to the Commission’s rights and obligations
under a specified contract, immediately after those rights and
obligation’s transfer to the person.
New subsection 67AF(5)
provides that a declaration under new section 67AF has effect according to its
terms and subsection 67AF(6) requires that the declarations be published in the
Gazette within 14 days of making the declaration.
New subsection 67AF(7)
provides that section 67AF does not limit the Minister’s powers to make
declarations in relation to assets under section 67AE.
New section
67AG - Transfer of liabilities by declaration
New subsection 67AG(1)
provides that the Minister for Finance may in writing make any of the following
declarations in relation to any liability of the Commission other than a
liability which is guaranteed by the Commonwealth:
(a) a declaration that
a specified liability ceases to be a liability of the Commission and becomes a
liability of the Commonwealth or a specified person at a specified
time;
(b) a declaration that a specified instrument relating to a
specified liability continues to have effect after the liability is transferred
as if a reference in the instrument to the Commission were a reference to the
person to whom it is transferred;
(c) a declaration that a specified
person becomes the Commission’s successor in law in relation to a
specified liability immediately after the liability is transferred to the
person.
New subsection 67AG(2) provides that such a declaration has
effect according to its terms and new subsection 67AG(3) requires that such a
declaration is to be published in the Gazette within 14 days of making the
declaration.
New section 67AH - Commonwealth guaranteed liabilities of
the Commission
New section 67AH provides for the Minister for
Finance, may, by writing, declare that a specified liability of the Commission,
which is guaranteed by the Commonwealth, ceases to be a liability of the
Commonwealth and becomes a liability of the Commonwealth. The section has
effect according to its own terms and provides that the Treasurer may authorise
payments to discharge the liability from the Consolidated Revenue
Fund.
New section 67AJ - Consideration
This section is
intended to remove any doubt that transfers by declaration under this Division
may be made with or without the giving of consideration.
DIVISION 3 - CONTRACTS
This Division provides for the Commission to enter into contracts for the
purposes of the new Part VA.
New section 67AK - Commission may enter
into contracts
New subsection 67AK provides that the Commission may
enter into contracts for the purposes of assisting in the sale or wind down of
the Commission, for example to lease its assets to other persons, or to assign
its leases.
New section 67AL - Minister for Finance may direct
Commission to enter into contracts
New subsection 67AL provides that
the Minister for Finance may, by writing, direct the Commission to enter into
contracts under new section 67AK. A direction may specify to the Commission
details of the contract to be entered into, such as when and with whom the
contract should be made. The section also requires the Commission to comply
with this type of direction.
DIVISION 4 - TRANSFERS BY THE COMMONWEALTH
This Division provides flexible arrangements for the Minister for Finance to
transfer or sell assets, liabilities, rights and obligations that were
transferred from the Commission to the Commonwealth under Division 2 to another
person.
New section 67AM - Transfer of assets
New
subsection 67AM(1) provides that the Minister for Finance may, by writing, make
any or all of the following declarations in relation to an asset that has been
transferred to the Commonwealth by declaration under 67AE:
(a) a
declaration that a specified asset vests in a specified person at a specified
time without conveyance, transfer or assignment;
(b) a declaration that a
specified instrument relating to a specified asset continues to have effect
after the asset transfers to a specified person as if a reference in the
instrument to the Commonwealth were a reference to the person;
(c) a
declaration that a specified person becomes the Commonwealth's successor in law
in relation to an asset immediately after the asset transfers to the
person.
New subsection 67AM(2) provides that such a declaration has
effect according to its terms and subsection 67AM(3) requires declarations under
the section to be published in the Gazette within 14 days of making the
declaration.
New subsection 67AM(4) provides that subsection (1) does not
prevent the Commonwealth from transferring an asset to a person in some other
way.
New section 67AN Transfer of contractual rights and
obligations
New subsection 67AN(1) provides that the section applies
to rights and obligations under contracts transferred to the Commonwealth under
section 67AF.
New subsection 67AN(2) provides that the Minister for
Finance may, by writing, declare that the Commonwealth's rights and obligations
under a specified contract are transferred at a specified time to become rights
and obligations of a specified person.
New subsection 67AN(3) provides
that the Minister for Finance may, by writing, declare that a specified contract
continues to have effect after a specified time as if a reference in the
contract to the Commonwealth were a reference to a specified person.
New
subsection 67AN(4) provides that the Minister for Finance may, by writing,
declare that a specified instrument relating to a specified contract continues
to have effect, after the Commonwealth transfers the rights and obligations
under the contract to a specified person, as if a reference in the instrument to
the Commonwealth were a reference to the person.
New subsection 67AN(5)
provides that the Minister for Finance may, by writing, declare that a specified
person becomes the Commonwealth's successor in law in relation to the
Commonwealth's rights and obligations under a specified contract, immediately
after those rights and obligations become rights and obligations of the
person.
New subsection 67AN(6) provides that such a declaration has
effect according to its terms and new subsection 67AN(7) requires declarations
under the section to be published in the Gazette within 14 days of making the
declaration.
New subsection 67AN(8) provides that the section does not
prevent the Minister for Finance from transferring assets under section
67AM.
New section 67AP - Transfer of liabilities
New
subsection 67AP(1) provides that the section applies to a liability that was
transferred to the Commonwealth by declaration under section 67AG.
New
subsection 67AP(2) provides that the Minister for Finance may, by writing, make
any or all of the following declarations:
(a) a declaration that a
specified liability ceases to be a liability of the Commonwealth and becomes a
liability of a specified person at a specified time;
(b) a declaration
that a specified instrument relating to a specified liability continues to have
effect after the liability transfers to a specified person as if a reference in
the instrument to the Commonwealth were a reference to the person;
(c) a
declaration that a specified person becomes the Commonwealth’s successor
in law in relation to a specified liability immediately after the liability
transfers to the person.
New subsection 67AP(3) provides that such a
declaration has effect according to its terms and new subsection 67AP(4)
requires a copy of a declaration under the section to be published in the
Gazette within 14 days of making the declaration.
New Section 67AQ -
Consideration
This new section is intended to remove any doubt that
transfers by declaration under new Division 4 may be made with or without the
giving of consideration.
DIVISION 5 - PROCEEDS OF ASSET TRANSFERS TO BE PAID TO THE COMMONWEALTH
This division provides that proceeds of assets sold as a result of the
winding down of the Commission are transferred to the
Commonwealth.
New section 67AR - Proceeds of asset transfers to be
paid to the Commonwealth
This section ensures that the proceeds from
transfers of assets by the Commission are paid to the Commonwealth. New
subsection 67AR(1) provides that the Minister for Finance, may direct the
Commission to pay to the Commonwealth a sum of money up to the amount of any
consideration it receives in respect of the sale or transfer of a specified
asset or contract.
New subsection 67AR(2) provides that the Commission
must comply with such a direction. New subsection 67AR(3) provides that
new section 67AR does not, by implication, limit the payment of dividends to the
Commonwealth by the Commission under section 57 of the Australian National
Railways Commission Act 1983.
DIVISION 6 - TAX EXEMPTION
This Division provides that transfers of assets, liabilities and contracts as a result of the wind down of the Commission are exempt from stamp duty and other similar State and Territory taxes unless declared otherwise by the Minister for Finance.
New section 67AS - Exemption from stamp duty and other
taxes
New subsection 67AS(1) provides an exemption from stamp duty or
other tax that would otherwise be payable under a law of the Commonwealth, a
State or Territory in respect of any transfers of assets, contracts,
liabilities, rights, obligations or shares arising out of, because of, or for a
purpose connected with, the sale of the Commission.
New subsection
67AS(2) provides that the Minister for Finance may, by written notice, declare
that subsection (1) does not apply in respect of a specified exempt matter. New
subsection 67AS(3) provides that such a declaration has effect according to its
terms.
Subsection 67AS(4) defines an ‘exempt matter’ to mean
all those types of transfers, transactions and agreements etc that may take
place pursuant to new Part VA.
DIVISION 7 - COMMONWEALTH TAKEOVER OF CONTRACTUAL RIGHTS
AND OBLIGATIONS AND OTHER LIABILITIES
This Division provides for the Commonwealth to take over, and meet, any
contractual rights or liabilities of the Commission.
New section 67AT
- Commonwealth takeover of certain contractual rights and obligations and other
liabilities of the Commission
This section provides for the Minister
for Finance to take over direct responsibility for contractual rights
obligations and liabilities of the Commission, other than borrowing transactions
which are provided for by new section 67AU. It complements new section 67AF to
enable the Commonwealth to take over by agreement, those rights and obligations
and liabilities unable to be effected by declaration. This may cover, for
example, lease contracts between the Commission and a foreign Corporation.
New section 67AU - Commonwealth takeover of certain liabilities of
the Commission
This section provides for the Treasurer to take over
direct responsibility for Commission borrowing by agreement. It
complements new section 67AG to enable the Commonwealth to take over debts by
agreement, including those unable to be effected by declaration, for example
financing obligations to overseas parties governed by foreign law. The section
also defines ‘Borrowing Transaction’ to be a loan or any other
transaction that gives rise to a borrowing and to include raising money by
dealing in securities or by obtaining credit.
New section 67AV -
Authorisation of payments
New section 67AV enables the Treasurer,
should he or she enter an agreement to takeover an obligation of the Commission
under section 67AU, to authorise the payment of money to meet the
Commonwealth’s obligations under the agreement.
New section 67AW
- Appropriation
New section 67AW provides that a payment under new
section 67AV is to be made out of the consolidated revenue fund which is
appropriated accordingly.
New section 67AX - Application of the
Loan Securities Act 1919
New section 67AX is intended to allow
any overseas borrowings that are taken over by the Commonwealth under new
section 67AU to be managed in the same manner as other overseas Commonwealth
borrowings covered by the Loan Securities Act 1919.
DIVISION 8 - COMMISSION AND OTHERS TO ASSIST THE
IMPLEMENTATION OF THIS PART
This division provides for the Commission and Commissioners to assist in
the wind down process and for the use of information provided in giving
assistance.
New section 67AY - Implementation of this
Part
This new section defines for the purposes of this Division a
reference to the “implementation of this Part” as including the
formulation of policies and approaches to be adopted by the Minister for Finance
in connection with the wind down of the Commission.
New section 67AZ -
Assistance given by Commission and Commissioners in connection with the
implementation of this Part.
New section 67AZ ensures cooperation by
the Commission and Commissioners in the implementation of new Part VA. Under
new subsections 67AZ(1) and 67AZ(2) the Commission or Commissioners may assist
the Commonwealth in connection with the implementation of the new Part
VA.
New subsections 67AZ(3) and 67AZ(4) provide that the Commission or
Commissioners must, when requested in writing by the Minister for Finance,
assist the Commonwealth in connection with the implementation of the new Part
VA. The assistance requested must be provided within the period, and in the
form and manner, specified by the request.
New subsection 67AZ(5) ensures
that the giving of such assistance or the making of such a request under new
section 67AZ does not result in a contravention, liability or remedy under a
rule of common law or equity, other than a rule of administrative
law.
New section 67AZA - Giving of assistance - ancillary
provisions
New subsection 67AZA(1) specifies that the giving of
assistance under 67AZ by the Commission or Commissioners may take the form of
the giving of information, financial assistance, a financial benefit to a
related party, such as a Corporation established as a sales vehicle, or the
entering into of an agreement with the Commonwealth or the Commission. It may
also include the provision of information and other assistance by a Commissioner
or by employees of the Commission, in connection with conduct of a due diligence
procedure, market briefing or similar process.
New subsection 67AZA(2)
provides that subsection (1) does not limit the forms in which assistance can be
given.
New subsection 67AZA(3) confirms that new section 67AZ does not
limit the powers of the Commonwealth, Commission or Commissioners to enter into
agreements and subsection 67AZA(4) provides that section 67AZ extends to
assistance given outside Australia.
67AZB - Use of information by the
Commonwealth or the Commission
New section 67AZB is intended to
ensure that the Commonwealth, the Commission or an ‘associated
person’ are able, without risk of any breach of a rule of common law or
equity to use or disclose information obtained under new section 67AZ. This
protection does not extend to a rule of administrative law. ‘Associated
person’ is defined in new subsection 67AZB(5) to include a Minister,
Commonwealth officer or other person performing services on behalf of the
Commonwealth in connection with the implementation of new Part VA. That
definition also includes a Commissioner, officer or employee of the Commission
or a person performing services on behalf of the Commission in connection with
the implementation of new Part VA.
New section 67AZC - Agreements
relating to the protection of information
New subsection 67AZC(1)
enables the Minister for Finance, on behalf of the Commonwealth, to enter into
an agreement with a person relating to the protection of commercially sensitive
information provided under section 67AZ. Subsection 67AZC(2) ensures that such
an agreement is legally enforcement as if it were a contract. New subsection
67AZC(3) confirms that the section does not limit the Commonwealth’s power
to enter into agreements.
New subsection 67AZC(4), (5) and (6) make the
same provisions in respect of the Commission.
DIVISION 9 - INJUNCTIONS
This Division provides enforcement provisions for this
part.
New section 67AZD - Injunctions
New subsection
67AZD(1) empowers the Federal Court (the Court), on application of the Minister
for Finance to grant injunctions preventing conduct or proposed conduct in
contravention of Part VA, or to require modified conduct. Subsection 67AZD(2)
empowers the Court, upon application from the Minister for Finance, to grant an
injunction requiring a person to take action to comply with the new Part
VA.
New section 67AZE - Interim injunctions
New subsection
67AZE(1) empowers the Federal Court to grant an interim injunction restraining a
person from engaging in specified conduct, pending consideration of an
application for an injunction under section 67AZD. New subsection 67AZE(2)
precludes the Court from making it a condition of granting an interim injunction
that the Minister for Finance gives an undertaking as to damages. Such an
undertaking would have required the Minister for Finance, in the event the
injunction was not granted at the end of the interim injunction period, to pay
the respondent to the application damages caused by the operation of the interim
injunction.
New section 67AZF - Discharge etc of
injunctions
New section 67AZF empowers the Court to discharge or vary
an injunction granted under new Division 9.
New section 67AZG -
Certain limits on granting injunctions not to apply
A court may be
reluctant to grant an injunction where it is unlikely that the person against
whom the injunction is sought (‘the respondent’) will continue to
act in a way the injunction is seeking to remedy and a court may be reluctant to
grant an injunction where there is no imminent danger of substantial damage to
the applicant or a third party if the injunction is not issued.
New
paragraphs 67AZG(1)(a) and 28(2)(a) empower the Court to grant an injunction if
satisfied that the respondent has engaged in conduct of a particular kind, or
has refused to comply with specific provisions of new Part VA, regardless of
whether it appears to the Court that the person intends to continue to engage in
conduct of that kind or to continue to refuse to comply.
New paragraphs
67AZG(1)(b) and 28(2)(b) empower the Court to grant an injunction if satisfied
that if an injunction is not granted it is likely that the respondent will
engage in conduct of a particular kind, regardless of whether the person has
previously engaged in conduct of that kind or previously failed to comply, or
whether there is imminent danger of substantial damage to any
person.
New section 67AZH - Other powers of the court
unaffected
New section 67AZH confirms that the powers of the Court to
issue injunctions under new Part VA are in addition to any of the Court’s
other powers
DIVISION 10 - MISCELLANEOUS
New section 67AZJ - Transfers of Commission land may be
registered
The purpose of new section 67AZJ is to enable transfers of
rights, titles and interests in land that are transferred by written declaration
of the Minister for Finance, or a person authorised by the Minister for Finance,
pursuant to new section 67AE or 67AM to be registered and otherwise dealt with
by the States and Territories in the way that transfers of those matters would
ordinarily be dealt with.
New section 67AZK - This part does not
modify registers kept by land registration officials.
New section
67AZK provides that new Part VA, insofar as it provides for the interpretation
of references in other instruments, does not modify any register kept by land
registration official under a law of a State or Territory.
New section
67AZL - Lands Acquisition Act 1989 does not apply to this part
New
section 67AZL provides that the Lands Acquisition Act 1989 does not apply
to anything done under new Part VA. Any acquisition of land by the Commonwealth
will be from the Commission which is an authority of the Commonwealth and thus
the processes and compensation provided for under that Act are not
appropriate.
New section 67AZM - Certificates in relation to assets
other than land
The purpose of new section 67AZM is to enable
transfers of rights, titles and interests in assets other than land that are
transferred by written declaration of the Minister for Finance, or a person
authorised by the Minister for Finance, pursuant to new section 67AE, or 67AM,
to be registered and otherwise dealt with in the way that transfers of those
matters would ordinarily be dealt with. New subsection 67AZM(4) defines
‘assets official’ for the purposes of section 67AZM.
New
section 67AZN - Minister may sell shares in sale company
To avoid
doubt, new section 67AZN provides that if the Commonwealth owns shares in a
company established for purposes relating to new Part VA, the Minister for
Finance may, on behalf of the Commonwealth, enter into contracts to sell the
shares.
New section 67AZP - Legislative Instruments Act does not apply
to this Part
To avoid doubt, new section 67AZP provides that the
Legislative Instruments Act 1997 will not apply in relation to an
instrument made under new Part VA. The provision promotes commercial certainty
for purchasers of Commonwealth rail assets.
New section 67AZQ -
Operation of Australian Land Transport Development Act 1988
New
section 67AZQ provides that, for the purpose of paragraph 32(1)(n) of the
Australian Land Transport Development Act 1988, where the Commission
disposes of an asset under new Part VA, the Commission is taken to have paid to
the Commonwealth an amount equal to the greater of the proceeds of the sale or
disposal and the market value of the asset, thus meeting its obligations under
that Act.
New section 67AZR - Minister may enter into certain
agreement with States
New section 67AZR enables the Minister to, by
written notice, enter into agreements on behalf of the Commonwealth with South
Australia or Tasmania that terminate or vary agreements contained in the Port
Augusta to Whyalla Railway Agreement Act 1970, Tarcoola to Alice Springs Railway
Act 1974, Railways Agreement (South Australia) Act 1975, Railway Agreement
(Adelaide to Crystal Brook Railway) Act 1980 and Railways (Tasmania) Act
1975, and authorises the performance and observance by the Commonwealth and
the Commission of the new agreements. New subsections 67AZR1(b) to (d) and 2(b)
to (d) restrict the matters able to be included in the agreements
to:
. the transfer to South Australia or Tasmania of the whole or any
part of land owned by the Commission or the Commonwealth that is located in
South Australia or Tasmania that is used for purposes related to
railways;
. matters that are incidental to those land transfers;
or
. matters incidental to the sale of Commission assets in the relevant
State.
New subsection 67AZR(3) provides that a notice by the Minister
under new section 67AZR is a disallowable instrument for purposes of section 46A
of the Acts Interpretation Act 1901, enabling Parliament to
consider proposed agreements prior to their taking effect.
New section
67AZS - Compensation - constitutional safety net
The new section
67AZS provides that if the operation of new Part VA were to result in the
acquisition of property otherwise than on just terms, the Commonwealth would be
liable to pay reasonable compensation. This ensures that acquisitions are
constitutional.
New subsection 67AZS(2) provides that where an amount of
compensation cannot be agreed upon, proceedings may be brought against the
Commonwealth for such reasonable amount of compensation as the Federal Court of
Australia determines. New subsection 67AZS(3) provides that any remedy given in
a proceeding begun otherwise than under this section must be taken into account
in assessing compensation payable in a proceeding begun under a section and
arising out of the same event or transaction.
New subsection 67AZS(4)
defines ‘acquisition of property’ and ‘just terms’ as
having the same meanings as in paragraph 51(xxxi) of the
Constitution.
New section 67AZT - Transfer of pending
proceedings
New section 67AZT ensures the preservation of legal
proceedings in relation to an asset, liability or contract by substituting the
successor in law for the original person as a party to the proceedings. The
Minister for Finance is also given the power to determine, in writing, that this
substitution should not occur and that the original person remains the party to
the proceedings.
New section 67AZU - Operation of this Part does not
place a person in breach of contract etc.
New section 67AZU makes it
clear that the operation of new Part VA cannot:
. place a person in
breach of contract or confidence;
. make a person guilty of a civil
wrong;
. place a person in breach of a contractual provision prohibiting,
restricting or regulating the disclosure of any information or the assignment or
transfer of any asset, liability, right or obligation, or release any surety
from any of the surety’s obligations in relation to a liability or
obligation that is transferred under a declaration that is made under new Part
VA;
. place any person in breach of or default under any law or
agreement, arrangement or understanding; or
. fulfil any condition which
allows a person to terminate or modify any agreement or obligation or triggering
any early repayment clauses.
New section 67AZV - Delegation
New subsection 67AZV(1) enables the Minister for Finance to delegate
to the Secretary of the Department of Finance, the Chief Executive of the Office
of Asset Sales or the person holding or performing the duties of a Senior
Executive Service office (whether or not an officer of the Department of
Finance), all or any of the Minister for Finance’s functions and powers
conferred by new Part VA. Subsection 67AZV(2) defines ‘Senior Executive
Service office’ for the purposes of the section.
New
Section 67AZW - Commonwealth records
New subsection 67AZW(1) provides
that the Act does not authorise Commonwealth record (within the meaning of the
Archives Act 1983) to be transferred or otherwise dealt with except in
the accordance of the Archives Act 1983. Subsection 67AZW(2) provides
that a Commonwealth record must not be transferred to a person under new Part VA
unless the Australian Archives has given permission under paragraph 24(2)(b) of
the Archives Act 1983 or the record is covered by a determination under
section 29 of that Act.
New section 67AZX - This Part does not
authorise the imposition of taxation
New section 67AZX provides that
new Part VA does not authorise the imposition of taxation within the meaning of
section 55 of the Constitution. This section is included to ensure that
determinations under the Act are not interpreted as the imposition of
tax.
SCHEDULE 2 - OTHER AMENDMENTS OF THE AUSTRALIAN NATIONAL
RAILWAYS COMMISSION ACT 1983
This Schedule makes a series of amendments to the existing provisions of the
Australian National Railways Commission Act 1983 to enable the sale of
the Commission operations to occur, to facilitate the Commission assisting with
the sale and to provide flexibility to change the operation of the Commission as
its responsibilities reduce.
Item 1 - At the end of Part
1
3A - Crown to be bound
A new section 3A is inserted
to provide that the Crown in right of the Commonwealth, the States and the
Territories will be bound by the Act. New subsection 3A(2) provides that the
Crown is not liable to be prosecuted for an offence. However, by new subsection
3A(3), this protection does not apply to an authority of the
Crown.
3B- Extra-territorial operation
A new section 3B is
inserted to ensure that the Act extends to cover activity outside of
Australia.
Item 2 - At the end of section 5
A new
subsection 5(g) is inserted to expand the functions of the Commission to include
those functions required to give effect to the new Part VA of the Act. New Part
VA deals with transfer and sale of assets of the Commission for the purpose of
winding down the Commission.
Item 3 - At the end of section
6
New subsection 6(3) is inserted so as to provide that the powers of
the Commission are subject to section 6AA (which deals with directions to the
Commission).
Item 4 - After section 6
6AA Ministerial
directions
New subsection 6AA is inserted into the Act giving the
Minister wider power to give directions to the Commission with respect to the
performance of the Commission’s functions or the exercise of its powers.
New subsection 6AA(2) provides that a direction may be given for the purposes of
winding down the various activities of the Commission. A direction under new
section 6AA is to be published in the Gazette. The section replaces current
sections 19 and 20 of the Australian National Railways Commission Act 1983 (see
items 8 and 9 below).
Item 5 - Subsection 18(1)
Subsection
18(1) provides that the Commission’s responsibilities are subject to
directions of the Minister. This item updates this provision in consequence of
the change in the directions powers of the Minister and includes actions in
relation to the action of new Part VA.
Item 6 and 7 - Sections 19 and
20
This item repeals these sections relating to directions to the
Commission and the reimbursement of the cost determined by the Minister of
complying with directions, which are replaced by new section 6AA.
Item
8 and 9 - Subsection 21(1)
These items amend the subsection to
reflect the change to the Directions sections.
Item 10 - Subsections
24(1) and 24(2)
Subsections 24(1) and (2) are repealed and replaced
with provisions which provide that the Commission consists of the Chairman of
the Commission, the Deputy Chairman of the Commission, the Managing Director of
the Commission and such other Commissioners as the Minister determines. New
subsections 24(2) and (2A) provide for the appointment of the Commissioners by
the Minister; for them to hold office during the Minister’s pleasure.
These changes enable the structure of the Commission to be altered as its
responsibilities wind down.
Item 11 - Section 25
This item
repeals the section relating to the period of appointment of the
Commissioners.
Item 12 - Section 32
Section 32 relating to
termination of appointment by the Governor-General is repealed.
Item
13 - Subsection 34(6)
This item omits “4 Commissioners
constitute a quorum”, and substitutes “a quorum is constituted by
half of the Commissioners” to reflect the amended provisions allowing for
less than 7 Commissioners.
Item 14 - Section 36C
This item
repeals this section and substitutes another which provides that the Managing
Director may hold office on either a full-time or part-time
basis.
Item 15 - Section 54
This item repeals section 54
relating to the capital of the Commission.
Item 16 - Subsection
55(3)
This subsection requires the Commission to pursue financial
targets in all activity except in relation to following directions in
recognition of the changes to the directions provisions and the insertion of the
new Part VA.
Item 17 - Sections 57, 57A and 58
This item
repeals these sections relating to payment of dividends, interim dividends and
profits of the Commission to the Commonwealth. A new section 57 is substituted
to provide that the Minister for Finance may give the Commission a written
direction to pay a specified amount to the Commonwealth before a specified time.
Subsection 57(2) provides that the Commission must comply with a direction under
subsection (1).
Item 18 - Subsection 62(1)
This item omits
“The Commission” and substitutes it with “Subject to
subsection (3), the Commission”. This makes the Commission’s
borrowings subject to written directions by the Minister for Finance under new
subsection 62(3) and (4).
Item 19 - At the end of section
62
This item adds subsection 62(3) and 62(4). New subsection 62(3)
provides that the Minister for Finance may give the Commission a written
direction requiring the Commission not to enter into a loan. New subsection
62(4) provides that the Commission must comply with the direction under new
subsection (3).
Items 20 - Subsection 63(1)
This item
expands the powers Treasurer to guarantee borrowings by the Commission to
include other liabilities. This will assist the Commonwealth to avoid defaults
on liabilities as a result of the loss of assets and earning capacity of the
Commission.
Item 21 - Subsection 63(2)
This item expands
the subsection consistent with the amendment to subsection 63(1).
Item
22 - Section 74
This item inserts after “contrary,”
“other than a law that specifically relates to the safety in the operation
of railways,” to give laws relating to safety precedence over exemptions
from State and Territory fencing laws.
Item 23 - After section
74
A new section 74A is inserted to provide that the Commission, in
operating railways, is subject to any law of a State or Territory that
specifically relates to safety in the operation of railways. New subsection
74A(2) provides that, subject to new subsection (3), a person who operates a
railway that was previously operated by the Commission is subject to all laws of
a State or Territory that relate to the operation of railways in operating the
railway.
New subsections 74A(3) and (4) provide that the Minister may
by written notice published in the Gazette provide temporary relief from
specified State or Territory laws relating to the operation of railways to a
specified person who operates a railway that was previously operated by the
Commission. This relief can be provided for up to 6 months from the time
the person takes over the railway.
New subsection 74A(5) provides that
such a declaration has effect according to its terms.
SCHEDULE 3 - REPEAL OF THE AUSTRALIAN NATIONAL RAILWAYS COMMISSION ACT 1983 AND OTHER ACTS
This schedule provides for the repeal of the Australian National
Railways Commission Act 1983 and saving of essential provisions to enable
abolition of the Commission after sale or transfer of its assets and settlement
of its liabilities. It also provides for the abolition of a number of agreement
Acts following the renegotiation of the agreements with South Australia and
Tasmania.
Australian National Railways Commission Act
1983
Item 1 - The whole of the Act
This item
repeals the Australian National Railways Commission Act
1983.
Item 2 - Definitions
This item defines terms used
in the Schedule.
‘Repeal day’ is the day on which Schedule 3
commences.
‘Residual assets’ are any legal or equitable
estates or interests in real or personal property including contingent or
prospective ones and any rights privileges and immunities including contingent
or prospective ones, of the Commission immediately before repeal
day.
‘Residual instruments’ are instruments that are in force
immediately before the repeal day to which the Commission is a party or that
were given to, by or in favour of the Commission or in which reference is made
to the Commission or under which any money is or may become payable, or any
other property is to be, or may become liable to be, transferred, conveyed or
assigned, to or by the Commission.
‘Residual liability’ are
liabilities and duties of the Commission including contingent and prospective
ones immediately before the repeal day.
Item 3 - Residual assets and
liabilities to become Commonwealth assets and liabilities
This item
provides that all residual assets and liabilities of the Commission cease to be
assets and liabilities of the Commission and become assets and liabilities of
the Commonwealth on the repeal day. A residual instrument will continue to have
effect on and after the repeal day as if a reference in the instrument to the
Commission were a reference to the Commonwealth.
Item 4 - Provisions
continue to apply
This item provides that in spite of its repeal, the
Australian National Railways Commission Act 1983 continues to apply in
relation to residual assets and residual liabilities as if those assets and
liabilities transferred to the Commonwealth under section 67AE or 67AG of the
Act. This will enable the Commonwealth to dispose of the assets, contracts and
liabilities in the ways provided for in the new Part VA even after the Act is
repealed.
Item 5 - Pending proceedings
This item provides
that if immediately before the repeal day proceedings to which the Commission
was a party are pending in a court then, on or after the repeal day, the
Commonwealth is substituted for the Commission in the proceedings and has the
same rights and obligations as the Commission would have had.
Item 6 -
Seat of Government Railway Act 1928
This item repeals the
Seat of Government Railway Act 1928 in recognition of the abolition of
the Commission.
Items 7 to 11
These items repeal
the Port Augusta to Whyalla Railway Agreement Act 1970, Tarcoola to Alice
Springs Railway Act 1974, Railways Agreement (South Australia) Act 1975, Railway
Agreement (Adelaide to Crystal Brook Railway) Act 1980 and Railways
(Tasmania) Act 1975. The Commonwealth will enter into replacement
agreements with South Australia and Tasmania under new Part VA section
67AZR.
SCHEDULE 4 - AMENDMENT OF OTHER ACTS
This Schedule amends a number of Acts consequent upon the abolition of
the Commission.
Item 1 - Administrative Decision (Judicial Review)
Act 1977
Item 1 amends Schedule 2 of the Administrative
Decision (Judicial Review) Act 1977 to remove references to the Commission
from the Act.
Item 2 - Commonwealth Borrowing Levy Act
1987
Item 2 omits Australian National Railways Commission from
the Schedule to the Commonwealth Borrowing Levy Act 1987.
Item
3 - Freedom of Information Act 1982
Item 3 removes the
Australian National Railways Commission from the list of agencies in Part 1
Schedule 2 of the Freedom of Information Act 1982.
Item 4 -
Legislative Instruments Act 1997
Item 4 removes the
Australian National Railways Commission Act 1983 from Schedule 2 of the
Legislative Instruments Act 1997.
Item 5
Item 5
removes the Australian National Railways Commission from Schedule 3 of the
Legislative Instruments Act 1997.
Item 6 - Long Service
Leave (Commonwealth Employees) Act 1976
Item 6 repeals subsection
10(5) of the Long Service Leave (Commonwealth Employees) Act 1976 which
relates to the Commission staff.
Item 7 - National Crime Authority
Act 1984
Item 7 omits Australian National Railways Commission
from Schedule 2 of the National Crime Authority Act 1984.
Item
8 - Northern Territory Acceptance Act 1910
This item repeals
paragraphs 14 (g) and 14(h) of the Northern Territory Acceptance Act
1910, which relate to railways. The Commonwealth will enter into
replacement agreements with South Australia under new Part VA section
67AZR.
Item 9 - Transitional - agreement
This item is in
consequence of the repeal of paragraphs 14 (g) and 14(h) of the Northern
Territory Acceptance Act 1910, which relate to railways. It deems
paragraphs (1) (g) and (h) of the agreement attached as a schedule to the
Acceptance Act not to exist. The Commonwealth will enter into replacement
agreements with South Australia under new Part VA section 67AZR.
Item
10 to 15 - National Rail Corporation Act 1992
These items
remove references to the Commission from the National Rail
Corporation Act 1992.
Item 16 - Occupation Health and Safety
(Commonwealth Employment) Act 1991
Item 14 provides that the
Australian National Railways Commission is omitted from the Schedule to the
Occupation Health and Safety (Commonwealth Employment) Act
1991.
Item 17 - Safety, Rehabilitation and Compensation Act
1988
This item repeals paragraph (j) of the definition of
prescribed “Commonwealth authority” in subsection 128A(4) of the
Safety, Rehabilitation and Compensation Act 1988 to remove reference to
the Commission.
Item 18 to 20- Telecommunications Act
1997
These items remove references to the Commission from the
Act.
SCHEDULE 5 - MISCELLANEOUS PROVISIONS
Schedule 5 Part 1 enables fixtures to be severed from railways land and
to be sold to a rail operator. This will provide them with increased incentive
to maintain and improve rail infrastructure. Part 2 provides for access to
railways for defence-related purposes and for emergency or disaster relief, and
compensation for that access.
Part 1 - Assets not to be
fixtures
Item 1 - Certain assets to not be
fixtures
This item enables the Minister for Finance, by written
notice, to declare that specified assets that are affixed to land are taken to
be separate assets and not fixtures. This will enable these assets to be
disposed of by the Commission or the Commonwealth under new Part VA of the
Australian National Railways Commission Act 1983 and will provide an
incentive for new rail operators to maintain and improve the infrastructure.
New item 5(1)(2) provides that such a declaration has effect according to
its terms.
Part 2
Item 2 - Access to railways for
defence-related purposes and for emergency and disaster relief
This
item sets out arrangements under which a person who manages of controls a
railway previously managed or controlled by the Commission may be required to
give access or priority of access for purposes related to: the defence of
Australia; the operation of the Australian Defence Force (including in
connection with international humanitarian aid or United Nations peace-keeping
operations, or armed forces of another country in connection with the defence of
Australia; or the management of emergencies or disasters where that management
involves the Australian Defence Force.
Subitems (1), (2) and (3)
empower the Minister by written notice to require an operator of a railway
previously managed or controlled by the Commission to give access, or priority
of access, to specified kinds of “railway services” for specified
kinds of “defence-related purposes” (both terms are defined by
subitem (8)), in such manner and on such terms and conditions as the
Minister determines.
Subitem (4) requires a rail operator to comply
with a notice given under subitem (1).
Subitem (5) provides
that contravention of subitem (5) is not an offence but is grounds for
obtaining an injunction.
Subitem (6) clarifies that a notice under
Subitem (1) may be given by facsimile. This may on occasions be necessary
because of the urgency of the need for access or priority of
access.
Subitem (7) draws specifically on the Commonwealth’s
power to make laws with respect to corporations as a basis for this
item.
Subitem (8) defines “railway service” and
“defence-related purposes” for the purposes of this
item.
Item 3 - Compensation for access to railways for
defence-related purposes and for emergency or disaster relief
Under
subitem 3(4), the Commonwealth must compensate specified rail operators if they
have suffered loss or damage as a result of access, or priority of access,
having been given in accordance with a notice under subitem 2(1). Subitems
3(1) to (3) provide for a Commonwealth agency to be listed in a notice under
subitem 2(1) and subitem 3(7) provides that that agency is responsible for any
compensation payable to the rail operator. Subitems (4) and (5) provide for the
amount of the damages to be agreed between the operator and the head of the
Commonwealth agency or, if there is no agreement on the amount, the matter may
be determined by a court, having regard to any action taken in mitigation of the
loss or damage.
Subitems 2(8) and (9) provides that the Commonwealth is
liable to pay any additional compensation that would ensure that the operation
of item 2(1) did not result in the unconstitutional acquisition of property
otherwise than on just terms. If there is no agreement on the amount, the
matter may be taken to the Federal Court.
These provisions have effect
notwithstanding section 70 of the Defence Act 1903. Item 2(11)
provides definitions of terms used in the item:
“acquisition of
property” (same meaning as paragraph 51(xxxi) of the
Constitution);
“Commonwealth agency” (a department or an
agency or instrumentality of the Commonwealth);
“designated
agency” (the Commonwealth agency specified in the notice as a designated
agency in relation to the notice);
“just terms” (same meaning
as paragraph 51(xxxi) of the Constitution).