AUSTRALIAN ASTRONOMICAL OBSERVATORY (TRANSITIONAL PROVISIONS) BILL 2010

2008-2009

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Australian Astronomical Observatory

(Transitional Provisions) Bill 2009

No. , 2009

(Innovation, Industry, Science and Research)

A Bill for an Act to deal with transitional matters in

connection with the enactment of the Australian

Astronomical Observatory Act 2009, and for other

purposes

i Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Repeal of the Anglo-Australian Telescope

Agreement Act 1970

Anglo-Australian Telescope Agreement Act 1970

Schedule 2--Transitional provisions

Part 1--Introduction

Part 2--Transfer of assets and liabilities

Part 3--Transfer of other matters

Part 4--Finance and annual report

Part 5--Employees of the Board

Part 6--Miscellaneous

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 1

A Bill for an Act to deal with transitional matters in

connection with the enactment of the Australian

Astronomical Observatory Act 2009, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Australian Astronomical Observatory

(Transitional Provisions) Act 2009.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1

and 2

At the same time as the Australian

Astronomical Observatory Act 2009

commences.

1 July 2010

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 2 Transitional provisions

Part 1 Introduction

4 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

Schedule 2--Transitional provisions

Part 1--Introduction

1 Definitions

In this Schedule:

asset means:

(a) any legal or equitable estate or interest in real or personal

property, whether actual, contingent or prospective; and

(b) any right, power, privilege or immunity, whether actual,

contingent or prospective;

but does not include a right, power, privilege or immunity conferred by

an Act or by regulations or other subordinate legislation made under an

Act.

assets official, in relation to an asset other than land, means the person

or authority who, under:

(a) a law of the Commonwealth, a State or a Territory; or

(b) a trust instrument; or

(c)

otherwise;

has responsibility for keeping a register in relation to assets of the kind

concerned.

Board means the Anglo-Australian Telescope Board that was

established by the Anglo-Australian Telescope Agreement Act 1970.

land means any legal or equitable estate or interest in real property,

whether actual, contingent or prospective.

land registration official, in relation to land, means the Registrar of

Titles or other proper officer of the State or Territory in which the land

is situated.

liability means any liability, duty or obligation, whether actual,

contingent or prospective, but does not include a liability, duty or

obligation imposed by an Act or by regulations or other subordinate

legislation made under an Act.

responsible financial officer means a person appointed under item 15.

Secretary means the Secretary of the Department.

transition time means the commencement of this Schedule.

Transitional provisions Schedule 2

Transfer of assets and liabilities Part 2

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

Part 2--Transfer of assets and liabilities

2 Vesting of assets of Board

(1)

This item applies to the assets of the Board immediately before the

transition time.

(2)

At the transition time, the assets cease to be assets of the Board and

become assets of the Commonwealth without any conveyance, transfer

or assignment. The Commonwealth becomes the successor in law in

relation to the assets.

3 Vesting of liabilities of Board

(1)

This item applies to the liabilities of the Board immediately before the

transition time.

(2)

At the transition time, the liabilities cease to be liabilities of the Board

and become liabilities of the Commonwealth without any conveyance,

transfer or assignment. The Commonwealth becomes the successor in

law in relation to the liabilities.

4 Transfers of land may be registered

(1)

This item applies if:

(a) any land vests in the Commonwealth under this Part; and

(b) there is lodged with a land registration official a certificate

that:

(i) is signed by the Minister; and

(ii) identifies the land, whether by reference to a map or

otherwise; and

(iii) states that the land has become vested in the

Commonwealth under this Part.

(2)

The land registration official may:

(a) register the matter in a way that is the same as, or similar to,

the way in which dealings in land of that kind are registered;

and

(b) deal with, and give effect to, the certificate.

(3)

A certificate under paragraph (1)(b) is not a legislative instrument.

5 Certificates relating to vesting of assets other than land

Schedule 2 Transitional provisions

Part 2 Transfer of assets and liabilities

6 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

(1)

This item applies if:

(a) any asset other than land vests in the Commonwealth under

this Part; and

(b) there is lodged with an assets official a certificate that:

(i) is signed by the Minister; and

(ii) identifies the asset; and

(iii) states that the asset has become vested in the

Commonwealth under this Part.

(2)

The assets official may:

(a) deal with, and give effect to, the certificate as if it were a

proper and appropriate instrument for transactions in relation

to assets of that kind; and

(b) make such entries in the register as are necessary having

regard to the effect of this Part.

(3)

A certificate under paragraph (1)(b) is not a legislative instrument.

Transitional provisions Schedule 2

Transfer of other matters Part 3

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

Part 3--Transfer of other matters

6 Transitional--acts of the Board to be attributed to the

Commonwealth

(1)

This item applies to anything done by, or in relation to, the Board

before the transition time.

(2)

After the transition time, the thing has effect as if it had been done by,

or in relation to, the Commonwealth.

7 Substitution of Commonwealth as a party to certain

pending proceedings

(1)

This item applies if any proceedings to which the Board was a party

were pending in any court or tribunal immediately before the transition

time.

(2)

The Commonwealth is substituted for the Board, from the transition

time, as a party to the proceedings.

8 Transitional--transfer of records to the Department

(1)

This item applies to any records or documents that were in possession

of the Board immediately before the transition time.

(2)

The records and documents are to be transferred to the Department after

the transition time.

9 Transitional--transfer of Ombudsman investigations

If:

(a) before the transition time, a complaint was made to the

Ombudsman, or the Ombudsman began an investigation,

under the Ombudsman Act 1976 in relation to an action taken

by the Board; and

(b) immediately before transition time, the Ombudsman had not

finally disposed of the matter in accordance with the

Ombudsman Act 1976;

the Ombudsman Act 1976 applies after the transition time as if that

action had been taken by the Department.

10 References in certain instruments to the Board

Schedule 2 Transitional provisions

Part 3 Transfer of other matters

8 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

(1) If:

(a) an instrument was in force immediately before the transition

time; and

(b) the instrument is an instrument covered by one or more of the

following subparagraphs:

(i) an instrument that was made by the Board;

(ii) an instrument to which the Board was a party;

(iii) an instrument that was given to, or in favour of, the

Board;

(iv) an instrument under which any right or liability accrues

or may accrue to the Board;

(v) any other instrument in which a reference is made to the

Board;

the reference has effect after the transition time as if it were a reference

to the Commonwealth.

(2)

In this item:

instrument:

(a)

includes:

(i) a contract, deed, undertaking or agreement; and

(ii) a notice, authority, order or instruction; and

(iii) an instrument made under an Act or under regulations;

but

(b) does not include an exempt instrument.

exempt instrument means:

(a) an Act; or

(b) an instrument made under this Act; or

(c)

the

Long Service Leave (Commonwealth Employees)

Regulations 1957; or

(d)

the

Freedom of Information (Miscellaneous Provisions)

Regulations 1982; or

(e)

the

Superannuation Benefit (Interim Arrangement) (Qualified

Employees) Regulations; or

(f)

the

Superannuation (CSS) Approved Authority Declaration

1995; or

(g)

the

Superannuation (CSS) Transfer Arrangements

Regulations.

Transitional provisions Schedule 2

Transfer of other matters Part 3

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

11 Transfer of appropriated money

(1)

For the purposes of the operation of an Appropriation Act after the

transition time, references to the Board are to be read as references to

the Department.

(2)

In this item:

Appropriation Act means an Act appropriating money for expenditure

out of the Consolidated Revenue Fund.

Schedule 2 Transitional provisions

Part 4 Finance and annual report

10 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

Part 4--Finance and annual report

12 Audit

(1)

Despite the repeal of section 14 of the Anglo-Australian Telescope

Agreement Act 1970, that section continues to apply, in relation to an

inspection and audit carried out in respect of a financial year that began

on or before 1 July 2009, as if that section had not been repealed.

(2)

Subitem (1) has effect subject to the following subitems.

(3)

A reference in that section to records of the Board includes a reference

to records transferred to the Department under item 8 of this Schedule.

(4)

A reference in that section to an employee of the Board includes a

reference to an APS employee in the Department.

13 Final financial statements

(1)

Despite the repeal of section 19 of the Anglo-Australian Telescope

Agreement Act 1970, that section continues to apply, in relation to

financial statements for the financial year that began on 1 July 2009, as

if that section had not been repealed.

(2)

However, the obligation to prepare and provide those financial

statements is imposed on the responsible financial officer instead of the

Board.

14 Final annual report

(1)

The responsible financial officer must, as soon as practicable after the

end of the financial year that began on 1 July 2009, prepare and give to

the Minister, for presentation to the Parliament, a report on the

operations of the Board during that year.

(2)

The report under subitem (1) is taken to be a periodic report for the

purposes of section 34C of the Acts Interpretation Act 1901.

15 Responsible financial officer

(1)

The Secretary may, by writing, appoint a person as the responsible

financial officer for the purposes of this Schedule.

(2)

The Secretary must not appoint a person under subsection (1) unless the

person:

Schedule 2 Transitional provisions

Part 5 Employees of the Board

12 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

Part 5--Employees of the Board

16 Terms and conditions of employment

Transferring employees

(1)

For the purposes of this item, a person is a transferring employee if:

(a) the person was employed by the Board immediately before

the transition time; and

(b) the person is covered by a determination that:

(i) is made under section 72 of the Public Service Act 1999;

and

(ii) causes the person, at the transition time, to become an

APS employee (other than an SES employee) in the

Department.

(2) If:

(a) a person is a transferring employee; and

(b) immediately before the transition time, the person's

employment by the Board was covered by a designated

agreement;

then:

transferring employee in relation to AAO work; and

(d) while the designated agreement covers the Commonwealth

and the transferring employee in relation to AAO work, no

other enterprise agreement, modern award or award-based

transitional instrument covers the transferring employee in

relation to AAO work; and

(e) the designated agreement has effect after the transition time,

in relation to the transferring employee's AAO work, as if it

had been made with the Secretary on behalf of the

Commonwealth; and

(f) if the transferring employee becomes an SES employee after

the transition time--paragraphs (c), (d) and (e) cease to apply

in relation to the transferring employee.

New employees

(3)

For the purposes of this item, a person is a new employee if:

Transitional provisions Schedule 2

Employees of the Board Part 5

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

(a) the person is an APS employee (other than an SES employee)

in the Department; and

(b) the person performs AAO work; and

(4) If:

(a) a designated agreement covers the Commonwealth because

of subitem (2); and

(b) after the transition time, a person becomes a new employee;

then:

new employee in relation to AAO work; and

(d) while the designated agreement covers the Commonwealth

and the new employee in relation to AAO work, no other

enterprise agreement, modern award or award-based

transitional instrument covers the new employee in relation

to AAO work.

Definitions

(5)

In this item:

AAO work, in relation to an employee, means work performed after the

transition time by the employee within the Australian Astronomical

Observatory.

award-based transitional instrument has the same meaning as in

Schedule 2 to the Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009.

designated agreement means:

(a)

the

AATB Enterprise Agreement 2007-2010; or

(b) an enterprise agreement.

enterprise agreement has the same meaning as in the Fair Work Act

2009.

modern award has the same meaning as in the Fair Work Act 2009.

17 Accrued entitlements

(1)

This item applies to a person if:

(a) the person was employed by the Board immediately before

the transition time; and

Schedule 2 Transitional provisions

Part 5 Employees of the Board

14 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

(b) the person is covered by a determination that:

(i) is made under section 72 of the Public Service Act 1999;

and

(ii) causes the person, at the transition time, to become an

APS employee in the Department.

(2)

The person is taken to have accrued an entitlement to benefits, in

connection with the person's employment as an APS employee, that is

equivalent to the entitlement that the person had as an employee of the

Board immediately before the transition time.

(3)

The service of the person as an employee of the Board is taken, for all

purposes, to have been continuous with his or her service as an APS

employee.

18 Long service leave

(1)

This item applies to a person if:

(a) the person was employed by the Board immediately before

the transition time; and

(b) the person is covered by a determination that:

(i) is made under section 72 of the Public Service Act 1999;

and

(ii) causes the person, at the transition time, to become an

APS employee in the Department.

(2) The

Long Service Leave (Commonwealth Employees) Act 1976 has

effect, in relation to the person, as if a period during which the person

was employed by the Board were a period during which the person was

employed in Government Service.

19 Safety, Rehabilitation and Compensation Act 1988--

rehabilitation provisions

(1)

This item applies if, before the transition time, an employee of the

Board suffered an injury resulting in an incapacity for work or an

impairment.

(2)

Sections 36, 37, 38, 39, 41 and 41A of the Safety, Rehabilitation and

Compensation Act 1988 apply after the transition time, in relation to the

injury, as if the employee were employed by the Department.

Transitional provisions Schedule 2

Employees of the Board Part 5

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

Note:

The main effect of subitem (2) is that sections 36, 37, 38, 39, 41 and 41A of the Safety,

Rehabilitation and Compensation Act 1988 apply in relation to the employee's injury as

if the Secretary of the Department were the rehabilitation authority.

(3)

After the transition time, the Department is, for the purposes of

section 40 of the Safety, Rehabilitation and Compensation Act 1988,

taken to be the relevant employer of the employee.

Schedule 2 Transitional provisions

Part 6 Miscellaneous

16 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. ,

2009

Part 6--Miscellaneous

20 Exemption from stamp duty and other State or Territory

taxes

(1)

No stamp duty or other tax is payable under a law of a State or a

Territory in respect of an exempt matter, or anything connected with an

exempt matter.

(2)

For the purposes of this item, an exempt matter is:

(a) the vesting of an asset or liability under this Schedule; or

(b) the operation of this Schedule in any other respect.

(3)

The Minister may certify in writing:

(a) that a specified matter is an exempt matter; or

(b) that a specified thing was connected with a specified exempt

matter.

(4)

In all courts, and for all purposes (other than for the purposes of

criminal proceedings), a certificate under subitem (3) is prima facie

evidence of the matters stated in the certificate.

21 Constitutional safety net

(1)

If the operation of this Schedule would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of compensation to

the person.

(2)

If the Commonwealth and the person do not agree on the amount of the

compensation, the person may institute proceedings in a court of

competent jurisdiction for the recovery from the Commonwealth of

such reasonable amount of compensation as the court determines.

(3)

In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi)

of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

22 Certificates taken to be authentic

Transitional provisions Schedule 2

Miscellaneous Part 6

Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009

A document that appears to be a certificate made or issued under a

particular provision of this Schedule:

(a) is taken to be such a certificate; and

(b) is taken to have been properly given;

unless the contrary is established.

23 Delegation by Minister

(1)

The Minister may, by writing, delegate all or any of his or her powers

and functions under this Schedule to a person.

(2)

The delegate must be:

(a) the Secretary; or

(b) an SES employee, or acting SES employee, in the

Department.

Note:

SES employee is defined in section 17AA of the Acts Interpretation Act 1901.

(3)

In exercising powers or functions under a delegation, the delegate must

comply with any directions of the Minister.

24 Transitional--regulations

The Governor-General may make regulations in relation to transitional

matters arising out of the repeal of the Anglo-Australian Telescope

Agreement Act 1970.

Commonwealth of Australia Bills

AUSTRALIAN ASTRONOMICAL OBSERVATORY (TRANSITIONAL PROVISIONS) BILL 2010