ASBESTOS-RELATED CLAIMS (MANAGEMENT OF COMMONWEALTH LIABILITIES) BILL 2005

2004-2005

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Asbestos-related Claims (Management of

Commonwealth Liabilities) Bill 2005

No. , 2005

(Employment and Workplace Relations)

A Bill for an Act to assign responsibility for the

management of certain liabilities relating to

asbestos-related claims, and for related purposes

i Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. ,

2005

Contents

Part 1--Preliminary

Short title.......................................................................................1

Commencement .............................................................................2

Definitions.....................................................................................2

Declarations--Commonwealth authorities ......................................5

Part 2--Transfer of liabilities

Transfer of liabilities to Comcare....................................................7

Transfer of liabilities from Comcare ...............................................8

Certain consequences of transfer.....................................................9

Part 3--Finance and administration

Appropriation in respect of certain liabilities transferred to

Comcare ......................................................................................11

Money of Comcare ......................................................................11

Access to records .........................................................................11

Disclosure of information.............................................................12

Additional function of Comcare....................................................12

Directions by Minister..................................................................13

Consent required for delegation ....................................................13

Compensation for acquisition of property......................................14

Regulations..................................................................................14

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

A Bill for an Act to assign responsibility for the

management of certain liabilities relating to

asbestos-related claims, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Asbestos-related Claims

(Management of Commonwealth Liabilities) Act 2005.

Part 1 Preliminary

Section 2

2 Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No.

, 2005

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.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Part 1 and

anything in this

Act not elsewhere

covered by this

table

The day on which this Act receives the

Royal Assent.

2. Parts 2 and 3

The later of:

(a) the day after the end of the period of 7

days beginning on the day on which this

Act receives the Royal Assent; and

(b) 1 July 2005.

Note:

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

passed by 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 Definitions

(1) In this Act:

asbestos-related claim means a claim for the payment of

compensation or damages to a person in respect of an

asbestos-related condition suffered by the person or another person

arising from a breach of a common law or statutory duty of care

by:

(a) the Commonwealth; or

Preliminary Part 1

Section 3

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

(b) an entity that was a Commonwealth authority when the

breach of the duty of care occurred.

asbestos-related condition means:

(a) asbestosis; or

(b) an asbestos-induced carcinoma; or

(d) mesothelioma; or

(e) any other condition that is caused by exposure to asbestos.

claim:

(a) means a claim or demand of any kind (whether or not

involving legal proceedings); and

(b) includes proceedings of any kind.

Comcare means the body corporate established by section 68 of

the Safety, Rehabilitation and Compensation Act 1988.

Commonwealth authority means:

(a) a body corporate that is established for a public purpose by a

law of the Commonwealth or of a Territory (other than the

Australian Capital Territory, the Northern Territory or

Norfolk Island) that is not a general law allowing

incorporation as a company or body corporate; or

(b) a body corporate that:

(i) is incorporated under a law of the Commonwealth or of

a State or Territory; and

(ii) is a body corporate in which the Commonwealth, or a

body corporate covered by paragraph (a), has a

controlling interest (within the meaning of the Safety,

Rehabilitation and Compensation Act 1988); or

authority for the purposes of this Act under subsection 4(1);

but does not include:

(d) Comcare; or

(e) the Australian Postal Corporation; or

(f) Telstra Corporation Limited; or

Part 1 Preliminary

Section 3

4 Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No.

, 2005

(g) a body corporate that is declared not to be a Commonwealth

authority for the purposes of this Act under subsection 4(2);

(h) a body corporate that is a subsidiary of a body corporate

covered by paragraph (e), (f) or (g).

contract of insurance includes a contract which, however

expressed and in whatever form, is in substance an indemnity or

guarantee.

court (except in section 15) includes:

(a) a tribunal; and

(b) any judge or person acting judicially or authorised by law or

consent of parties to hear, receive and examine evidence.

Finance Minister means the Minister who administers the

Financial Management and Accountability Act 1997.

liability means a liability of any kind (whether actual, potential or

contingent) but does not include a liability arising under:

(a) a contract of insurance; or

(b) a judgment or order of a court that is not stayed or subject to

appeal when Part 2 of this Act commences; or

entered into before Part 2 of this Act commences.

subject to appeal: a judgment or order is subject to appeal until:

(a) any applicable time limits for lodging an appeal (however

described) against the judgment or order have expired; and

(b) if there is such an appeal against the judgment or order--the

appeal (and any subsequent appeals) have been finally

disposed of.

Meaning of subsidiary

(2) For the purposes of this Act, the question whether a body corporate

is a subsidiary of another body corporate is to be determined in the

same manner as that question is determined under the

Corporations Act 2001.

Preliminary Part 1

Section 4

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

4 Declarations--Commonwealth authorities

Body corporate is a Commonwealth authority

(1) The Minister may, by written instrument, declare that a body

corporate is, from the time that the instrument is made, a

Commonwealth authority for the purposes of this Act if, at that

time:

(a) the body corporate is incorporated under a law of the

Commonwealth or of a State or Territory; and

(b) either:

(i) the Commonwealth; or

(ii) a body corporate that is established for a public purpose

by a law of the Commonwealth or of a Territory (other

than the Australian Capital Territory, the Northern

Territory or Norfolk Island) that is not a general law

allowing incorporation as a company or body corporate;

has a substantial interest (within the meaning of the Safety,

Rehabilitation and Compensation Act 1988) in the body

corporate.

Note:

Subsection 33(3) of the Acts Interpretation Act 1901 provides for the

repeal, variation etc. of instruments.

Body corporate is not a Commonwealth authority

(2) The Minister may, by written instrument, declare that a body

corporate is not, from the time that the instrument is made, a

Commonwealth authority for the purposes of this Act.

Note:

Subsection 33(3) of the Acts Interpretation Act 1901 provides for the

repeal, variation etc. of instruments.

Publication in Gazette

(3) The Minister must publish a copy of an instrument made under

subsection (1) or (2) in the Gazette.

(4) A failure to comply with subsection (3) does not affect the validity

of any declaration made under this section.

Transfer of liabilities Part 2

Section 5

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

Part 2--Transfer of liabilities

5 Transfer of liabilities to Comcare

Claims against Commonwealth or authority on or before

commencement

(1) If an asbestos-related claim was made against the Commonwealth

or a Commonwealth authority on or before the commencement of

this Part then, on the commencement of this Part:

(a) a liability of the Commonwealth or the authority that relates

to the claim ceases to be a liability of the Commonwealth or

the authority and becomes a liability of Comcare; and

(b) Comcare becomes the successor in law in relation to the

liability.

Claims against Commonwealth or authority after commencement

(2) If an asbestos-related claim is made against the Commonwealth or

a Commonwealth authority after the commencement of this Part

then, at the time the claim is made:

(a) a liability of the Commonwealth or the authority that relates

to the claim ceases to be a liability of the Commonwealth or

the authority and becomes a liability of Comcare; and

(b) Comcare becomes the successor in law in relation to the

liability.

Claims against Comcare on or after commencement

(3) If, on or after the commencement of this Part, a person could make

an asbestos-related claim against the Commonwealth or a

Commonwealth authority then:

(a) the person may make the claim against Comcare; and

(b) if the person makes the claim against Comcare--at the time

the claim is made:

(i) a liability of the Commonwealth or the authority that

relates to the claim ceases to be a liability of the

Part 2 Transfer of liabilities

Section 6

8 Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No.

, 2005

Commonwealth or the authority and becomes a liability

of Comcare; and

(ii) Comcare becomes the successor in law in relation to the

liability.

6 Transfer of liabilities from Comcare

Liabilities may be transferred from Comcare

(1) The Minister may, by written instrument, declare that a liability

that ceased to be a liability of a Commonwealth authority and

became a liability of Comcare under section 5 ceases to be a

liability of Comcare and becomes a liability of:

(a) the authority; or

(b) an entity that is a successor in law of the authority.

(2) If the Minister makes a written instrument under subsection (1)

then, immediately after the instrument is made:

(a) the liability ceases to be a liability of Comcare and becomes

a liability of the authority or entity (as the case requires); and

(b) the authority or entity becomes the successor in law in

relation to the liability.

Publication in Gazette

(3) The Minister must publish a copy of an instrument made under

subsection (1) in the Gazette.

(4) A failure to comply with subsection (3) does not affect the validity

of any declaration made under this section.

Instruments not legislative instruments

(5) An instrument made under subsection (1) is not a legislative

instrument.

Minister may not repeal, vary etc. instruments

(6) Subsection 33(3) of the Acts Interpretation Act 1901 does not

apply in relation to this section.

Transfer of liabilities Part 2

Section 7

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

7 Certain consequences of transfer

Application of section

(1) This section applies in relation to a liability that, under section 5 or

6, ceases to be a liability of one entity (the transferor) and

becomes a liability of another entity (the receiver) at a particular

time (the transfer time).

Contracts of insurance

(2) From the transfer time, any contract of insurance to which the

transferor was, or was taken to be, a party immediately before the

transfer time has effect in relation to the liability as if:

(a) the receiver were substituted for the transferor as a party to

the contract; and

(b) any reference in the contract to the transferor were (except in

relation to things that happened before that time) a reference

to the receiver.

Conduct of actions, enforcement of judgments etc.

(3) Without limiting the generality of section 5 or 6:

(a) if, at the transfer time, action is being taken relating to the

liability--the receiver must, immediately after the transfer

time, take over the conduct of that action; and

(b) if, at the transfer time, action is being taken relating to the

liability before a court--the receiver:

(i) replaces the transferor as a party to the action from the

transfer time; and

(ii) may, if the receiver thinks it appropriate to do so, apply

on or after the transfer time to the court to join any other

person as a party to the action; and

(iii) may, on or after the transfer time, conduct or settle the

action; and

been obtained in favour of the transferor but not enforced--

the receiver may take such steps as are necessary to enforce

the judgment.

Part 2 Transfer of liabilities

Section 7

10 Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No.

, 2005

Transferor must comply with certain requirements of receiver

(4) The transferor must comply with any reasonable requirement of the

receiver:

(a) relating to the conduct of any action in respect of the

liability; or

(b) made for the purposes of assisting the receiver to manage the

liability;

including a reasonable requirement that the transferor sign any

documents.

Finance and administration Part 3

Section 8

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

Part 3--Finance and administration

8 Appropriation in respect of certain liabilities transferred to

Comcare

(1) There is to be paid to Comcare such amounts as are necessary to

enable Comcare to discharge any liability that is a liability of

Comcare as a result of the operation of this Act.

(2) The amounts payable to Comcare under this section are to be paid

out of the Consolidated Revenue Fund, which is appropriated

accordingly.

9 Money of Comcare

(1) The Finance Minister may give written directions as to the amounts

in which, and the times at which, money referred to in section 8 is

to be paid to Comcare.

(2) A direction made under subsection (1) is not a legislative

instrument.

10 Access to records

(1) If Comcare has the function of assuming and managing a liability

as a result of the operation of this Act, records (within the meaning

of the Archives Act 1983) that:

(a) are in the possession, custody or control of the

Commonwealth or a Commonwealth authority; and

(b) relate to the liability;

must be made available to Comcare by the Commonwealth or the

authority.

(2) This section does not authorise a Commonwealth record (within

the meaning of the Archives Act 1983) to be transferred or

otherwise dealt with except in accordance with the provisions of

that Act.

Part 3 Finance and administration

Section 11

12 Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No.

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11 Disclosure of information

Comcare may require disclosure of information

(1) Comcare may, by written notice, require the chief executive officer

(however described) of an entity to give Comcare information that:

(a) the chief executive officer knows or can reasonably acquire;

and

(b) relates to a liability that, under section 5, has ceased to be a

liability of the entity and has become a liability of Comcare;

and

reasonable grounds, it is necessary for Comcare to know in

order for Comcare to carry out the function conferred on it by

section 12.

Requirement to disclose information

(2) If the chief executive officer (however described) of an entity is

given a notice under subsection (1), he or she must ensure that it is

complied with as soon as practicable after it is given.

(3) The chief executive officer (however described) of an entity is not

excused from ensuring that a notice given to him or her under

subsection (1) is complied with on the ground that giving

information covered by the notice would contravene the provisions

of any other enactment.

(4) A person is not liable to:

(a) any proceedings for contravening any other law; or

(b) civil proceedings for loss, damage or injury of any kind

suffered by another person;

merely because the person gives information to Comcare to ensure

that a notice under subsection (1) is complied with.

12 Additional function of Comcare

In addition to the functions conferred on Comcare under other

Acts, Comcare has the function of assuming and managing all

Finance and administration Part 3

Section 13

Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No. , 2005

liabilities that are liabilities of Comcare as a result of the operation

of this Act.

Note:

See section 70 of the Safety, Rehabilitation and Compensation Act

1988 for powers relating to this function.

13 Directions by Minister

(1) The Minister may, by notice in writing given to the Chief

Executive Officer of Comcare, give a direction to Comcare with

respect to:

(a) the performance of the function conferred on Comcare by

section 12; or

(b) the exercise of its powers to do anything in connection with

the performance of that function;

otherwise than in relation to a particular case.

(2) Comcare must comply with a direction given under subsection (1).

(3) This section does not affect the application of section 28 of the

Commonwealth Authorities and Companies Act 1997 in relation to

Comcare.

(4) A notice given under subsection (1) is not a legislative instrument.

14 Consent required for delegation

(1) Comcare must obtain the written consent of the Minister before

delegating to a person under section 73B of the Safety,

Rehabilitation and Compensation Act 1988:

(a) the function conferred on Comcare by section 12 of this Act;

(b) a power to do anything in connection with the performance

of that function.

(2) Subsection (1) does not apply if the person to whom the power is

delegated is a member of the staff of, or a consultant to, Comcare.

Part 3 Finance and administration

Section 15

14 Asbestos-related Claims (Management of Commonwealth Liabilities) Bill 2005 No.

, 2005

15 Compensation for acquisition of property

(1) If the operation of this Act 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) The Consolidated Revenue Fund is appropriated for the purposes

of this section.

(4) In this section:

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.

16 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

ASBESTOS-RELATED CLAIMS (MANAGEMENT OF COMMONWEALTH LIABILITIES) BILL 2005