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1999
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
ALBURY-WODONGA
DEVELOPMENT AMENDMENT BILL
1999
EXPLANATORY
MEMORANDUM
(Circulated
by Authority of the Minister for Regional Services,
Territories
and Local Government, Senator the
Honourable Ian Macdonald)
ISBN: 0642 419205
Outline
The
Purpose of the Bill is to simplify the structure and streamline the functions of
the Albury Wodonga Development Corporation (AWDC) in preparation for its
abolition by a future Act. The Bill will also facilitate the winding-up of the
joint Commonwealth/State scheme under which the Commonwealth, New South Wales
and Victoria agreed that a new integrated urban complex be developed in the
Albury-Wodonga region. The Bill is required to implement decisions of
successive Governments and the Albury Wodonga Ministerial Council to wind up the
Corporation and the Scheme.
The Commonwealth
legislation is to be integrated with State legislation in NSW and Victoria which
will abolish the State Corporations and confer the assets, rights and
liabilities of the State Corporations on the Commonwealth Corporation. The
complementary legislation of the States will facilitate transitional
arrangements and may confer additional functions on the
AWDC.
The AWDC will become solely responsible
for the disposal of the assets of the Corporations and will continue to have the
capacity to adopt active asset management strategies. The Bill puts into effect
decisions of the Albury-Wodonga Ministerial Council to dispose of, in an orderly
manner and without distorting the market, the assets of the AWDC and the State
Corporations. The acceptance of the rights, assets and liabilities of the State
Corporations by the AWDC will be contingent on Ministerial approval to ensure
appropriate scrutiny of the transfer
arrangements.
A new agreement dealing with wind
up of the Corporations will also be entered into between the Commonwealth and
the relevant States to replace the Albury-Wodonga Area Development Agreement. It
is proposed that an indicative winding up date be included in the winding-up
agreement. The winding-up agreement will also deal with particulars of State
functions which are to be transferred to the Corporation. The Bill provides for
staged commencement arrangements to ensure those parts of the legislation which
require complementary State legislation and an agreement between the
Commonwealth and the relevant States do not commence until the last of these
actions is completed.
Key provisions of the
Bill provide for redefinition of the functions of the AWDC so that it will be
focused on preparing itself for winding-up. These provisions include a specific
asset disposal function for facilitating the winding-up of the joint
Commonwealth/State scheme. The AWDC may also act as an agent of the
Commonwealth for disposal of Commonwealth land in the Albury-Wodonga
region.
Simplified membership provisions are
to be introduced. Members appointed by the Minister will replace the
Ministerial Council. A requirement for members to have knowledge and
understanding of the Albury-Wodonga region will assist in maintaining a regional
focus during the wind down period.
Provisions
have been included for a winding-up plan and for annual operational plans. This
is consistent with Ministerial Council decisions and the new role of the
Corporation. This will reinforce a new strategic focus on winding-up the
Corporation and will enhance accountability during the winding- up
period.
The Bill provides for the repeal of the
Albury–Wodonga Development (Financial Assistance) Act 1973
which provides a mechanism for funding the relevant States. This Act is no
longer required with the abolition of the State Corporations.
Investments in the Scheme by the States and the
Commonwealth are to be recouped from the sale of assets by the
AWDC.
There will be a one off payment to
Victoria of $3.8m after the Commonwealth and States’ legislation is
passed. No payments will be due to NSW. A payment of $10.2m has been made to
the Commonwealth in 1999/2000.
It is
anticipated that the return to the Commonwealth will be $15.0m in 2000/2001.
The return in future years will depend on the success in disposal of assets and
may fluctuate depending on market circumstances.
Albury-Wodonga Development Amendment
Bill 1999
Notes on
Clauses
1. Clause
1
The first clause provides that the Act may be
cited as the Albury-Wodonga Development Amendment Act
1999.
2. Clause
2
Clause 2 provides for commencement of the Act
on a staged basis. This is necessary to ensure that the machinery parts of the
legislation which are not dependent on complementary actions of the States of
NSW and Victoria commence on Royal Assent, while that part of the legislation
which requires complementary State legislation and an Agreement between the
Commonwealth and the relevant States does not commence until the last of these
actions is completed.
3. Clause
3
Clause 3 is a machinery provision which
provides that Acts specified in the schedules are amended or repealed as set out
in the applicable items in the schedule concerned.
4. Item 1
5. Item 2 – Part 1A – Albury-Wodonga
Area Development Winding-up Agreement
Item 2
provides for the mechanism for the Minister to make a Winding-up Agreement
through a disallowable instrument in an approved form and for Parliamentary
approval upon signature of the parties. It also specifically provides for
commencement in accordance with the staged commencement arrangements and for
simultaneous termination of the original Commonwealth/State
Agreement.
6. Items 3-12
Item
3 – Item 12 repeal, amend and introduce new definitions which are
consistent with the new winding up functions and streamlined operations of the
Corporation.
7. Item
13
Item 13 removes a provision that makes
definitions in the Agreement automatically apply to the Act. Such a provision
is inappropriate for a proposed Winding-up Agreement which does not form part of
the Act. Provision is made in Part 1A for termination of the original
Commonwealth/State Agreement.
8. Item
14
Item 14 repeals those powers of the Minister
which are dependent on conferral under a State Act or an Agreement with the
relevant States. These powers are no longer necessary as the Minister will not
be performing functions under State Acts.
9. Item 15
11. Item 17
12. Item 18
Items
18, 28, 36, 42, 44, 56, 57, 61 and 63 remove the word “Australian”
before Minister, as this distinction from State Minister is no longer necessary
with the withdrawal of the State roles.
13. Item
19
Items 19, 22 and 54 provide a specific
reference to the “Winding-up Agreement” for purposes of
clarification in lieu of “Agreement”. Part 1A provides for an
“Albury – Wodonga Winding-Up Agreement” and this is defined in
subsection 3(1).
14.1 Item 20 removes a provision confining activities to
designated areas as the concept of designated areas is unnecessary when
operations are being wound down.
14.2 An
unrelated provision is substituted which clarifies how functions and powers
conferred by the relevant States for facilitating disposal of assets, winding up
and facilitating winding-up of the joint Commonwealth/State scheme are
complementary to the Act. This is to reinforce the constitutional validity of
functions, powers and duties which are exercised in the winding up of the
Corporation.
15. Item
21
Item 21 makes the Minister responsible for
issuing directions to the Corporation, rather than the Ministerial Council which
is to have no role under the legislation.
16. Item
22
Item 22 (see item
19).
17. Item
23
Item 23 clarifies that winding up functions
do not require disposal of all assets or prevent conferral of functions on the
Corporation by the relevant States.
18. Item
24
Item 24 provides for changes to the
composition of the Corporation, which will result in the Corporation consisting
of a Chairperson, two other members and the Chief Executive
Officer.
19. Item
25
Item 25 makes new eligibility criteria for
the Chairperson and appointed members based upon knowledge and understanding of
issues relating to the development of the Albury-Wodonga region. It reflects an
intention to provide the basis for balanced and informed
representation.
20. Item
26
Item 26 removes membership nomination
provisions which are not relevant to the new membership
structure.
21. Item
27
Item 27 removes the bar on persons over the
age of 65 being members in accordance with current Commonwealth
practice.
23. Item
28
Item 28 (see item
18).
24. Item
29
Item 29 removes a reference to executive
members. The new membership structure does not include this category of
member.
25. Item
30
Item 30 removes a reference to the
“Area” and substitutes “Albury-Wodonga region”. The
concept of an “Area” which may be designated has been removed from
the Bill because it is unnecessary in the wind-up phase where the AWDC will be
primarily disposing of assets.
26. Item
31
Items 31,32 and 45 substitute
“Minister” for “Ministerial Council”, as the Ministerial
Council will no longer have a role with respect to the Corporation under the
legislation.
27. Item
32
Item 32 (see item
31).
28. Item
33
Item 33 removes a reference to a process of
State nomination for a Deputy Chairperson of the AWDC as this office will not
continue under the revised membership
arrangements.
29. Item
34
Items 34, 35, 37, 39, 40 and 41 remove
references to “Deputy Chairperson” or “Deputy Acting
Chairperson” as these offices are abolished under the amended
Act.
30. Item
35
Item 35 (see item
34).
31. Item
36
Item 36 (see item
18).
32. Item
37
Item 37 (see item
34).
33. Item
38
Item 38 removes a requirement to consult
with a State Minister concerning the appointment of an acting Deputy
Chairperson, as the office is abolished under the amended Act and the State will
have no ongoing role.
34. Item
39
Item 39 (see item
34).
35. Item
40
Item 40 (see item
34).
35. Item
41
Item 41 (see item
34).
36. Item
42
Item 42 (see item
18).
37. Item
43
Item 43 removes a requirement to obtain
nominations from the Ministerial Council and for consultations with Councils
concerning acting member appointments. The Ministerial Council will have no
role under the amended Act and no specific provision is to be made for (local)
Council membership.
38. Item
44
Item 44 (see item
18).
39. Item
45
Item 45 (see item
31).
40. Item
46
Items 46 and 49 provide that an appointed
member rather than a “Deputy Chairperson” may substitute for the
Chairperson in certain meeting contexts. This reflects the simplified
membership structure of the
Corporation.
41. Item
47
Item 47 removes a provision which requires
the Minister or Chairperson to convene a meeting at the request of two members,
as such a provision is redundant with the revised membership
structure.
42. Item 48
Item 48 removes a reference to executive
members. The new membership structure does not include this category of
member.
43. Item 49
Item 49 (see item
46).
44. Item 50
Item 50 substitutes a redrafted delegation
provision. It clarifies that the Corporation may delegate its powers and
functions to members, officers and employees.
45. Item 51 Part IV
Item 51 provides for
additions to Part IV through a new Part IVA which requires the Corporation to
prepare operational and winding–up plans and a Part IVB which provides for
the transfer of assets, contracts and liabilities from State bodies to the
Corporation. The provisions in Part IV are based on transfer concepts common in
other Commonwealth legislation.
46. Subsection
20A
Subsection 20(A) provides for a
“winding-up plan”. The plan, which is subject to Ministerial
Direction, must set out how the Corporation will perform its functions and must
inform the Minister of matters that might significantly affect the carrying out
of the plan. This provision will provide a framework for monitoring the winding
up of the Corporation.
47. Subsection
20B
Subsection 20(B) makes provision for an
annual operational plan to give effect to the winding-up plan. The two plans
will provide direction to the Corporation and enhance
accountability.
48. Subsection
20C
Subsection 20(C) includes definitions of
contract, instrument and relevant State
body.
49. Subsection
20D
Subsection 20D provides for the transfer of
assets from relevant State bodies to the Corporation and for matters incidental
to the transfer of assets. It provides that the Minister must consent and
gazette the transfer of assets or classes of assets conferred by relevant State
laws. This is necessary to ensure appropriate scrutiny of the transfer
process.
50. Subsection
20E
Subsection 20E provides for the transfer of
contractual rights and obligations from relevant State bodies to the Corporation
and for matters incidental to the transfer of contractual rights and
obligations. It provides that the Minister must consent and gazette the
transfer of rights and obligations conferred by relevant State laws. This is
necessary to ensure appropriate scrutiny of the transfer
process.
51. Subsection
20F
Subsection 20F provides for the transfer of
liabilities from relevant State bodies to the Corporation and for matters
incidental to the transfer of liabilities. It provides that the Minister must
consent and gazette the transfer of liabilities or classes of liabilities
conferred by relevant State laws. This is necessary to ensure appropriate
scrutiny of the transfer
process.
52. Subsection
20G
Subsection 20G makes it explicit that the
transfers will not be subject to
taxation.
53. Subsection
20H
Subsection 20H provides a constitutional
safety net to guarantee that provisions in Part IV which result in the
acquisition of property meet constitutional compensation
requirements.
54. Item
52
Item 52 removes a reference to the
development of the growth complex, as this concept is unnecessary in the winding
up phase of the Corporation.
55. Item 53
Item 53 removes the capacity of the
Corporation to borrow funds from the States of New South Wales and Victoria, as
this is no longer appropriate with the Commonwealth assuming responsibility for
the assets and liabilities of the State
Corporations.
56. Item
54
Item 54 (see item
19).
57. Item
55
Item 55 removes the requirement for the
Corporation to obtain Ministerial Council approval of contracts for the
acquisition or disposal of property, as the Ministerial Council is to have no
role under the legislation. With the revised functions, it is appropriate that
the Minister’s power of direction be used to provide more flexible
arrangements as warranted.
58. Item 56
Item 56 (see item
18).
59. Item
57
Item 57 (see item
18).
60. Item
58
Item 58 removes a requirement for referral
of Audited Statements to the Ministerial Council, as the Ministerial Council is
to have no role under the
legislation.
61. Item
59
Item 59 provides the Minister with a power
to delegate all his powers other than the approval of the Winding-up Agreement
to an officer of the Senior Executive Service of the
Commonwealth.
62. Item
60
Item 60 removes the requirement to prepare a
report on the State Corporation’s operations as the State Corporations are
to be abolished.
63. Item
61
Item 61 (see item
18).
64. Item
62
Item 62 removes a requirement for referral
of operational and financial statements to the Ministerial Council, as the
Ministerial Council is to have no role under the
legislation.
65. Item
63
Item 63 (see item
18).
66. Item
64
Item 64 repeals schedules1, 2 and 3, which
are the original Albury-Wodonga Area Development Agreement and amendments to the
Agreement. These are no longer necessary and are to be replaced by an
Albury-Wodonga Area Winding-Up Agreement under Part
1A.
67. Item
65
Item 65 clarifies that appointments made
after an amendment to subsection 10(3), which applies the appointment criteria
of knowledge and understanding of the Albury-Wodonga Region, are subject to
these provisions from the date of
commencement.
68. Item
66
Item 66 is a saving provision to ensure that
any imperfection in the appointment process of an existing member under the
previous provisions does not affect his ongoing
appointment.
69. Item
67
Item 67 is a transitional provision to
ensure the terms and conditions of the appointment of the Chief Executive
Officer before the commencement of this item are unaffected by the
amendments.
70. Item
68
Item 68 is a transitional provision to
ensure determinations applying to the terms and conditions of appointed members
in force immediately before the amendments apply as determinations under the
amended Act.
71. Item
69
Item 69 is a transitional provision to
ensure determinations applying to the terms and conditions of acting members in
force immediately before the amendments apply as determinations under the
amended Act.
72. Item
70
Item 70 is a transitional provision to
clarify that the requirement for an annual operational plan in the new provision
under subsection 20(B)(1) of the Act does not require a plan to be prepared for
the financial year in which the amendment
commences.
73. Item
71
Item 71 ensures that the Corporation shall
continue to prepare annual reports for the State Corporations for that part of
the financial year in which they continued to exist, notwithstanding an
amendment to the Act which deletes a requirement to report for the State
corporations.
Item 1 repeals the Albury-Wodonga Development
(Financial Assistance) Act 1973. This Act provides for a process for the
Commonwealth to provide financial assistance to the States. It is redundant
with the abolition of the State Corporations.