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2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES / THE SENATE
ALBURY-WODONGA DEVELOPMENT CORPORATION (ABOLITION)
BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Finance,
Senator the Hon Mathias Cormann)
ALBURY-WODONGA DEVELOPMENT CORPORATION (ABOLITION) BILL
2014
OUTLINE
On 13 May 2014 the Government announced, as part of its Smaller Government
measures, that it would abolish the Albury-Wodonga Development Corporation
(AWDC) and transfer its remaining property management functions, and its
remaining assets and liabilities, to the Commonwealth by 1 July 2015. The
Government's Smaller Government measures involve the abolition or merger of
Government bodies where possible, to eliminate duplication, remove waste,
streamline Government services and reduce the cost of government administration for
taxpayers.
The purpose of the Albury-Wodonga Development Corporation (Abolition) Bill 2014
(the Bill) is to give effect to the Government's commitment to abolish the AWDC.
The Bill repeals the Albury-Wodonga Development Act 1973 (AWD Act). The Bill
also contains arrangements to ensure the orderly transfer of the existing assets and
liabilities of the AWDC to the Commonwealth to hold and manage.
Financial impact statement
This reform will achieve efficiencies through the transfer of the AWDC's functions
into the Department of Finance (the Department) which will reduce duplication of
government effort in property management and improve coordination. While the Bill
will achieve savings to government, the financial impact on both the Commonwealth
and the community is low.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
This Bill repeals the AWD Act, abolishes the AWDC and transfers its remaining
property management functions, and its remaining assets and liabilities, to the
Commonwealth.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
The Minister for Finance, Senator the Hon Mathias Cormann
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ALBURY WODONGA DEVELOPMENT CORPORATION (ABOLITION)
BILL 2014
NOTES ON CLAUSES
Section 1 provides that the name of the Bill, if enacted, is the Albury-Wodonga
Development Corporation (Abolition) Act 2014.
Section 2 outlines the commencement of different parts of the Bill.
Sections 1 to 3 of the Bill, the machinery provisions of the Bill, will take effect on
Royal Assent.
Schedule 1, Parts 1 and 2, which repeal the AWD Act and make some consequential
amendments to some other Commonwealth Acts, commence on a date to be fixed by
Proclamation or, if no such date is fixed, six months from Royal Assent or
1 July 2015, whichever date falls later. This is consistent with the Government's
commitment to abolish the AWDC and transfer its remaining property management
functions and its assets and liabilities to the Commonwealth by 1 July 2015. This
provision provides for a transitional period, between the date of Royal Assent and the
date of the abolition of the AWDC, to ensure that sufficient time is allowed to prepare
for the orderly transfer of assets and liabilities to the Commonwealth. It also gives the
Government some flexibility in determining the appropriate time to abolish the
AWDC under the Bill.
Schedule 1, Part 3, which contains the transitional provisions associated with
transferring the assets and liabilities of the AWDC to the Commonwealth, commences
the day after Royal Assent. This Part commences the day after Royal Assent to allow
appropriate transitional arrangements, such as any Ministerial delegations (item 23)
and any transitional rules (item 25), to be put into place before the repeal of the AWD
Act and the abolition of the AWDC. However, under these provisions the transfer of
assets and liabilities will not occur until the `commencement time', which is when the
AWD Act is repealed and the AWDC is abolished under Schedule 1, Part 1 (see the
definition of `commencement time' in item 8). The effect of these provisions is that
the assets and liabilities of the AWDC will be transferred to the Commonwealth
immediately upon its abolition (which will be on a date to be fixed by Proclamation
or, if no such date is fixed, six months from Royal Assent or 1 July 2015, whichever
date falls later).
Section 3 provides that each Act that is specified in a Schedule to this Act is amended
or repealed as set out in the Schedule concerned and any other item in a Schedule to
this Act has effect according to its terms.
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Schedule 1 - Amendments
Summary
Schedule 1 repeals the AWD Act (Part 1), makes consequential amendments (Part 2)
and sets out transitional provisions relating to the transfer of assets and liabilities from
the AWDC to the Commonwealth (Part 3).
Part 1 - Repeals
Item 1 repeals the whole of the AWD Act. The AWDC is a body corporate created
under statute and repealing the AWD Act abolishes the AWDC. As a result of this
repeal, all regulations and legislative instruments made under the AWD Act are also
repealed.
Part 2 - Amendments
Item 2 amends Division 1 of Part II of Schedule 2 to the Freedom of Information Act
1982 (FOI Act) by repealing the item which currently exempts the AWDC, in relation
to documents in respect of its commercial activities, from the operation of the FOI
Act. This provision will no longer be necessary once the AWDC is abolished.
Item 3 amends Part 3 of Schedule 2 to the Remuneration and Allowances Act 1990 by
repealing the item dealing with the Chair of the AWDC. With the abolition of the
AWDC, it will not be necessary to provide for the remuneration and allowances of the
Chair of the AWDC.
Items 4, 5 and 7 make some consequential amendments to the Urban and Regional
Development (Financial Assistance) Act 1974 (the Financial Assistance Act). The
Financial Assistance Act provides that the Commonwealth may provide financial
assistance, for purposes connected with urban and regional development, by way of a
loan or otherwise, to a State, in respect of expenditure by that State or by an
`approved body'. Currently the AWDC is an `approved body' for the purposes of the
Financial Assistance Act. Consequently, these amendments will remove the existing
references in this Act to the AWDC which will become redundant upon its abolition.
Item 5, accordingly, inserts new subsection 3A(1) into the Financial Assistance Act
which provides that the Minister may, in writing, approve a body for the purposes of
this Act. As is the case presently, the Minister may, under the Financial Assistance
Act, approve a body for its purposes, if the body is a State authority or a local
governing body or a body corporate constituted for purposes other than the acquisition
of gain by its individual members. New subsection 3A(2) is inserted into the
Financial Assistance Act to assist readers. It simply highlights that an approval made
under subsection 3A(1) does not fall under the definition of `legislative instrument'
under section 5 of the Legislative Instruments Act 2003. It is in no way purporting to
exempt the section from the Legislative Instruments Act 2003.
Item 6 is a transitional provision arising from the consequential amendments to the
Financial Assistance Act made by items 4, 5 and 7. It will preserve any existing
approvals made by the Minister under paragraph (b) of the definition of `approved
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body' in section 3 of the Financial Assistance Act, which are in force immediately
before the commencement of this Part. This transitional provision is required
because, as discussed above, a new provision (section 3A) dealing with `approved
bodies' will be inserted into the Financial Assistance Act by item 5.
Part 3 - Transitional provisions
Division 1 - Introduction
Item 8 defines several terms used throughout this Part that are relevant to the
interpretation of its provisions.
In particular, `assets' and `liabilities' are defined broadly to ensure that all assets and
liabilities, actual, contingent or prospective of the AWDC are covered.
`Land' is also defined broadly to mean any legal or equitable estate or interest in real
property, whether actual, contingent or prospective.
The definition of `instrument', which is not intended to be an exhaustive definition,
includes a contract, deed, undertaking, arrangement, agreement, notice, authority,
order, instruction and an instrument made under an Act or under a legislative
instrument.
`Commencement time', which is when the assets and liabilities of the AWDC will be
transferred to the Commonwealth (see items 9(2) and 10(2)), is defined to mean the
commencement of Part 1 of this Schedule, which will be the time the AWD Act is
repealed (either on a date to be fixed by Proclamation or, if no such date is fixed, six
months from Royal Assent or 1 July 2015, whichever date falls later). The effect of
this is that the assets and liabilities of the AWDC will be transferred to the
Commonwealth immediately upon its abolition.
Division 2 - Transfer of assets and liabilities
Division 2 (items 9-17) provides for the transfer of the assets and liabilities of the
AWDC to the Commonwealth by statutory novation.
Item 9 provides that at the time the AWDC is abolished, any of its assets cease to be
assets of the AWDC and become assets of the Commonwealth and there is no need
for any conveyance, transfer or assignment. The Commonwealth becomes the
successor in law in relation to the assets.
Item 10 provides that at the time the AWDC is abolished, any of its liabilities cease to
be liabilities of the AWDC and become liabilities of the Commonwealth and there is
no need for any conveyance, transfer or assignment. The Commonwealth becomes
the successor in law in relation to the liabilities.
Item 11 provides a process for registration of the vesting of land (including any
interest in land) that transfers to the Commonwealth under this Division.
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Item 12 provides a process for registration of the vesting of an asset other than land,
in the event that any such asset (the vesting of which is suitable for registration)
transfers to the Commonwealth under this Division.
Under both items 11 and 12, subitem (2) is included to assist readers. It simply
highlights that a certificate made under subitem 11(1) or subitem 12(1) does not fall
under the definition of `legislative instrument' under section 5 of the Legislative
Instruments Act 2003. It is in no way purporting to exempt these items from the
Legislative Instruments Act 2003.
Division 3 - Transfer of other matters
Division 3 (items 13-17) provides for the transfer of matters, other than assets and
liabilities, from the AWDC to the Commonwealth.
Item 13 provides that once the AWDC is abolished, anything done by or in relation to
the AWDC has effect as if it had been done by, or in relation to, the Commonwealth.
Item 14 provides that once the AWDC is abolished the Commonwealth is substituted
for the AWDC as a party to any proceedings that were pending in any court or
tribunal to which the AWDC was a party. This provision is designed to ensure that
any existing litigation is not affected.
Item 15 provides that any records or documents that were in the AWDC's possession
immediately before it is abolished are transferred to the Department once the AWDC
is abolished.
Item 16 is designed to ensure that any remaining complaints or investigations with
respect to the AWDC, being dealt with under a Commonwealth law and which have
not been disposed of at the time it is abolished, may be dealt with by the relevant
Commonwealth entity to their completion, notwithstanding the abolition of the
AWDC. `Commonwealth entity' is defined to mean an individual or body exercising
powers or performing functions under a law of the Commonwealth (see the definition
in item 8). For example, this provision means that any remaining complaints or
investigations under the Ombudsman Act 1976 with respect to the AWDC may be
dealt with by the Ombudsman to their completion, notwithstanding the abolition of
the AWDC.
Item 17 provides that the AWDC is replaced by the Commonwealth for certain
instruments, when those instruments were in force immediately before the AWDC is
abolished and the instrument makes a reference to the AWDC. For example, the
Commonwealth is substituted as a party on all existing contracts, in which the AWDC
is a party and were still in force immediately before the AWDC is abolished.
Subitem 17(2), though, provides that the Commonwealth is not substituted for the
AWDC with respect to some specified instruments and some categories of
instruments for which it is not appropriate to substitute the Commonwealth for the
AWDC. For example, it is not appropriate to substitute the Commonwealth for the
AWDC under item 17(1) with respect to land registration titles under a State register,
as the registration of these titles will be transferred administratively from the AWDC
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to the Commonwealth in accordance with the process set out in item 11 (see item
17(2)(c)). Accordingly, instruments which are exempted from the operation of item
17(1) under item 17(2) include an Act or regulations, an instrument made under Part
3, an instrument that is part of, or associated with, a register referred to in item 12 or
13, the Winding-up Agreement (within the meaning of the AWD Act, as in force
immediately before the AWDC is abolished), an instrument made under the Winding-
up Agreement or under the AWD Act or an instrument specified in an instrument
under subitem 17(3). Subitems 17(2)(f) and 17(3) allow the Minister to specify, by
legislative instrument, that an instrument is an exempt instrument. This provides the
responsible Minister with the ability to exempt additional instruments from the
substitution of the Commonwealth for the AWDC where considered necessary.
Division 4 - Corporation's staff
Division 4 (item 18) relates to the staff of the AWDC.
Item 18 provides that nothing in this Part results in the appointment, engagement or
employment of an AWDC member, the CEO or an AWDC officer, employee or
consultant to the Commonwealth. That is, under this Bill, the AWDC Members,
CEO, officers, employees and consultants do not transfer to the Commonwealth.
Division 5 - Corporation's final annual report
Division 5 (item 19) contains provisions which relate to the AWDC's final annual
report. Under sections 39 and 46 of the Public Governance, Performance and
Accountability Act 2013 (PGPA Act), the AWDC is required to prepare annual
performance statements and an annual report. (The AWDC, being a body corporate
that is established by a law of the Commonwealth is a `Commonwealth entity' for the
purposes of the PGPA Act: see section 10 of the PGPA Act.) This Division is
designed to ensure that a final report on the operations of the AWDC is prepared by
the Department after the abolition of the AWDC and the transfer of its assets and
liabilities to the Commonwealth.
Item 19 provides that the Secretary of the Department must prepare and give to the
Minister a final report on the operations of the AWDC. This final report will cover
one of the following time periods depending on the date of the abolition of the
AWDC:
if, at the time of its abolition, no annual report under section 46 of the PGPA
Act has been produced for the previous reporting period - the period of time
between the start of this previous reporting period and the date of its abolition;
or
otherwise - the period of time between the start of the reporting period in
which the AWDC is abolished and the date of its abolition.
This ensures that the AWDC's reporting obligations to the Minister and to the
Parliament are still met for the time period involved. This item is designed to allow
for flexibility for final reporting dependent upon the date of the abolition of the
AWDC. `Reporting period' is defined as meaning a reporting period, within the
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meaning of the PGPA Act, for the AWDC. The final report must meet the
requirements set out in sections 39 and 43 of the PGPA Act.
In preparing the final report, the Secretary may include the report in the Department's
annual report for the financial year in which the last day of the final reporting period
occurs.
If the Secretary does not include the report in the Department's annual report, then the
Secretary must give the relevant report to the Minister within 3 months after the end
of the final reporting period. On receipt of the report, the Minister must table it in
each House of the Parliament as soon as practicable. The Secretary must also publish
the report on the Department's website as soon as practicable after the report is tabled
in the House of Representatives. In special circumstances, the Minister may grant the
Secretary an extension of time to provide the report to the Minister.
Division 6 - Transitional functions and powers
Division 6 (item 20) contains provisions dealing with the transitional functions and
powers of the Commonwealth arising from the abolition of the AWDC and the
transfer of its remaining assets.
Item 20 is intended to avoid any doubt that the Commonwealth has all the necessary
functions and powers to prepare and dispose of land transferred from the AWDC, as
part of the timely wind-up of the joint Commonwealth/State scheme and
consequential to the transfer of these assets to the Commonwealth. These functions
and powers may include the Commonwealth entering into contracts and
arrangements, constructing buildings and works, and carrying on services, whether
directly or indirectly.
Subitem 20(2), however, provides that this item is not intended to limit what the
Commonwealth may otherwise do with, or in relation to the assets transferred from
the AWDC.
Subitem 20(3) provides in this item, `joint Commonwealth/State scheme' has the
same meaning as in the AWD Act (as in force immediately before its repeal).
Division 7 - Other matters
Division 7 (item 21-25) contains miscellaneous provisions.
Item 21 provides that State and Territory taxes, such as stamp duty, do not apply to
the transfer of the assets and liabilities from the AWDC to the Commonwealth. This
item is a standard provision contained in Commonwealth laws effecting the transfer of
assets and liabilities.
Item 22 provides that a document that appears to be a certificate made or issued under
this Part is taken to be such a certificate and is taken to have been properly given,
unless the contrary is established. This means that any certificate made or issued
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under this Part (for example a certificate made under item 11 or 12) is taken to be
authentic and accepted as proof of its contents until proved otherwise.
Item 23 provides that the Minister may, by writing, delegate all or any of his or her
powers and functions under this Part to either the Secretary of the Department, a
member of the Senior Executive Service (SES) of the Department, or an acting SES
employee of the Department. Subitem 23(2) provides that in exercising powers or
functions under a delegation, the delegate must comply with any directions of the
Minister.
Item 24 provides for compensation to be paid by the Commonwealth to a person from
whom property is acquired on other than just terms within the meaning of section
51(xxxi) of the Constitution. If the Commonwealth and the person in question cannot
agree on the amount of any such compensation to be paid, the Federal Court of
Australia may determine a reasonable amount of compensation for the acquisition of
the property.
Item 25 provides that the Minister may, by legislative instrument, make rules
prescribing matters of a transitional nature (including prescribing any saving or
application provisions) relating to the amendments or repeals made by this Schedule.
This item is a standard provision contained in transitional schemes such as these and
will allow for additional transitional rules to assist in giving effect to this Bill,
including dealing with transitional matters that were not foreseen when the Bill was
being drafted.
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