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13222 Cat. No. 97 2721 3 ISBN 0644 518057
1998
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN
HEARING SERVICES REFORM BILL 1998
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Parliamentary Secretary to
the Minister for Health and
Family Services, the Hon Trish Worth MP)
AUSTRALIAN HEARING SERVICES REFORM BILL
1998
OUTLINE
This Bill repeals the Australian Hearing Services Act 1991 and
provides for a number of transitional provisions to facilitate the restructuring
of the Australian Hearing Services (AHS) Authority as a Commonwealth company.
The operations of AHS, currently operating as a Commonwealth statutory
authority under the Australian Hearing Services Act 1991, are to be
transferred to a Commonwealth owned company limited by shares, established under
the Corporations Law. The Bill provides for the transfer of assets and
liabilities of the Authority, including pending proceedings, to the new company,
and for the transfer of specified liabilities of the Authority to the
Commonwealth. The Bill also provides for the transfer of employees of the
Authority to the new company and protects their accrued entitlements and
continuity of service.
Schedule 1 to the Bill provides for the repeal of
the Australian Hearing Services Act 1991 immediately following the
transfer of AHS operations to the new company, and amendments to the Hearing
Services Administration Act 1997 that are consequential to the reforms
presented in the Bill.
Responsibility for meeting essential community
service obligations (CSOs) on behalf of the Government will be transferred to
the company through contractual arrangements. These CSOs include hearing
services to children, clients with special needs, eligible people in remote
areas, notably Aboriginal and Torres Strait Islander peoples, hearing and noise
related research, hearing loss prevention activities, and industry collaboration
activities focusing on the development of Australian hearing products.
Under the hearing services voucher scheme, the company will compete on
equal terms, as a contracted service provider, with private sector providers for
the delivery of government-funded hearing services to eligible, adult,
non-complex clients.
FINANCIAL IMPACT
The AHS Authority does not receive separate appropriations and it
operates as a separate legal entity. Existing assets and liabilities of the
Authority are to be transferred to the new company, with some possible transfers
of liabilities to the Commonwealth. There is no net impact on Commonwealth
outlays.
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause ^1 - Short Title and
Clause ^2 - Commencement
The first two clauses provide for the short
title of the Bill and for commencement of the legislation. The Act will come
into effect on the day on which it receives Royal Assent, except for Schedule 1
which will commence immediately after the transfer time.
Clause ^3 - Transfer time
This clause defines the transfer time
as the time notified by the Minister for the purposes of this
Bill.
Clause ^4 - Crown to be bound
This clause binds the
Crown in relation to this Bill.
Clause ^5 - External
Territories
This clause extends the operation of this Bill to the
External Territories.
Clause ^6 - Extra-territorial
operation
This clause provides for the operation of this Part of the
Bill outside Australia.
PART 2 - TRANSFER OF ASSETS AND LIABILITIES OF
AUSTRALIAN HEARING SERVICES AUTHORITY
Division 1 -
Preliminary
Clause ^7 - Definitions
This clause provides definitions for
various terms used in the Bill.
Clause ^8 - Nominated
company
This clause provides for the Minister to nominate a specified
company, that is incorporated under Corporations Law and has a share capital, to
be the “nominated company” referred to throughout the Bill
(subclause 1). A copy of the Minister’s declaration must be published in
the Gazette within 21 days (subclause 2).
Division 2 - Transfers of assets and liabilities of the authority
This Division deals with the transfer to the nominated company and to the
Commonwealth, only in the case of specified liabilities, of the Authority's
assets and liabilities which include contractual rights and obligations. It
also deals with associated matters such as pending proceedings in any court or
tribunal and registration of transfers of land.
Clause ^9 -
Liabilities that are to be transferred to the Commonwealth
This
clause provides a mechanism for the Minister to, by notice in the Gazette prior
to the transfer time, declare that specified Authority liabilities will be
transferred to the Commonwealth.
Clause ^10 - Transfer of assets and
liabilities to the nominated company
This clause provides, at the
transfer time, for those Authority liabilities specified in a declaration under
clause ^9 (“declared liabilities”) to vest in the Commonwealth
without any conveyance, transfer or assignment and for the Commonwealth to
become the Authority's successor in law in relation to those liabilities
(subclause 1).
It also provides, at the transfer time, for all
Authority assets and liabilities (other than declared liabilities) to vest in
the new company without any conveyance, transfer or assignment and for the new
company to become the Authority's successor in law in relation to those assets
and liabilities (subclause 2).
Clause ^11 - Pending
proceedings
This clause provides that if, immediately before the
transfer time, the Authority was a party to proceedings pending in a court or
tribunal that relate to an asset or liability that vested in the Commonwealth or
the new company, then the Commonwealth or the new company (as the case requires)
is substituted for the Authority as a party to the proceedings.
Clause ^12 - Exemption from stamp duty and other
taxes
This clause provides that stamp duty and other taxes are not
payable in respect of the transfer of assets or liabilities under this Division,
or in respect of anything done because of, or for a purpose connected with or
arising out of, these transfers.
Clause ^13 - Registration of
transfers of land
This clause allows for the registration of any
right, title or interest in land transferred to the nominated company under this
Bill. It provides for the lodgement of an appropriate certificate signed by the
Minister or a person authorised by the Minister (subclause 1) and for a land
registration official to register that transfer in accordance with the
certificate (subclause 2).
Clause ^14 - Effect of instruments that refer to the Authority
This clause provides that instruments relating to liabilities transferred
to the Commonwealth continue to have effect as if references to the Authority
were instead references to the Commonwealth (subclause 1) and that instruments
relating to assets and liabilities transferred to the nominated company continue
to have effect as if references to the Authority were instead references to the
nominated company (subclause 2).
Division 3 - Transfer of staff
This Division deals with the transfer to the nominated company of
employees of the Authority and associated matters.
Clause ^15 - Transfer of employees
This clause provides for employees of the Authority immediately before
the transfer time to become employees of the nominated company at the transfer
time.
Clause ^16 - Accrued benefits
This clause protects the accrued entitlement of a transferred employee to
benefits such as annual leave, sick leave, any long service leave entitlement
and any period of employment for termination purposes. Once transferred to the
nominated company, a transferred employee is taken to have accrued an
entitlement to benefits that is equivalent to the entitlement that the person
had accrued as an employee of the Authority.
This clause is necessary
because the certified agreement of the Authority, once transferred to the
nominated company, is not sufficient to ensure the transfer of the accrued
benefits.
Clause ^17 - Continuity of service
This clause deals with continuity of service for the calculation of
various employee entitlements. The service of a transferred employee as an
employee of the nominated company is taken to have been continuous with the
service of the employee as an employee of the Authority.
Clause 18 - Preservation of rights under Part IV of the Public Service Act 1922
This clause ensures that any entitlement a transferred employee may have
under Part IV of Public Service Act 1922 is recognised. This Part
is applicable while the new company is a Commonwealth owned company.
Clause ^19 - Termination payments
This clause ensures that termination-related payments, such as payment
out of accrued annual leave entitlements and severance benefits, are not paid to
a transferred employee merely because he or she ceased to be an employee of the
Authority as a result of this Division.
Division 4 - Miscellaneous
Clause ^20 - Exemption of nominated company from State and Territory taxes
This clause provides for the nominated company to be exempt from taxation
under a law of a State or Territory as long as the company is wholly
Commonwealth owned and carries on activities within the legislative powers of
the Parliament (subclause 1). It also provides for a regulation to specify a
particular State or Territory law to which the exemption will not apply
(subclause 2).
Clause ^21 - Nominated company not to be an agency of
the Commonwealth etc.
This clause includes provisions to clarify the
application of Commonwealth, State or Territory laws to the new company. These
are standard provisions intended to remove the new company from the many
administrative and other obligations that apply to Commonwealth entities which
are inappropriate in relation to an entity intended to operate on a competitive
basis in the market place.
For the purposes of a law the company is not
to be treated as a “Commonwealth authority”, or as
“established for a public purpose or for a purpose of the
Commonwealth” or as “a public authority or an agency or
instrumentality of the Crown” within the ordinary meaning of those terms
(subclause 1). This means that any law which uses these expressions in a
different way, for example, with a broader definition which includes reference
to Commonwealth controlled companies, will apply to the nominated company. A
future law could also expressly apply to the new company.
The term
“law” as used in this clause is defined to mean Commonwealth, State
and Territory Acts and regulations or other instruments subordinate to those
Acts (subclause 2).
Clause ^22 - Compensation for acquisition of
property
This clause is a standard provision included in legislation
providing for the transfer of assets. It applies in the unlikely event that the
operation of Division 2 of Part 2 of the Bill results in the “acquisition
of property” of a third party otherwise than on just terms. This clause
provides protection to that third party and is intended to prevent the
acquisition from being invalid as a breach of paragraph 51(xxxi) of the
Constitution by making provision for reasonable compensation to be paid by the
Commonwealth to the affected party. Affected parties can institute proceedings
in the Federal Court if they cannot reach agreement with the Commonwealth on the
amount of compensation (subclause 2).
PART 3 - AMENDMENTS
Clause ^23 - Schedule(s)
This clause provides for each Act
referred to in the Schedules to the Bill to be amended in the manner indicated.
PART 4 - MISCELLANEOUS
Clause 24 - Application of the Legislative Instruments Act
This clause provides that any instrument made under this Bill, with the exception of regulations made under clause 25 (see below), will be exempt from the Legislative Instruments Act 1998.
Clause ^25 - Regulations
This clause provides for the Governor-General to make regulations
prescribing matters required or permitted by the Bill or necessary for carrying
out the Bill (subclause 1). In particular, it provides for regulations to be
made for matters of a transitional or saving nature arising from the repeal of
the Australian Hearing Services Act 1991 (subclause 2).
SCHEDULE 1 - AMENDMENTS AND REPEALS
This Schedule proposes the repeal of the Australian Hearing Services
Act 1991, and proposes amendments to the Hearing Services Administration
Act 1997 which are consequential to the reforms presented in the Bill and to
the repeal of the Australian Hearing Services Act 1991.
Item 1
- repeals the Australian Hearing Services Act 1991
This item repeals the whole of the Australian Hearing Services Act 1991 immediately after the transfer time. This item will have the effect of abolishing the Authority. It is intended that the functions currently performed by the Authority be performed by the nominated company.
Item 2 - amends section 4 (definition of AHS) of the Hearing Services Administration Act 1997
This item repeals the definition of “AHS”.
Item 3 - repeals subsection 20(5) of the Hearing Services
Administration Act 1997
This item repeals the subsection which
currently allows the Authority to be a contracted service provider without
having been accredited by the Minister under the Act. It is intended that the
nominated company be accredited under the Act.