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2002
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister
for Industry, Tourism and Resources,
the Honourable
Ian Macfarlane, MP)
COAL INDUSTRY REPEAL (VALIDATION OF PROCLAMATION) BILL 2002
This Bill makes provision that the
Coal Industry Repeal Act 2001 commenced on
1 January 2002.
The intention of the
Coal Industry Repeal Act 2001 is to
dissolve the Joint Coal Board and transfer all of its functions, staff,
assets and liabilities to New South Wales. The New South Wales Government
enacted complementary legislation to establish a new body,
Coal Services Pty Ltd, to manage the former functions of the Joint
Coal Board. Commonwealth and New South Wales legislation were both passed in
2001 with the support of both sides of their respective Parliaments.
This Bill is necessary to ensure that the
Coal Industry Repeal Act 2001 commenced on
1 January 2002 as intended by the Proclamation signed by the Governor
General in Executive Council on 20 December 2001. An omission to gazette
the Proclamation before 1 January 2002 means that the
Coal Industry Repeal Act 2001 may not have commenced
as was intended. New South Wales has acted as if the Proclamation had been
properly constituted. It is necessary to validate 1 January 2002 as the
commencement date so as to validate all actions taken on the assumption that 1
January 2002 was the commencement date of the
Coal Industry Repeal Act 2001.
This bill has no financial impacts.
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COAL INDUSTRY REPEAL (VALIDATION OF PROCLAMATION) BILL 2002
NOTES ON CLAUSES
1. This clause is a formal provision specifying the short title of the
Bill.
2. This Clause provides a table that specifies the various commencement
dates for each clause of the Bill. Clauses 1, 2 and 6 will commence from the
date on which the Act receives the Royal Assent. Clauses 3, 4 and 5 will
commence retrospectively from 31 December 2001 as soon as the Act receives the
Royal Assent. This retrospective commencement date is needed to ensure that the
Coal Industry Repeal Act 2001 commences on 1 January 2002.
3. This clause indicates the objectives or intention of the Bill.
4. The first objective (clause 3(a)) is that the Coal Industry Repeal
Act 2001 commences on 1 January 2002.
5. The Coal Industry
Repeal Act 2001 provides for the dissolution of the Joint Coal Board and
supports New South Wales legislation, the Coal Industry Act 2001 (NSW),
to provide for the transfer of all the staff, assets, rights and liabilities of
the Joint Coal Board. Section 2 of the Coal Industry Repeal Act
2001 indicates that it will commence on a day to be fixed by Proclamation.
The Governor General in Executive Council on 20 December 2001 signed a
Proclamation fixing 1 January 2002 as the commencement date. However, the
Proclamation was not gazetted prior to 1 January 2002, which may mean that the
Proclamation is not effective and that the Coal Industry Repeal Act 2001
may not have commenced.
6. New South Wales acted as if the Proclamation
was effective and provided the necessary triggers for its own legislation to
come into effect. Action has been taken to transfer the property and staff of
the Joint Coal Board to a new corporation, Coal Services Pty Ltd, which in turn
has been using these resources to manage the former functions of the Joint Coal
Board. The second objective (clause 3(b)) is to validate all actions, such as
these, taken on the assumption that 1 January 2002 was the commencement
date of the Coal Industry Repeal Act 2001.
Clause 4:
Validation of Proclamation
7. This clause validates 1 January 2002 as
the commencement date for the Coal Industry Repeal Act 2001 and
validates all actions taken on the assumption that this was the commencement
date. It does this by indicating in clause 4(2) that the Proclamation is as
effective as if it had been published in the Gazette before 1 January 2002.
Clause 4(1) identifies the Proclamation as the purported Proclamation that fixed
the commencement date as 1 January 2002, was signed by the Governor
General on 20 December 2001 and was not published in the Gazette before 31
December 2001.
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Clause 5: Acquisition of property
8. Section 7 of the
Coal Industry Repeal Act 2001 provides that the Commonwealth pay
reasonable compensation if the operation of that Act results in the acquisition
of property that is not on just terms. This clause ensures that Section 7 of the
Coal Industry Repeal Act 2001 also applies to this Act.
Clause
6: Validation of Commonwealth and New South Wales actions
9. This
Clause is to avoid any doubt about the validity of any ‘past acts’
taken between 1 January 2002 and the date on which this Act receives Royal
Assent. Clause 6(1) broadly defines a ‘past act’ as any act that
was done on the assumption that the
Coal Industry Repeal Act 2001 commenced on 1 January
2002. Clause 6(2) ensures that ‘past acts’ are as valid as if
the Coal Industry Repeal Act 2001 had commenced on
1 January 2001, subject - as referred to in Clause 6(3) - to the
legislative powers of the Commonwealth. In case these legislative powers are
considered to be too broadly defined (in the case say of a High Court
challenge), Clause 6(4) is a safety net provision that provides specific
reliance on the legislative powers associated with the corporations powers of
the Commonwealth under paragraph 51(xx) of the Constitution.
10. Clauses
6(5) and 6(6) recognises that New South Wales may want to make its own
legislation to validate ‘past acts’. These provisions support NSW
making laws that can run concurrently with Commonwealth legislation. They also
aim to avoid doubt, which may arise for instance because of legal jurisdictional
restrictions between the Commonwealth and the States, about the capacity of New
South Wales to make a law validating ‘past acts’.