Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004 - 2005 - 2006 - 2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FORESTRY MARKETING AND RESEARCH AND DEVELOPMENT
SERVICES (TRANSITIONAL AND CONSEQUENTIAL PROVISIONS)
BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by Authority of the Minister for Fisheries, Forestry and Conservation,
Senator the Hon Eric Abetz)
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FORESTRY MARKETING AND RESEARCH AND DEVELOPMENT
SERVICES (TRANSITIONAL AND CONSEQUENTIAL PROVISIONS)
BILL 2007
GENERAL OUTLINE
This is the second of two bills designed to provide for the creation of a forestry industry
services company to provide marketing and research and development and other
industry services to the forestry industry. The new company will replace the current
Commonwealth statutory authority, Forest and Wood Products Research and
Development Corporation (FWPRDC).
The new company will be limited by guarantee under the Corporation Act 2001, and
will assume the research and development functions currently provided by the
FWPRDC and incorporate the new functions of marketing and promotion. Under
FWPRDC's enabling legislation, the Primary Industries and Energy Research and
Development Act 1989 the FWPRDC could not undertake marketing and promotion
activities.
This bill provides for the termination of the FWPRDC and deals with matters arising
from the transition to the new industry services body under the Forestry Marketing and
Research and Development Services Bill 2007, such as the transfer of assets, liabilities
and employees from the FWPRDC, the FWPRDC's final annual reports and the transfer
of Commonwealth records.
This bill provides for consequential provisions in the PIERD Act, the Primary
Industries (Customs) Charges Act 1999, the Primary Industries (Excise) Levies Act
1999, and the Primary Industries Levies and Charges Collection Act 1991 as a result of
this bill and the first bill, the Forestry Marketing and Research and Development
Services Bill 2007.
FINANCIAL IMPACT STATEMENT
This bill provides for the transfer of assets and liabilities and current employees
associated with FWPRDC to the new industry services body.
The net value of assets (including cash balances) and liabilities to be transferred to the
new industry services body is approximately $6.4 million.
The final outcome will be determined following the financial transfer on the cessation
date of the FWPRDC.
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NOTES ON CLAUSES
Clause 1: Short title
This clause provides for the Act to be called the Forestry Marketing and Research and
Development Services (Transitional and Consequential Provisions) Act 2007.
Clause 2: Commencement
This clause provides for:
· Sections 1 to 3 of the Act to come into effect on the day on which this Act
receives Royal Assent,
· Schedule 1 of the Act to come into effect on the later of the start of the day after
this Act receives the Royal Assent or the time the Forestry Marketing and
Research and Development Services Act 2007 commences and to not commence
at all if the Forestry Marketing and Research and Development Services Act
2007 does not commence, and for
· Schedule 2 to come into effect on a single day to be fixed by Proclamation.
Clause 3: Schedule(s)
This clause provides for each Act that is specified in a Schedule to this Act to be
amended or repealed as set out in the Schedule.
Schedule 1 - Transitional provisions
Part 1 - Preliminary
Clause 1: Definitions
This clause provides for terms of the Act to be defined.
Clause 2: Extensions to external Territories
This clause provides for Schedule 1 to extend to all external Territories.
Clause 3: Extraterritorial operation
This clause provides for Schedule 1 to apply within and outside Australia.
Part 2 - Transfer of assets and liabilities of FWPRDC
Clause 4: Transfer of assets and liabilities
This clause provides for the assets and liabilities of FWPRDC to become the assets and
liabilities of the successor body (to be the declared industry services body) without any
conveyance, transfer or assignment immediately after cessation the of FWPRDC.
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Commonwealth records, as defined in the Archives Act 1983, only become the assets of
the successor body if the National Archives of Australia gives permission for their
transfer under paragraph 24(2)(b) of the Archives Act 1983. This relates to item 26 of
the bill.
Section 45 of the Primary Industries and Energy Research and Development Act 1989
(the PIERD Act) is therefore not applicable in this case because of this clause except in
the circumstances where the National Archives of Australia has not permitted
Commonwealth records to be transferred to the successor body. Therefore for any
Commonwealth records that the National Archives of Australia has not permitted to be
transferred to the successor body, they will transfer to the Commonwealth from the
FWPRDC.
Clause 5: Transfer of pending proceedings
This clause provides for the successor body to be substituted for FWPRDC as a party to
any proceedings to which FWPRDC was a party and that were pending in any court or
tribunal immediately before cessation time and that were related in whole or part to an
asset or liability of FWPRDC.
Clause 6: Exemption from stamp duty etc.
This clause provides that the transfer of an asset or liability under Section 4 do not give
rise to stamp duty or tax liability under any State or Territory law.
Clause 7: References in certain instruments
This clause provides for any instrument to which FWPRDC is a party, which favours or
refers, or which accrues any right or liability to FWPRDC at the time of its cessation to
continue to have effect after the cessation time as if any reference to FWPRDC were a
reference to the successor body.
Section 147 of the PIERD Act is therefore not applicable in this case because of this
clause.
Clause 8: Certificates in relation to assets
This clause allows for the registration of an asset that is transferred to the successor
body. It provides for the lodgement of an appropriate certificate signed by the Minister
and for an assets official to register that transfer in accordance with the certificate. The
clause may apply, for example, to registered patents and trademarks.
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Part 3 - Transferring employees
Division 1 - Preliminary
Clause 9: Transfer of staff
This clause provides that at the cessation time of FWPRDC that each employee is taken
be engaged as an employee of the successor body.
Clause 10: Terms and conditions of transferring employees
This clause provides that an employee transferring from FWPRDC to the successor
body will do so under the same terms and conditions, with equivalent accrued
entitlement to benefits and the service to be considered continuous with the service as
an employee of FWPRDC.
Clause 11: Variation of terms and conditions of employment
This clause provides for Schedule 1 to not prevent the variation of terms and conditions
of a transferring employee's employment in accordance with those terms and conditions
or under an award or other like instrument.
Division 2 - Application of the Safety, Rehabilitation and Compensation Act
Clause 12: Expressions defined in SRC Act
This clause provides for expressions defined in the Safety, Rehabilitation and
Compensation Act 1988 (the SRC Act) and that are used in Division 2 to have the same
meanings as in the SRC Act.
Clause 13: Continued application of the SRC Act
This clause provides that the SRC Act continues to apply after the cessation of
FWPRDC in relation to injuries suffered and loss of, or damage to, property incurred
prior to that time by a transferring employee.
Clause 14: Commonwealth liability to meet certain SRC Act liabilities
This clause provides for the Commonwealth to be taken to have been the employer of
the transferring employees before the cessation time for the purposes of application of
the SRC Act. Therefore the Commonwealth, not the successor body, will have various
obligations under the SRC Act relating to existing entitlements for the transferring
FWPRDC employees.
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Clause 15: SRC Act: rehabilitation provisions
This clause provides for the Commonwealth to receive co-operation from the successor
body in order for the Commonwealth to continue to fulfil its obligations arising prior to
the cessation, or transfer, day under the SRC Act. This clause also provides that the
SRC Act will apply to the successor body in some situations - as the relevant employer
- after the cessation, or transfer day.
Clause 16: Premiums under the SRC Act
This clause provides for the determination of the amount (if any) by which the premium
for FWPRDC for the transitional financial year should be reduced. This clause also
provides that if the amount of the confirmed premium is reduced as a result of a
determination, that the Secretary of the Department can direct a refund amount for a
particular financial year to be paid to the industry services body from Consolidated
Revenue Fund. Further, these directions must be gazetted.
This standing (or special) appropriation has been included in this Bill because the
possible refund amount is an indefinite amount that will only comprise a single payment
occurring in the one transitional year. The payment of this amount must be made in
accordance with a direction by the Secretary of the Department. As this direction must
be gazetted and will therefore be transparent and open to scrutiny.
A direction made under subitem (2) is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Division 3 - Provisions relating to superannuation
Clause 17: Application of Superannuation Acts
This clause states that the successor body is not an approved authority for the purposes
of the Superannuation Act 1976, the Superannuation Act 1990 and the Superannuation
Act 2005.
Clause 18: Application of the Superannuation Benefits (Supervisory Mechanisms)
Act 1990
This clause provides that the Minister (with the same meaning as in the Superannuation
Benefits (Supervisory Mechanisms) Act 1990) must not declare the successor body to
be a relevant body for the purposes of this Act.
Division 4 - Provisions relating to long service leave
Clause 19: Expressions defined in Long Service Leave Act
This clause states that expressions defined in the Long Service Leave (Commonwealth
Employees) Act 1976 and used in this Division have the same meanings as in that Act.
Clause 20: Long service leave for employees with less than 10 years service
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This clause provides for employees of the FWPRDC who were transferred to the new
body with less than 10 years service to carry over their service and entitlements for this
period of service to the industry services body. The successor body has to grant the
employee long service leave on a full salary if they continue to be employed by the
successor body until their combined service is at least 10 years. This clause also
provides for payments in case of ill-health, retirement and redundancy.
Clause 21: Payments in lieu of long service leave for employees with less than 10
years service
This clause provides for employees of the FWPRDC who were transferred to the
successor body with less than 10 years service to receive payment for long service leave
entitlements that they carry over to the successor body when they cease to be an
employee of the successor body on or after the day they reach ten years of service. This
clause also provides for payments in case of ill-health, retirement and redundancy.
Clause 22: Payments on the death of an employee
This clause provides for benefits to be paid to dependents of employees of the
FWPRDC who were transferred to the successor body, in the event of the death of the
transferred employee and for determining the amount of benefit to be paid.
Clause 23: Employee's long service leave credit for the purposes of items 18 and 19
This clause provides for the calculation of the long service leave credit of a transferred
employee, for use in clauses 18 and 19.
Clause 24: Employees with at least 10 years service
This clause provides for the benefits accrued by employees of the FWPRDC to continue
when the employee is transferred to the successor body. However, the transferred
employee is not entitled to receive payment because they have ceased to be in
Government service.
Clause 25: Division not to affect post-commencement long service leave rights
This clause provides that this Division does not affect employee's post-commencement
long service leave rights, meaning any long service leave rights the employee acquires
after the cessation time under an award or a determination or an industrial agreement,
another instrument for providing for terms and conditions of employment or a law other
than this Act.
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Part 4- Other provisions
Clause 26: Operation of Archives Act
This clause states that this Schedule does not authorise a Commonwealth record to be
transferred or otherwise dealt with except in accordance with the provisions of the
Archives Act 1983. If any Commonwealth records are to be transferred to the industry
services body (successor body), permission will be needed from the National Archives
of Australia under paragraph 24(2)(b) of the Archives Act 1983.
Clause 27: FWPRDC's final annual reports etc.
This clause provides for the preparation of reports and financial statements relating to
FWPRDC and its subsidiaries (if any) for a financial year that ended before the
cessation time or the period starting on the 1 July before the cessation time and ending
at the cessation time, auditing those reports and investigating and imposing penalties for
failure to comply with requirements relating to those reports.
Despite the repeal of the Forest and Wood Products Research and Development
Corporation Regulations 1993, Subdivision A of Division 2 of Part 3 of the
Commonwealth Authorities and Companies Act 1997 (the CAC Act), the other
provisions of that Act so far as they relate to that Subdivision and the Finance
Minister's Order (as defined in the CAC Act) apply for the purpose of this item.
Subdivision A of Division 2 of Part 3 of the CAC Act applied for this item as if
FWPRDC regulations had not been repealed, the final FWPRDC period were a financial
year and the persons who were directors (as defined in the CAC Act) of the FWPRDC
immediately before the repeal of the regulations continue to be directors of the
FWPRDC.
This item does not limit sections 8 and 9A of the Acts Interpretation Act 1901, ensuring
that obligations relating to the FWPRDC incurred before the cessation time continue
after that time, and allow investigations and legal proceedings relating to those
obligations to be undertaken after that time.
Clause 28: FWPRDC's expenditure and funding treated as industry service body's
This clause has effect for purposes of working out under section 9 of the Forestry
Marketing and Research and Development Services Act 2007 the limit on the
appropriation for matching payments for a financial year.
This clause provides for any unmatched research and development excess from
FWPRDC because the research and development expenditure that is not "50%
matched" in the last financial year of operation, to be carried over to the successor body
at the time of transfer.
If the cessation time of FWPRDC is after the start of a financial year, this clause also
provides for the amount spent by the successor body that qualify under the funding
contract as research and development activities to be included in the amount (if any)
spent by the FWPRDC in that part of the financial year. Therefore, any unmatched
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research and development excess for the successor body for that financial year will be
dependent on the amount of funds expended by FWPRDC during that financial year
before the transfer.
Clause 29: Certificates etc. taken to be authentic etc.
This clause states that a certificate or document issued under this Schedule is taken to
be authentic unless the contrary is established.
Clause 30: Delegation
This clause provides for the Minister to delegate, by writing, all or any of his or her
powers to the Secretary of the Department or an SES employee in the Department.
Clause 31: Compensation for acquisition of property
This clause provides a right to compensation if, as a result of the Act, property is
acquired from a person otherwise than on just terms.
Clause 32: Regulations
This clause provides for compensation to be paid by the Commonwealth to a person
from whom property is acquired on other than just terms as a result of the operation of
the Bill. If the Commonwealth and the person in question cannot agree on the amount of
any such compensation to be paid, the Federal Court may, on application by the person
from whom the property was acquired, determine what is a reasonable amount of
compensation for the acquisition of the property.
Schedule 2 - Consequential provisions
This clause provides for consequential amendments of various Acts to enable the
operation of this Act; Primary Industries and Energy Research and Development Act
1989, Primary Industries (Customs) Charges Act 1999, Primary Industries (Excise)
Levies Act 1999, Primary Industries Levies and Charges Collection Act 1991.
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