2008-2009 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 (Innovation, Industry, Science and Research) A Bill for an Act to deal with transitional matters in connection with the enactment of the Australian Astronomical Observatory Act 2009, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Repeal of the Anglo-Australian Telescope Agreement Act 1970 3 Anglo-Australian Telescope Agreement Act 1970 3 Schedule 2--Transitional provisions 4 Part 1--Introduction 4 Part 2--Transfer of assets and liabilities 5 Part 3--Transfer of other matters 7 Part 4--Finance and annual report 10 Part 5--Employees of the Board 12 Part 6--Miscellaneous 16 i Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] 2 connection with the enactment of the Australian 3 Astronomical Observatory Act 2009, and for other 4 purposes 5 The Parliament of Australia enacts: 6 1 Short title 7 This Act may be cited as the Australian Astronomical Observatory 8 (Transitional Provisions) Act 2009. 9 2 Commencement 10 (1) Each provision of this Act specified in column 1 of the table 11 commences, or is taken to have commenced, in accordance with 12 column 2 of the table. Any other statement in column 2 has effect 13 according to its terms. Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 1 [Page Break] Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day this Act receives the Royal Assent. and anything in this Act not elsewhere covered by this table 2. Schedules 1 At the same time as the Australian 1 July 2010 and 2 Astronomical Observatory Act 2009 commences. 2 Note: This table relates only to the provisions of this Act as originally 3 passed by both Houses of the Parliament and assented to. It will not be 4 expanded to deal with provisions inserted in this Act after assent. 5 (2) Column 3 of the table contains additional information that is not 6 part of this Act. Information in this column may be added to or 7 edited in any published version of this Act. 8 3 Schedule(s) 9 Each Act that is specified in a Schedule to this Act is amended or 10 repealed as set out in the applicable items in the Schedule 11 concerned, and any other item in a Schedule to this Act has effect 12 according to its terms. 13 2 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] 1 Schedule 1--Repeal of the Anglo-Australian 2 Telescope Agreement Act 1970 3 4 Anglo-Australian Telescope Agreement Act 1970 5 1 The whole of the Act 6 Repeal the Act. 7 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 3 [Page Break] Part 1 Introduction 1 Schedule 2--Transitional provisions 2 Part 1--Introduction 3 1 Definitions 4 In this Schedule: 5 asset means: 6 (a) any legal or equitable estate or interest in real or personal 7 property, whether actual, contingent or prospective; and 8 (b) any right, power, privilege or immunity, whether actual, 9 contingent or prospective; 10 but does not include a right, power, privilege or immunity conferred by 11 an Act or by regulations or other subordinate legislation made under an 12 Act. 13 assets official, in relation to an asset other than land, means the person 14 or authority who, under: 15 (a) a law of the Commonwealth, a State or a Territory; or 16 (b) a trust instrument; or 17 (c) otherwise; 18 has responsibility for keeping a register in relation to assets of the kind 19 concerned. 20 Board means the Anglo-Australian Telescope Board that was 21 established by the Anglo-Australian Telescope Agreement Act 1970. 22 land means any legal or equitable estate or interest in real property, 23 whether actual, contingent or prospective. 24 land registration official, in relation to land, means the Registrar of 25 Titles or other proper officer of the State or Territory in which the land 26 is situated. 27 liability means any liability, duty or obligation, whether actual, 28 contingent or prospective, but does not include a liability, duty or 29 obligation imposed by an Act or by regulations or other subordinate 30 legislation made under an Act. 31 responsible financial officer means a person appointed under item 15. 32 Secretary means the Secretary of the Department. 33 transition time means the commencement of this Schedule. 34 4 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Transfer of assets and liabilities Part 2 1 Part 2--Transfer of assets and liabilities 2 2 Vesting of assets of Board 3 (1) This item applies to the assets of the Board immediately before the 4 transition time. 5 (2) At the transition time, the assets cease to be assets of the Board and 6 become assets of the Commonwealth without any conveyance, transfer 7 or assignment. The Commonwealth becomes the successor in law in 8 relation to the assets. 9 3 Vesting of liabilities of Board 10 (1) This item applies to the liabilities of the Board immediately before the 11 transition time. 12 (2) At the transition time, the liabilities cease to be liabilities of the Board 13 and become liabilities of the Commonwealth without any conveyance, 14 transfer or assignment. The Commonwealth becomes the successor in 15 law in relation to the liabilities. 16 4 Transfers of land may be registered 17 (1) This item applies if: 18 (a) any land vests in the Commonwealth under this Part; and 19 (b) there is lodged with a land registration official a certificate 20 that: 21 (i) is signed by the Minister; and 22 (ii) identifies the land, whether by reference to a map or 23 otherwise; and 24 (iii) states that the land has become vested in the 25 Commonwealth under this Part. 26 (2) The land registration official may: 27 (a) register the matter in a way that is the same as, or similar to, 28 the way in which dealings in land of that kind are registered; 29 and 30 (b) deal with, and give effect to, the certificate. 31 (3) A certificate under paragraph (1)(b) is not a legislative instrument. 32 5 Certificates relating to vesting of assets other than land Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 5 [Page Break] Part 2 Transfer of assets and liabilities 1 (1) This item applies if: 2 (a) any asset other than land vests in the Commonwealth under 3 this Part; and 4 (b) there is lodged with an assets official a certificate that: 5 (i) is signed by the Minister; and 6 (ii) identifies the asset; and 7 (iii) states that the asset has become vested in the 8 Commonwealth under this Part. 9 (2) The assets official may: 10 (a) deal with, and give effect to, the certificate as if it were a 11 proper and appropriate instrument for transactions in relation 12 to assets of that kind; and 13 (b) make such entries in the register as are necessary having 14 regard to the effect of this Part. 15 (3) A certificate under paragraph (1)(b) is not a legislative instrument. 16 6 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Transfer of other matters Part 3 1 Part 3--Transfer of other matters 2 6 Transitional--acts of the Board to be attributed to the 3 Commonwealth 4 (1) This item applies to anything done by, or in relation to, the Board 5 before the transition time. 6 (2) After the transition time, the thing has effect as if it had been done by, 7 or in relation to, the Commonwealth. 8 7 Substitution of Commonwealth as a party to certain 9 pending proceedings 10 (1) This item applies if any proceedings to which the Board was a party 11 were pending in any court or tribunal immediately before the transition 12 time. 13 (2) The Commonwealth is substituted for the Board, from the transition 14 time, as a party to the proceedings. 15 8 Transitional--transfer of records to the Department 16 (1) This item applies to any records or documents that were in possession 17 of the Board immediately before the transition time. 18 (2) The records and documents are to be transferred to the Department after 19 the transition time. 20 9 Transitional--transfer of Ombudsman investigations 21 If: 22 (a) before the transition time, a complaint was made to the 23 Ombudsman, or the Ombudsman began an investigation, 24 under the Ombudsman Act 1976 in relation to an action taken 25 by the Board; and 26 (b) immediately before transition time, the Ombudsman had not 27 finally disposed of the matter in accordance with the 28 Ombudsman Act 1976; 29 the Ombudsman Act 1976 applies after the transition time as if that 30 action had been taken by the Department. 31 10 References in certain instruments to the Board Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 7 [Page Break] Part 3 Transfer of other matters 1 (1) If: 2 (a) an instrument was in force immediately before the transition 3 time; and 4 (b) the instrument is an instrument covered by one or more of the 5 following subparagraphs: 6 (i) an instrument that was made by the Board; 7 (ii) an instrument to which the Board was a party; 8 (iii) an instrument that was given to, or in favour of, the 9 Board; 10 (iv) an instrument under which any right or liability accrues 11 or may accrue to the Board; 12 (v) any other instrument in which a reference is made to the 13 Board; 14 the reference has effect after the transition time as if it were a reference 15 to the Commonwealth. 16 (2) In this item: 17 instrument: 18 (a) includes: 19 (i) a contract, deed, undertaking or agreement; and 20 (ii) a notice, authority, order or instruction; and 21 (iii) an instrument made under an Act or under regulations; 22 but 23 (b) does not include an exempt instrument. 24 exempt instrument means: 25 (a) an Act; or 26 (b) an instrument made under this Act; or 27 (c) the Long Service Leave (Commonwealth Employees) 28 Regulations 1957; or 29 (d) the Freedom of Information (Miscellaneous Provisions) 30 Regulations 1982; or 31 (e) the Superannuation Benefit (Interim Arrangement) (Qualified 32 Employees) Regulations; or 33 (f) the Superannuation (CSS) Approved Authority Declaration 34 1995; or 35 (g) the Superannuation (CSS) Transfer Arrangements 36 Regulations. 8 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Transfer of other matters Part 3 1 11 Transfer of appropriated money 2 (1) For the purposes of the operation of an Appropriation Act after the 3 transition time, references to the Board are to be read as references to 4 the Department. 5 (2) In this item: 6 Appropriation Act means an Act appropriating money for expenditure 7 out of the Consolidated Revenue Fund. 8 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 9 [Page Break] Part 4 Finance and annual report 1 Part 4--Finance and annual report 2 12 Audit 3 (1) Despite the repeal of section 14 of the Anglo-Australian Telescope 4 Agreement Act 1970, that section continues to apply, in relation to an 5 inspection and audit carried out in respect of a financial year that began 6 on or before 1 July 2009, as if that section had not been repealed. 7 (2) Subitem (1) has effect subject to the following subitems. 8 (3) A reference in that section to records of the Board includes a reference 9 to records transferred to the Department under item 8 of this Schedule. 10 (4) A reference in that section to an employee of the Board includes a 11 reference to an APS employee in the Department. 12 13 Final financial statements 13 (1) Despite the repeal of section 19 of the Anglo-Australian Telescope 14 Agreement Act 1970, that section continues to apply, in relation to 15 financial statements for the financial year that began on 1 July 2009, as 16 if that section had not been repealed. 17 (2) However, the obligation to prepare and provide those financial 18 statements is imposed on the responsible financial officer instead of the 19 Board. 20 14 Final annual report 21 (1) The responsible financial officer must, as soon as practicable after the 22 end of the financial year that began on 1 July 2009, prepare and give to 23 the Minister, for presentation to the Parliament, a report on the 24 operations of the Board during that year. 25 (2) The report under subitem (1) is taken to be a periodic report for the 26 purposes of section 34C of the Acts Interpretation Act 1901. 27 15 Responsible financial officer 28 (1) The Secretary may, by writing, appoint a person as the responsible 29 financial officer for the purposes of this Schedule. 30 (2) The Secretary must not appoint a person under subsection (1) unless the 31 person: 10 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Finance and annual report Part 4 1 (a) is an SES employee or acting SES employee; or 2 (b) holds, or is acting in, an Executive Level 1 or 2 position or an 3 equivalent position. 4 Note: SES employee is defined in section 17AA of the Acts Interpretation Act 1901. 5 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 11 [Page Break] Part 5 Employees of the Board 1 Part 5--Employees of the Board 2 16 Terms and conditions of employment 3 Transferring employees 4 (1) For the purposes of this item, a person is a transferring employee if: 5 (a) the person was employed by the Board immediately before 6 the transition time; and 7 (b) the person is covered by a determination that: 8 (i) is made under section 72 of the Public Service Act 1999; 9 and 10 (ii) causes the person, at the transition time, to become an 11 APS employee (other than an SES employee) in the 12 Department. 13 (2) If: 14 (a) a person is a transferring employee; and 15 (b) immediately before the transition time, the person's 16 employment by the Board was covered by a designated 17 agreement; 18 then: 19 (c) the designated agreement covers the Commonwealth and the 20 transferring employee in relation to AAO work; and 21 (d) while the designated agreement covers the Commonwealth 22 and the transferring employee in relation to AAO work, no 23 other enterprise agreement, modern award or award-based 24 transitional instrument covers the transferring employee in 25 relation to AAO work; and 26 (e) the designated agreement has effect after the transition time, 27 in relation to the transferring employee's AAO work, as if it 28 had been made with the Secretary on behalf of the 29 Commonwealth; and 30 (f) if the transferring employee becomes an SES employee after 31 the transition time--paragraphs (c), (d) and (e) cease to apply 32 in relation to the transferring employee. 33 New employees 34 (3) For the purposes of this item, a person is a new employee if: 12 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Employees of the Board Part 5 1 (a) the person is an APS employee (other than an SES employee) 2 in the Department; and 3 (b) the person performs AAO work; and 4 (c) the person is not a transferring employee. 5 (4) If: 6 (a) a designated agreement covers the Commonwealth because 7 of subitem (2); and 8 (b) after the transition time, a person becomes a new employee; 9 then: 10 (c) the designated agreement covers the Commonwealth and the 11 new employee in relation to AAO work; and 12 (d) while the designated agreement covers the Commonwealth 13 and the new employee in relation to AAO work, no other 14 enterprise agreement, modern award or award-based 15 transitional instrument covers the new employee in relation 16 to AAO work. 17 Definitions 18 (5) In this item: 19 AAO work, in relation to an employee, means work performed after the 20 transition time by the employee within the Australian Astronomical 21 Observatory. 22 award-based transitional instrument has the same meaning as in 23 Schedule 2 to the Fair Work (Transitional Provisions and 24 Consequential Amendments) Act 2009. 25 designated agreement means: 26 (a) the AATB Enterprise Agreement 2007-2010; or 27 (b) an enterprise agreement. 28 enterprise agreement has the same meaning as in the Fair Work Act 29 2009. 30 modern award has the same meaning as in the Fair Work Act 2009. 31 17 Accrued entitlements 32 (1) This item applies to a person if: 33 (a) the person was employed by the Board immediately before 34 the transition time; and Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 13 [Page Break] Part 5 Employees of the Board 1 (b) the person is covered by a determination that: 2 (i) is made under section 72 of the Public Service Act 1999; 3 and 4 (ii) causes the person, at the transition time, to become an 5 APS employee in the Department. 6 (2) The person is taken to have accrued an entitlement to benefits, in 7 connection with the person's employment as an APS employee, that is 8 equivalent to the entitlement that the person had as an employee of the 9 Board immediately before the transition time. 10 (3) The service of the person as an employee of the Board is taken, for all 11 purposes, to have been continuous with his or her service as an APS 12 employee. 13 18 Long service leave 14 (1) This item applies to a person if: 15 (a) the person was employed by the Board immediately before 16 the transition time; and 17 (b) the person is covered by a determination that: 18 (i) is made under section 72 of the Public Service Act 1999; 19 and 20 (ii) causes the person, at the transition time, to become an 21 APS employee in the Department. 22 (2) The Long Service Leave (Commonwealth Employees) Act 1976 has 23 effect, in relation to the person, as if a period during which the person 24 was employed by the Board were a period during which the person was 25 employed in Government Service. 26 19 Safety, Rehabilitation and Compensation Act 1988-- 27 rehabilitation provisions 28 (1) This item applies if, before the transition time, an employee of the 29 Board suffered an injury resulting in an incapacity for work or an 30 impairment. 31 (2) Sections 36, 37, 38, 39, 41 and 41A of the Safety, Rehabilitation and 32 Compensation Act 1988 apply after the transition time, in relation to the 33 injury, as if the employee were employed by the Department. 14 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Employees of the Board Part 5 1 Note: The main effect of subitem (2) is that sections 36, 37, 38, 39, 41 and 41A of the Safety, 2 Rehabilitation and Compensation Act 1988 apply in relation to the employee's injury as 3 if the Secretary of the Department were the rehabilitation authority. 4 (3) After the transition time, the Department is, for the purposes of 5 section 40 of the Safety, Rehabilitation and Compensation Act 1988, 6 taken to be the relevant employer of the employee. 7 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 15 [Page Break] Part 6 Miscellaneous 1 Part 6--Miscellaneous 2 20 Exemption from stamp duty and other State or Territory 3 taxes 4 (1) No stamp duty or other tax is payable under a law of a State or a 5 Territory in respect of an exempt matter, or anything connected with an 6 exempt matter. 7 (2) For the purposes of this item, an exempt matter is: 8 (a) the vesting of an asset or liability under this Schedule; or 9 (b) the operation of this Schedule in any other respect. 10 (3) The Minister may certify in writing: 11 (a) that a specified matter is an exempt matter; or 12 (b) that a specified thing was connected with a specified exempt 13 matter. 14 (4) In all courts, and for all purposes (other than for the purposes of 15 criminal proceedings), a certificate under subitem (3) is prima facie 16 evidence of the matters stated in the certificate. 17 21 Constitutional safety net 18 (1) If the operation of this Schedule would result in an acquisition of 19 property from a person otherwise than on just terms, the 20 Commonwealth is liable to pay a reasonable amount of compensation to 21 the person. 22 (2) If the Commonwealth and the person do not agree on the amount of the 23 compensation, the person may institute proceedings in a court of 24 competent jurisdiction for the recovery from the Commonwealth of 25 such reasonable amount of compensation as the court determines. 26 (3) In this item: 27 acquisition of property has the same meaning as in paragraph 51(xxxi) 28 of the Constitution. 29 just terms has the same meaning as in paragraph 51(xxxi) of the 30 Constitution. 31 22 Certificates taken to be authentic 16 Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 [Page Break] Miscellaneous Part 6 1 A document that appears to be a certificate made or issued under a 2 particular provision of this Schedule: 3 (a) is taken to be such a certificate; and 4 (b) is taken to have been properly given; 5 unless the contrary is established. 6 23 Delegation by Minister 7 (1) The Minister may, by writing, delegate all or any of his or her powers 8 and functions under this Schedule to a person. 9 (2) The delegate must be: 10 (a) the Secretary; or 11 (b) an SES employee, or acting SES employee, in the 12 Department. 13 Note: SES employee is defined in section 17AA of the Acts Interpretation Act 1901. 14 (3) In exercising powers or functions under a delegation, the delegate must 15 comply with any directions of the Minister. 16 24 Transitional--regulations 17 The Governor-General may make regulations in relation to transitional 18 matters arising out of the repeal of the Anglo-Australian Telescope 19 Agreement Act 1970. Australian Astronomical Observatory (Transitional Provisions) Bill 2009 No. , 2009 17