Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Housing Loans Insurance
Corporation (Transfer of Assets and Abolition) Bill
1996
No. ,
1996
(Treasury)
A Bill for
an Act to provide for the transfer of the assets, and the abolition, of the
Housing Loans Insurance Corporation, and for related
purposes
9602720—950/7.5.1996—(27/96)
Cat. No. 96 4495 4 ISBN 0644 442921
Contents
9602720—950/7.5.1996—(27/96)
Cat. No. 96 4495 4 ISBN 0644 442921
The Parliament of Australia enacts:
This Act may be cited as the Housing Loans Insurance Corporation
(Transfer of Assets and Abolition) Act 1996.
(1) Parts 1 to 5 commence on the day on which this Act receives the Royal
Assent.
(2) Part 6 commences on a day to be fixed
by Proclamation.
(3) The day to be fixed under subsection (2) must not be earlier than the
transfer day.
(4) If Part 6 does not commence under subsection (2) within 6 months after
the transfer day, it commences on the first day after the end of that
period.
In this Act, unless the contrary intention appears:
assets means any legal or equitable estate or interest
(whether present or future and whether vested or contingent) in real or personal
property of any description and, subject to paragraph 6(c), includes any rights,
powers, privileges and immunities (whether actual, contingent or prospective,
whether statutory or otherwise and wherever arising).
authorised person means:
(a) the Minister; or
(b) a person who is authorised by the Minister, by writing, to act under
the provision in which the expression is used.
Company means the company incorporated, or to be
incorporated, by or on behalf of the Commonwealth under the Corporations Law of
the Australian Capital Territory by the name Housing Loans Insurance Corporation
Limited.
contract of insurance means a contract of insurance under the
Housing Loans Insurance Act and includes such a contract that is of a kind known
as a cover note.
Corporation means the Housing Loans Insurance Corporation
established by the Housing Loans Insurance Act.
CSB Act means the Crimes (Superannuation Benefits) Act
1989.
DPP Act means the Director of Public Prosecutions Act
1983.
exempt matter means:
(a) the operation of section 7; or
(b) giving effect to section 7.
Housing Loans Insurance Act means the Housing Loans
Insurance Act 1965.
instrument includes a document and an oral
agreement.
Insurance Account means the account required by subsection
10(3).
liabilities means all liabilities, duties and obligations
(whether actual, contingent or prospective, and wherever arising).
Long Service Leave Act means the Long Service Leave
(Commonwealth Employees) Act 1976 as in force immediately before the
transfer day.
management agreement means:
(a) the agreement referred to in subsection 10(1); or
(b) if that agreement is varied by another agreement—that agreement
as so varied.
management period means the period in which the Company is,
under the management agreement or under any variation of that agreement, to
manage the pre-transfer contracts on behalf of the Commonwealth.
Maternity Leave Act means the Maternity Leave
(Commonwealth Employees) Act 1973.
pre-transfer contract means a contract of insurance that is
in force.
share, in relation to the Company, means a share in the
capital of the Company and includes stock.
SRC Act means the Safety, Rehabilitation and Compensation
Act 1988.
transfer day means a day fixed by the Minister by notice
published in the Gazette.
transferred employee means a person who, under section 14, is
taken to have been engaged as an employee by the Company.
This Act binds the Crown in right of the Commonwealth, of each of
the States, of the Australian Capital Territory and of the Northern
Territory.
Any shares in the Company issued to the Commonwealth or to a
nominee of the Commonwealth are taken to have been fully paid up.
The Company:
(a) is not, and does not represent, the Crown; and
(b) is not an instrumentality or agency of the Crown; and
(c) is not entitled to any immunity or privilege of the Crown;
and
(d) is not a public authority for any purpose and is taken not to have
been constituted or established for a public purpose or for a purpose of the
Commonwealth;
except so far as express provision is made by any law of the Commonwealth,
of a State or of a Territory.
(1) On the transfer day:
(a) so much of the Corporation’s capital and reserves, wherever
located, as the Minister determines in writing before that day to be necessary
to provide adequate capital for the Company vest in the Company by this
subsection and become the capital of the Company; and
(b) so much of any other money of the Corporation as the Minister
determines in writing before that day to be required for the purposes of the
Company vest in the Company by this subsection; and
(c) any rights of the Corporation under contracts of insurance to which
the Corporation was a party immediately before that day, and the ownership of
those contracts and any associated documents, vest in the Commonwealth by this
subsection; and
(d) the Corporation’s other assets, wherever located, vest in the
Company by this subsection; and
(e) if the Corporation is liable to make a payment, in respect of a period
on or after the transfer day, under a contract (including a lease) under which
rights vest in the Company under paragraph (d), the liability to make the
payment becomes a liability of the Company; and
(f) the Corporation’s other liabilities become liabilities of the
Commonwealth.
(2) The vesting of assets by this section has effect without the need for
any conveyance, transfer, assignment or other assurance but this section does
not preclude the use of any other method to transfer any of the
Corporation’s assets to the Company or to the Commonwealth.
(1) Subject to the regulations, on and after the transfer day each
instrument (including a legislative instrument other than this Act and the
Housing Loans Insurance Act) that was in force immediately before that
day:
(a) to which the Corporation was a party; or
(b) that refers to the Corporation;
continues to have effect according to its terms, but a reference in the
instrument to the Corporation is taken (except in relation to matters that
occurred before that day) to be a reference:
(c) if the instrument is a legislative instrument or a contract of
insurance—to the Commonwealth; or
(d) otherwise—to the Company.
(2) Nothing in this section limits, or is limited by, anything in section
7.
If, immediately before the transfer day, proceedings to which the
Corporation was a party (including any proceedings that relate to an instrument
to which section 8 applies) were pending in or before a court or tribunal, then,
on and after that day, the Commonwealth is substituted for the Corporation as a
party to the proceedings.
(1) The Commonwealth may enter into an agreement (the
management agreement) with the Company under which, on and after
the transfer day, the Company will, on behalf of the Commonwealth, manage all
pre-transfer contracts during a period (the management
period):
(a) that begins on the transfer day; and
(b) whose length is stated in, or is to be worked out in accordance with,
the agreement.
(2) During the management period the Company is entitled to custody of the
pre-transfer contracts and any associated documents but any person appointed by
the Minister for the purpose is entitled to access to those contracts and
associated documents while they are in the Company’s custody.
(3) The management agreement is to provide that, throughout the management
period, the Company is to keep an account (the Insurance Account)
with a bank nominated for the purpose in the agreement.
(4) The Company is entitled to access to any of the
Corporation’s records that are in the custody of the Australian Archives,
including records that are exempt records under the Archives Act 1983, if
access to the records is necessary to obtain information:
(a) that relates to the business carried on by the Corporation before the
transfer day; and
(b) is for use in the management of pre-transfer contracts.
The Commonwealth guarantees the payment of all money payable under
pre-transfer contracts to persons insured under them.
(1) There are payable into the Insurance Account from time to time
any amounts that the Minister considers necessary to enable the making of
payments that the Commonwealth is liable to make under pre-transfer contracts
during the management period.
(2) Amounts payable into the Insurance Account under subsection (1) are
payable out of the Consolidated Revenue Fund, which is appropriated
accordingly.
(1) Money is not to be paid out of the Insurance Account except in
accordance with this section.
(2) If the Commonwealth becomes liable to make a payment under a
pre-transfer contract during the management period, the amount may be paid out
of the Insurance Account.
(3) Interest from the investment of money standing to the credit of the
Insurance Account is to be paid into the Insurance Account.
(4) At the end of the management period, the Company must pay to the
Commonwealth all money standing to the credit of the Insurance
Account.
(1) A person who was an employee of the Corporation immediately
before the transfer day is taken:
(a) to cease to be an employee of the Corporation at the commencement of
that day; and
(b) to have been engaged by the Company as an employee of the Company with
effect on and from that day; and
(c) to have been so engaged on the same terms and conditions as those that
applied to the person, immediately before that day, as an employee of the
Corporation; and
(d) to have accrued an entitlement to benefits, in connection with that
engagement by the Company, that is equivalent to the entitlement that the person
had accrued, as an employee of the Corporation, immediately before that
day.
(2) The service of a transferred employee as an employee of the
Company is taken for all purposes to have been continuous with the service of
the employee, immediately before the transfer day, as an employee of the
Corporation.
(3) A transferred employee is not entitled to receive any payment or other
benefit merely because he or she ceased to be an employee of the Corporation as
a result of this section.
(4) An auditor of the Corporation does not, because of the operation of
this Act, become an auditor of the Company.
(1) Section 14 does not prevent the terms and conditions of a
transferred employee’s employment on or after the transfer day from being
varied:
(a) in accordance with those terms and conditions; or
(b) by or under a law, award, determination or agreement.
(2) In this section:
vary, in relation to terms and conditions,
includes:
(a) omitting any of those terms and conditions; or
(b) adding to those terms and conditions; or
(c) substituting new terms or conditions for any of those terms and
conditions.
(1) Unless the contrary intention appears, expressions used in this
Division that are also used in the Long Service Leave Act have the same meanings
as in that Act.
(2) In this Division:
combined service period, in relation to an employee, means
the total of:
(a) the period that was, immediately before the transfer day, the
employee’s period of service for the purposes of the Long Service Leave
Act; and
(b) the period starting on the transfer day during which the employee
continues to be an employee of the Company.
employee includes a person employed in a full-time or a
part-time capacity.
future long service leave rights, in relation to an employee,
means any long service leave rights an employee acquires under an award,
determination, industrial agreement or law (other than this Act) on or after the
transfer day in relation to service on or after that day.
law means:
(a) a law of the Commonwealth, of a State or of a Territory; or
(b) regulations or any other instrument (other than an award,
determination or industrial agreement) made under such a law.
Note: This section provides that, in certain circumstances,
the Company may grant long service leave to an employee whose period of service
for the purposes of the Long Service Leave Act was less than 10
years.
(1) This section applies in relation to a person who was an
employee of the Corporation immediately before the transfer day if, at that
time, the employee’s period of service for the purposes of the Long
Service Leave Act was less than 10 years.
(2) This section does not apply in relation to an employee who dies while
in the employment of the Company. Section 19 covers such employees.
(3) If the employee continues to be employed by the Company on and
after the transfer day until his or her combined service period is at least 10
years, the Company may grant the employee long service leave on full salary for
a period up to the employee’s long service leave credit under subsection
20(1).
(4) If:
(a) the employee stops being an employee of the Company, on or after
reaching the minimum retirement age, or because of retrenchment; and
(b) the employee’s combined service period at the time when he or
she stops being an employee of the Company is at least one year;
the Company may grant the employee long service leave on full salary for a
period of up to the employee’s long service leave credit under subsection
20(1).
(5) If a period of long service leave may be granted to an employee under
subsection (3) or (4), the Company may, if the employee asks in writing, grant
the employee long service leave on half salary for a period that is not more
than twice the first-mentioned period.
(6) Long service leave granted in the circumstances set out in subsection
(4) is to be taken so as to end immediately before the employee stops being an
employee.
(7) For the purposes of this section, the rate of salary to be used in
working out the full salary of an employee is the rate that would be applicable
to the employee under section 20 of the Long Service Leave Act if:
(a) that section applied to the employee; and
(b) for the expression “section 16 or 17” in that section
there were substituted the expression “section 17 of the Housing Loans
Insurance Corporation (Transfer of Assets and Abolition) Act
1996”.
Note: This section provides that, in certain
circumstances, the Company must pay an amount in respect of long service leave
to an employee who has not used all of his or her long service leave credit by
taking long service leave under section 17.
(1) This section applies in relation to a person who was an employee of
the Corporation immediately before the transfer day, if, at that time, the
employee’s period of service for the purposes of the Long Service Leave
Act was less than 10 years.
(2) This section does not apply in relation to an employee who dies while
in the employment of the Company. Section 19 covers such employees.
(3) Subject to subsection (6), if the employee stops being an employee of
the Company on or after the day on which his or her combined service period
reaches 10 years, the Company must pay him or her an amount equal to full salary
in respect of his or her long service leave credit under subsection
20(2).
(4) Subject to subsection (6), if:
(a) the employee stops being an employee of the Company, on or after
reaching the minimum retiring age, or because of retrenchment; and
(b) at that time the employee’s combined service period is at least
one year;
the Company must pay him or her an amount equal to full salary in respect
of his or her long service leave credit under subsection 20(2).
(5) Subject to subsection (6), if:
(a) the employee stops being an employee of the Company; and
(b) the Company is satisfied that the employee left the Company because of
ill-health that justified his or her so leaving; and
(c) when the employee left, his or her combined service period was at
least one year;
the Company must pay him or her an amount equal to full salary in respect
of his or her long service leave credit under subsection 20(2).
(6) An employee may, by written notice given to the Company before the
employee stops being an employee of the Company:
(a) request the Company not to make a payment to the employee under this
section; or
(b) request the Company to make a payment under subsection (3), (4) or (5)
of a stated amount that is less than the amount that would otherwise be payable
under that subsection.
(7) The Company must comply with a request made under subsection
(6).
(8) For the purposes of this section, the rate of salary to be used in
working out the full salary of an employee is the rate that would be applicable
to the employee under section 21 of the Long Service Leave Act if:
(a) that section applied to the employee; and
(b) for the expression “sections 16 and 17” in that section
there were substituted the expression “section 18 of the Housing Loans
Insurance Corporation (Transfer of Assets and Abolition) Act
1996”.
Note: This section applies in relation to a person who was
an employee of the Corporation immediately before the transfer day if, at that
time, the employee’s period of service for the purposes of the Long
Service Leave Act was less than 10 years.
(1) If, on or after the transfer day, the employee dies and immediately
before his or her death:
(a) the employee was an employee of the Company; and
(b) the employee’s combined service period was at least one year;
and
(c) the employee had one or more dependants;
the Company must make a payment to a dependant or to 2 or more dependants
of the employee.
(2) The total amount of the payment or payments is the amount that would
have been payable to the employee under section 18 if, on the day of his or her
death, the employee had stopped being an employee of the Company on or after
reaching the minimum retiring age.
(3) If subsection (1) applies, section 23 of the Long Service Leave Act
has effect as if:
(a) that section applied to an employee of the Company; and
(b) a reference in that section to the approving authority were a
reference to the Company; and
(c) for the expression “this Act” in that section there were
substituted the expression “section 19 of the Housing Loans Insurance
Corporation (Transfer of Assets and Abolition) Act 1996”;
and
(d) for the expression “subsection 16(7) or 17(5)” in that
section there were substituted the expression “section 19 of the
Housing Loans Insurance Corporation (Transfer of Assets and Abolition) Act
1996”.
(1) For the purposes of section 17, an employee’s long
service leave credit is equal to the long service leave credit that the employee
would have under the Long Service Leave Act for the period:
(a) starting when the employee started his or her period of service;
and
(b) ending on the transfer day;
if the employee had been retrenched on the transfer day.
(2) For the purposes of section 18, an employee’s long service leave
credit is the employee’s long service leave credit worked out under
subsection (1) of this section reduced by any long service leave credit used
under section 17.
To avoid doubt it is declared that this Division does not affect
an employee’s future long service leave rights.
(1) This section applies to a person who, immediately before the
transfer day, was an employee of the Corporation whose period of service under
the Long Service Leave Act was at least 10 years.
(2) Even though the employee ceases to be employed in Government Service
for the purposes of the Long Service Leave Act, the employee’s accrued
rights under that Act continue if the employee becomes an employee of the
Company on the transfer day. However, the employee is not entitled to receive
any payment because he or she ceases to be in Government Service.
(3) The Long Service Leave Act has effect on and after the transfer day in
relation to the employee as if the Company were an approving authority for the
purposes of that Act.
Unless the contrary intention appears, expressions used in this
Division that are also used in the SRC Act have the same meanings as in that
Act.
(1) This section applies to an employee of the Company who was an
employee of the Corporation immediately before the transfer day.
(2) The SRC Act continues to apply, on and after the transfer day, in
relation to:
(a) injuries suffered by the employee before the transfer day;
and
(b) loss of, or damage to, property incurred by the employee before the
transfer day.
On and after the transfer day, the Company:
(a) is liable to pay the liabilities of the Corporation that existed
immediately before that day under section 128A of the SRC Act as if it were a
prescribed Commonwealth authority for the purposes of that section;
and
(b) is taken to have been the employer of the employees of the Corporation
before the transfer day for the purposes of the SRC Act.
Unless the contrary intention appears, expressions used in this
Division that are also used in the Maternity Leave Act have the same meanings as
in that Act.
(1) This section applies if:
(a) a woman who was an employee of the Corporation immediately before the
transfer day becomes an employee of the Company under section 14; and
(b) within 12 months after the transfer day, the woman would have been
entitled to begin leave granted under the Maternity Leave Act if this Act had
not been enacted and the woman had continued to be employed by the
Corporation.
(2) On and after the transfer day, the Maternity Leave Act continues to
apply to the woman in relation to the confinement in respect of which she would
have been entitled to leave as if the Company were a prescribed authority for
the purposes of that Act.
(1) This section applies if:
(a) immediately before the transfer day, a woman was an employee of the
Corporation and was on leave granted under the Maternity Leave Act;
and
(b) the woman becomes an employee of the Company under section 14;
and
(c) the woman would have been entitled to remain on that leave, on and
after the transfer day, if this Act had not been enacted and the woman had
continued to be employed by the Corporation.
(2) On and after the transfer day, the Maternity Leave Act continues to
apply to the woman in relation to the confinement in respect of which the leave
was granted as if the Company were a prescribed authority for the purposes of
that Act.
(1) Subject to this section, if:
(a) a person who was an employee of the Corporation before the transfer
day committed a corruption offence while such an employee; and
(b) the person becomes an employee of the Company on that day under
section 14;
then, on and after that day, the CSB Act continues to apply in relation to
the person in respect of the offence as if the Company were a Commonwealth
authority.
(2) A superannuation order may not be made under the CSB Act in relation
to employer contributions or benefits paid or payable to a superannuation scheme
by the Company on or after the transfer day.
(3) In spite of paragraph 19(3)(d) of the CSB Act, the only order that may
be made under that paragraph is an order that an amount be paid to the
Commonwealth.
(4) If:
(a) a person who was an employee of the Corporation immediately before the
transfer day committed a corruption offence while such an employee;
and
(b) the person was paid benefits before, on or after that day under any
superannuation scheme;
then, in spite of paragraph 19(4)(b) of the CSB Act, the only order that
may be made under that paragraph is an order that an amount be paid to the
Commonwealth.
(5) A superannuation scheme in relation to which employer contributions or
benefits are paid or payable by the Company is not a superannuation scheme for
the purposes of the CSB Act in respect of a corruption offence committed by a
person on or after the transfer day.
(6) Unless the contrary intention appears, expressions used in this
section that are also used in the CSB Act have the same meanings as in that
Act.
The DPP Act continues to apply on and after the transfer day to
and in relation to:
(a) acts or omissions in connection with the Corporation that occurred
before that day; and
(b) the taking of civil remedies connected with or arising out of a
prosecution that relates to acts or omissions referred to in paragraph
(a).
(1) If Division 2 or 3 of Part IV of the Public Service Act
1922 applied to an employee of the Corporation immediately before the
transfer day, then that Division ceases to apply to the employee on that
day.
(2) If Division 4 of Part IV of the Public Service Act 1922 applied
to an employee of the Corporation immediately before the transfer day,
then:
(a) the Officers’ Rights Declaration Act 1928; and
(b) Division 4 of Part IV of the Public Service Act 1922:
cease to apply to the employee on the transfer day.
(1) No tax is payable under a law of the Commonwealth, of a State
or of a Territory in respect of:
(a) an exempt matter; or
(b) anything done (including a transaction entered into or an instrument
made, executed, lodged or given) because of, or for a purpose connected with or
arising out of, an exempt matter.
(2) An authorised person may, in writing, certify that:
(a) a particular matter or thing is an exempt matter; or
(b) a particular thing was done (including a transaction entered into or
an instrument made, executed, lodged or given) because of, or for a purpose
connected with or arising out of, a particular exempt matter.
(3) For all purposes and in all proceedings, a certificate under
subsection (2) is conclusive evidence of the matter certified, except to the
extent (if any) to which the contrary is proved.
(4) Unless the contrary is proved, a document purporting to be a
certificate under subsection (2) is to be taken to be such a certificate and to
have been duly given.
(1) If:
(a) an asset vests in the Company or the Commonwealth because of section
7; and
(b) a person or authority has power, under a law of the Commonwealth, of a
State or of a Territory, to register, record or otherwise give effect
to:
(i) transactions affecting that kind of asset; or
(ii) documents relating to such transactions;
the person or authority may do whatever is necessary or desirable to give
effect to, or reflect, the vesting (for example, making entries in a
register).
(2) Without limiting the generality of subsection (1),
if:
(a) under section 7, land that is situated in a State or Territory, or an
interest in such land, vests in the Company; and
(b) there is lodged with the Registrar of Titles or other proper officer
of the State or Territory in which the land is situated a certificate
that:
(i) is signed by an authorised person; and
(ii) identifies the land or interest, whether by reference to a map or
otherwise; and
(iii) states that the land or interest is, under section 7, vested in the
Company;
the officer with whom the certificate is lodged may:
(c) register the matter in the same way as dealings in land or interests
in land of that kind are registered; and
(d) deal with, and give effect to, the certificate.
(1) If, apart from this section, the operation of this Act would
result in the acquisition of property from a person otherwise than on just
terms, the Commonwealth must pay to the person, out of moneys appropriated by
the Parliament for the purpose, any reasonable amount of compensation that is
agreed to between the Commonwealth and the person or, in the absence of
agreement, is determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in
proceedings begun otherwise than under this section, must be taken into account
in assessing compensation payable in proceedings begun under this section that
arise out of the same event or transaction.
(3) In this section:
acquisition of property and just terms have the
same meanings as in paragraph 51(xxxi) of the Constitution.
person does not include the Corporation.
(1) This section applies when, under the Corporations Law of the
Australian Capital Territory, the Company sends to:
(a) the Commonwealth as the holder of shares in the Company; or
(b) a person who holds shares in the Company as nominee for the
Commonwealth;
copies of the documents required by that Law to be laid before a particular
annual general meeting of the Company.
(2) The Minister must, as soon as practicable, cause to be laid before
each House of the Parliament copies of the documents referred to in subsection
(1) (whether made from the copies first referred to in that subsection or
otherwise).
On the transfer day, the Schedule to the Commonwealth Borrowing
Levy Act 1987 is amended by omitting item 16 and substituting the following
item:
16. Housing Loans Insurance Corporation Limited
The Minister may, by signed writing, delegate to an officer of the
Department all or any of his or her powers under this Act.
The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
The following Acts are repealed:
Housing Loans Insurance Act 1965
Housing Loans Insurance Corporation (Sale of Assets and Abolition) Act
1990.
(1) Despite the repeal of the Housing Loans Insurance Act, that Act
continues in force, and the Corporation continues in existence, solely for the
purpose of enabling the Corporation to comply with any of its outstanding
obligations under section 39 of that Act in respect of any period before the
repeal.
(2) If this Part commences within 4 months after 30 June in a year,
section 39 of the Housing Loans Insurance Act, as it continues in force by
subsection (1) of this section, has effect as if the period of 12 months ending
on that 30 June and the period from that 30 June to the commencement of this
Part together constituted a year in respect of which the Corporation was
required to prepare and furnish a report and financial statements.
Despite the repeal of the Housing Loans Insurance Act, all courts,
judges and people acting judicially must take judicial notice of the imprint of
the Corporation’s common seal appearing on a document and must presume
that the seal was duly affixed.