Commonwealth of Australia Explanatory Memoranda

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AUSTRALIA-JAPAN FOUNDATION (REPEAL AND TRANSITIONAL PROVISIONS) BILL 2006

                           2004-2005-2006

  THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

                  HOUSE OF REPRESENTATIVES




AUSTRALIA­JAPAN FOUNDATION (REPEAL AND TRANSITIONAL
                PROVISIONS) BILL 2006


                EXPLANATORY MEMORANDUM




      (Circulated by authority of the Minister for Foreign Affairs,
                the Honourable Alexander Downer MP)

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   AUSTRALIA­JAPAN FOUNDATION (REPEAL AND TRANSITIONAL
                    PROVISIONS BILL 2006

                                     OUTLINE

The purpose of the Australia­Japan Foundation (Repeal and Transitional Provisions)
Bill 2006 (referred to in this Explanatory Memorandum as the "Bill") is to abolish the
Australia-Japan Foundation (the "Foundation") as a statutory authority through the
repeal of its enabling legislation, the Australia-Japan Foundation Act 1976.

The intention is to re-establish the Foundation as a non-statutory body within the
Department of Foreign Affairs and Trade (the "Department"), on the same footing as
other bilateral bodies established within the Department to undertake similar
functions.

It is not anticipated that repeal of the Foundation's enabling legislation will change
the functions or objectives of the Australia-Japan Foundation, which are expected to
be governed by Orders in Council. The Foundation will continue its role in
strengthening people-to-people links between Australia and Japan through its cultural,
educational and other programs. The Bill includes transitional arrangements that will
ensure the governance changes do not disrupt the Foundation's program delivery.

The changes to the Foundation's governance structure are part of the Government's
response to Mr John Uhrig's Review of the Corporate Governance of Statutory
Authorities and Office Holders, which examined and reported on improving the
governance arrangements of such entities.

It is anticipated the changes will improve the governance and accountability
arrangements of the Australia-Japan Foundation.

                      FINANCIAL IMPACT STATEMENT

The Bill will have no financial impact.

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                                ABBREVIATIONS

The following abbreviations are used in this explanatory memorandum:

Act, unless the context indicates otherwise, means the Australia-Japan Foundation
Act 1976;

Foundation, means the Australia-Japan Foundation as set out in section 4 of the Act;

Department, means the Department of Foreign Affairs and Trade;

Uhrig Review means the Review of Corporate Governance of Statutory Authorities
and Office Holders as released by Mr John Uhrig AC.

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                                NOTES ON CLAUSES


Clause 1Short title

Clause 1 is a formal provision specifying the short title.

Clause 2Commencement

Clause 2(1) of the Bill provides that each provision of the Bill specified in column 1
of the table commences, or is taken to have commenced, in accordance with column 2
of the table. Any other statement in column 2 is taken to have effect according to its
terms.

Item 1 of the table provides that sections 1 to 3 and anything in the Act not elsewhere
covered by the table commence on the day on which the Act receives Royal Assent.

Item 2 of the table provides that Schedule 1 of the Bill commence on a single day to
be fixed by Proclamation (the reference to a "single day" means that all of the
provisions must be Proclaimed to commence at the same time). However, if any of
the provisions do not commence within the period of 6 months beginning on the day
on which the Act receives the Royal Assent, they commence on the first day after the
end of that period.

Clause 3Schedule(s)

Clause 3 provides that each Act that is specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to this Act has effect according to its terms.

Schedule 1, Part 1 relates to the repeal of the Australia-Japan Foundation Act 1976.

Schedule 1, Part 2 outlines the transitional provisions once the Australia-Japan
Foundation Act 1976 has been repealed.

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Schedule 1Repeal and Transitional Provisions

Part 1Repeal of the Australia-Japan Foundation Act 1976

Item 1The whole of the Act
This item repeals the Act.

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Schedule 1Repeal and Transitional Provisions
Part 2Transitional provisions


Division 1Preliminary
Item 2Definitions
This item defines certain terms which are used in Part 2 of the Schedule relating to the
transitional provisions to transfer the Foundation's assets, liabilities and legal
proceedings to the Department.


Division 2Assets, liabilities and legal proceedings
Item 3Vesting of assets of Foundation
This item applies to the assets of the Foundation immediately before the
commencement time. At the commencement time, the assets to which this item
applies cease to be assets of the Foundation and become assets of the Commonwealth
without any conveyance, transfer or assignment. The Commonwealth becomes the
successor in law in relation to these assets.


Item 4Vesting of liabilities of Foundation
This item applies to the liabilities of the Foundation immediately before the
commencement time. At the commencement time, the liabilities to which this item
applies cease to be liabilities of the Foundation and become liabilities of the
Commonwealth without any conveyance, transfer or assignment. The Commonwealth
becomes the successor in law in relation to these liabilities.


Items 5Certificates relating to vesting of land
This item facilitates the registration of the transfer of assets under any law of the
Commonwealth, a State or a Territory that provides for the registration or recording
of interests.


Items 6Certificates relating to vesting of assets other than land
This item facilitates the registration of the transfer of assets other than land under any
law of the Commonwealth, a State or a Territory that provides for the registration or
recording of interests.


Item 7Substitution of Commonwealth as a party to pending proceedings
This item substitutes the Commonwealth for the Foundation as the appropriate party
in any pending proceedings from the commencement time.

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Item 8Transfer of custody of Foundation records
This item requires the transfer of any record or documents in the custody of the
Foundation or a committee of the Foundation to be transferred into the custody of the
Commonwealth at or after the commencement time.


Division 3Reference to, and things done by or in relation to, Foundation
Item 9References in instruments
This item provides for instruments made before the commencement time that refer to
the Foundation (including references to staff of the Foundation) to continue to have
effect after the commencement time, as if the reference to the Foundation or the
member of staff of the Foundation were a reference to the Commonwealth or to a
member of the staff of the Department.
9(3) empowers the Minister to determine that subitems (1) and (2) do not apply to a
specified reference contained in an instrument, and that a determination under these
subitems have effect accordingly.
If the Minister makes a determination under subitem (3) in relation to a specified
reference, 9(4) permits regulations to be made after the commencement time in
relation to that instrument containing the reference specified where the reference were
a reference to a specified person or body other than the Commonwealth, or the
reference were a reference to a specified person or body other than a member of the
staff of the Foundation.
9(5) provides that determinations made by the Minister under subitem (3) are not
legislative instruments. In the majority of cases a determination of this kind would
not be legislative within the meaning of section 5 of the Legislative Instruments Act
2003. If any determination of this kind is arguably legislative within the meaning of
that section (for example, because it changes such a reference in a legislative
instrument), the determination has been declared not to be legislative as it is
transitional and will only be required for a limited period of time.


Item 10Operation of laws
Item 10(1) attaches responsibility for things done by, or in relation to, the Foundation
to the Commonwealth.
Item 10(2) empowers the Minister to make a determination providing that item 10(1)
does not apply in a particular case.
If the Minister makes a determination under subitem (2) in relation to a specified
thing, 10(3) permits that regulations can be made in relation to that thing providing
that after the commencement time the thing is taken to have been done by, or in
relation to, a specified person or body other than the Commonwealth.
10(4) clarifies the meaning of doing a thing.
10(5) is included to assist readers, as the determination is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.

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Item 11Appropriation of money
Item 11(1) clarifies that for the purposes of the operation of an Appropriation Act
after the commencement time, references to the Foundation are to be read as
references to the Department.
Item 11(2) is included as the current Australia-Japan Account will be abolished by
repeal of the Act and is expected to be replaced with another Special Account which
the Finance Minister will be requested to establish under section 20 of the Financial
Management and Accountability Act 1997. The new Special Account will have
similar purposes to the Australia-Japan Account. 11(2) allows the Department to
credit an amount equal to the balance of the Australia-Japan Account immediately
before its abolition to the new Special Account. It does this by increasing the
departmental item for the Department in the Appropriation Act (No. 1) 2005-2006.
Under section 14 of that Act, the Department can then debit that amount against the
appropriation for that item and credit it to the new Special Account.


Item 12Financial Statements and other reporting requirements
This item is intended to enable the efficient and effective discharge of reporting
obligations of the Foundation after the commencement of this Act.
12(1) transfers any lawful obligation to comply with reporting requirements ending
after the commencement time to the Secretary of the Department.
12(2) transfers any lawful obligation to comply with a reporting requirements not met
by the Foundation to the Secretary of the Department.


Division 4Miscellaneous
Item 13Exemption from stamp duty and other State or Territory taxes
This item ensures that the operation of transitional provisions in Schedule 1, including
the transfer of assets and liabilities affected by items 3 and 4, do not result in a
liability to pay State or Territory stamp duty or tax.


Item 14Compensation for acquisition of property
Item 14 sets out the standard Constitutional compensation provision for acquisition of
property from a person otherwise than on just terms.


Item 15Certificates taken to be authentic
To avoid ambiguity, certificates, including those relating to matters covered in item 5
and 6 of this Schedule, are to be taken as authentic unless the contrary is established.


Item 16Delegation by Minister
This item allows the Minister to delegate his or her powers and functions under this
Part to the Secretary of the Department of Foreign Affairs and Trade. 16(2) provides

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that, in exercising powers or functions under a delegation, the Secretary must comply
with any directions of the Minister.


Item 17Regulations
This item permits the Governor-General to make regulations in relation to the Bill.
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