AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2005

Commonwealth Consolidated Acts

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AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2005 - SCHEDULE 4

Transitional provisions

1 Definitions

(1) In this Schedule, unless the contrary intention appears:

ABA means the Australian Broadcasting Authority that was established by the Broadcasting Services Act 1992 .

ACA means the body corporate that was continued in existence by the Australian Communications Authority Act 1997 .

ACMA means the Australian Communications and Media Authority that is established by the ACMA Act.

ACMA Act means the Australian Communications and Media Authority Act 2005 .

asset means:

(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and

(b) any right, power, privilege or immunity, whether actual, contingent or prospective;

but does not include a right, power, privilege or immunity conferred by an Act or by regulations or other subordinate legislation made under an Act.

assets official , in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

Imposition Act means any of the following Acts:

(a) the Datacasting Charge (Imposition) Act 1998 ;

(b) the Radiocommunications (Receiver Licence Tax) Act 1983 ;

(d) the Radiocommunications (Transmitter Licence Tax) Act 1983 ;

(e) the Radio Licence Fees Act 1964 ;

(f) the Telecommunications (Carrier Licence Charges) Act 1997 ;

(g) the Telecommunications (Numbering Charges) Act 1997 ;

(h) the Television Licence Fees Act 1964 .

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official , in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective, but does not include a liability, duty or obligation imposed by an Act or by regulations or other subordinate legislation made under an Act.

transition time means the commencement of section 6 of the ACMA Act.

(2) Subject to subitem (1), an expression used in this Schedule that is also used in the ACMA Act has the same meaning in this Schedule as it has in that Act.

Part 2 -- Assets, liabilities and legal proceedings

2 Vesting of assets of ABA and ACA

(1) This item applies to the assets of the ABA and of the ACA immediately before the transition time.

(2) At the transition time, the assets to which this item applies cease to be assets of the ABA or the ACA and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these assets.

3 Vesting of liabilities of ABA and ACA

(1) This item applies to the liabilities of the ABA and of the ACA immediately before the transition time.

(2) At the transition time, the liabilities to which this item applies cease to be liabilities of the ABA or the ACA and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities.

4 Certificates relating to vesting of land

(1) This item applies if:

(a) any land vests in the Commonwealth under this Part; and

(b) there is lodged with a land registration official a certificate that:

(i) is signed by the Minister; and

(ii) identifies the land, whether by reference to a map or otherwise; and

(iii) states that the land has become vested in the Commonwealth under this Part.

(2) The land registration official may:

(a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

(b) deal with, and give effect to, the certificate.

5 Certificates relating to vesting of assets other than land

(1) This item applies if:

(a) any asset other than land vests in the Commonwealth under this Part; and

(b) there is lodged with an assets official a certificate that:

(i) is signed by the Minister; and

(ii) identifies the asset; and

(iii) states that the asset has become vested in the Commonwealth under this Part.

(2) The assets official may:

(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and

(b) make such entries in the register as are necessary having regard to the effect of this Part.

6 Substitution of ACMA or Commonwealth as a party to pending proceedings

(1) Subject to subitem (2), if any proceedings to which the ABA or the ACA was a party were pending in any court or tribunal immediately before the transition time, the ACMA is substituted for the ABA or the ACA, from the transition time, as a party to the proceedings.

(2) However, if the proceedings were, or were related to:

(a) proceedings taken by the ABA or the ACA in the exercise of a right that is vested in the Commonwealth by item 2; or

(b) proceedings taken against the ABA or the ACA in respect of a liability that is vested in the Commonwealth by item 3;

the Commonwealth is substituted for the ABA or the ACA, from the transition time, as a party to the proceedings.

(3) The regulations may determine that one of subitems (1) and (2), rather than the other of those subitems, applies in relation to a particular proceeding or a class of proceedings.

7 Transfer of custody of ABA and ACA records

(1) This item applies to any records or documents that were in the custody of the ABA or the ACA immediately before the transition time.

(2) The records and documents are to be transferred into the custody of the ACMA at or after the transition time.

Part 3 -- References to, and things done by or in relation to, ABA or ACA

8 References in instruments to ABA or ACA

(1) This item applies to an instrument if it:

(a) was in force immediately before the transition time; and

(b) is an instrument covered by one or more of the following subparagraphs:

(i) an instrument that was made by the ABA or ACA; or

(ii) an instrument to which the ABA or ACA was a party; or

(iii) an instrument that was given to, or in favour of, the ABA or ACA; or

(iv) an instrument under which any right or liability accrues or may accrue to the ABA or ACA; or

(v) any other instrument in which a reference is made to the ABA or ACA.

(2) Subject to subitem (3), an instrument to which this item applies continues to have effect from the transition time as if a reference in the instrument to the ABA or ACA (whether the reference is in that abbreviated form or is in the full name of that Authority) were a reference to the ACMA.

(3) However, if:

(a) the reference is to the ABA or the ACA as an entity with a particular power or capacity (for example, as party to a contract or the holder of real or personal property); and

(b) the ACMA does not have that power or capacity (see sections 12 and 18 of the ACMA Act);

the reference has effect from the transition time as if it were a reference to the Commonwealth.

(4) The regulations may determine that one of subitems (2) and (3), rather than the other of those subitems, applies in relation to a particular reference or class of references.

(5) For the purposes of this item, an instrument :

(a) includes, but is not limited to, a regulation, declaration, determination, direction, licence, application or standard; but

(b) does not include an Act, or an instrument made under an Imposition Act.

9 Transfer of appropriated money

(1) For the purposes of the operation of an Appropriation Act after the commencement of this Schedule, references to the Australian Broadcasting Authority or the Australian Communications Authority are to be read as references to the Australian Communications and Media Authority.

(2) In this item:

Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund.

10 Things done by, or in relation to, ABA or ACA etc.

(1) This item applies to a thing done by, or in relation to, the ABA or the ACA under:

(a) a provision (the authorising provision ) of an Act, other than:

(ii) a provision of an Imposition Act; or

(ii) a provision that is repealed by this Act; or

(b) a provision (the authorising provision ) of an instrument made under a provision of an Act, other than:

(ii) a provision of an Imposition Act; or

(ii) a provision that is repealed by this Act.

(2) Subject to subitem (3), the thing done has effect from the transition time as if it had been done by, or in relation to, the ACMA under the authorising provision as in force from the transition time. However this is not taken to change the time at which the thing was actually done.

(3) However if the thing done is a thing of a kind that, under the authorising provision as in force from the transition time, cannot be done by or in relation to the ACMA, the thing has effect from the transition time as if it had been done by or in relation to the Commonwealth.

(4) The regulations may:

(a) provide that this item does not apply to a specified class or classes of things done; or

(b) determine that one of subitems (2) and (3), rather than the other of those subitems, applies in relation to a particular thing done, or class of things done; or

11 Continuation of inquiries, investigations and hearings

(1) If the ABA or ACA (however constituted) was holding or conducting an inquiry, investigation or hearing (the proceeding ) that had not ended or been discontinued by the transition time, the ACMA is to continue the proceeding in accordance with the provisions as amended by this Act (the relevant provisions ) that apply in relation to that kind of inquiry, investigation or hearing.

(2) The ACMA is to take whatever action, under or for the purposes of the relevant provisions, as is necessary for the continuation of the proceeding. However this does not limit any power or discretion that the ACMA would otherwise have to discontinue such a proceeding.

Note: An example of an action that the ACMA may have to take is to determine how the ACMA is to be constituted for the purposes of the proceeding.

(3) Anything done for the purposes of the proceeding before the transition time is taken to have been done for the purposes of the proceeding as continued in accordance with this item.

(4) This item has effect despite item 10, but does not otherwise limit the generality of that item.

12 Continued effect of certain instruments made under the repealed provisions

(1) An instrument:

(a) made or given under the Australian Communications Authority Act 1997 and specified in the following table; and

(b) in force immediately before the transition time;

continues to have effect from the transition time as if it were made or given under the corresponding provision of the ACMA Act specified in the table.

*Instruments made under Australian Communications Authority Act 1997* that continue to have effect**
Item	*This instrument made or given under this provision of the Australian Communications Authority Act 1997* ...**	continues to have effect as if it were made or given under this provision of the ACMA Act...
1	instruction under paragraph 8(1)(aa)	paragraph 11(1)(a)
2	instruction under paragraph 8(1)(ab)	paragraph 11(1)(b)
3	arrangement under paragraph 41(1)(a)	paragraph 55(1)(a)
4	arrangement under paragraph 41(1)(b)	paragraph 55(1)(b)
5	direction given under subsection 52(3)	subsection 59(5)
6	determination under subsection 53(1)	subsection 60(1)
7	determination under subsection 54(1)	subsection 64(1)

(2) A determination in force under clause 61 of Schedule 4 to the Broadcasting Services Act 1992 immediately before the transition time has effect from the transition time as if it were a determination under subsection 60(1) of the ACMA Act.

(3) A designation or reference in force under subsection 31(1) of the Radiocommunications Act 1992 immediately before the transition time has effect from the transition time as if it were a designation or reference under subsection 31(1) of that Act as amended by Schedule 1 to this Act.

(4) An agreement in force under subsection 31(2) of the Radiocommunications Act 1992 immediately before the transition time has effect from the transition time as if it were a determination under subsection 31(2) of that Act as amended by Schedule 1 to this Act.

(5) A suspension in force under subsection 128C(2) of the Radiocommunications Act 1992 immediately before the transition time has effect from the transition time as if it were a suspension under subsection 128C(1) of that Act as amended by Schedule 1 to this Act.

Note: Instruments made by the ABA or ACA under provisions of Acts that are amended (rather than repealed) by this Act will continue to have effect as a result of item 10.

13 Saving advisory committees etc.

(1) An advisory committee:

(a) established under section 51 of the Australian Communications Authority Act 1997 ; and

(b) in existence immediately before the transition time;

continues in existence from the transition time as if it were established under subsection 58(1) of the ACMA Act.

(2) The persons on the committee immediately before the transition time are taken to have been appointed at the transition time under subsection 58(2) of the ACMA Act.

(3) A direction:

(a) given to the committee under subsection 51(3) of the Australian Communications Authority Act 1997 ; and

(b) in force immediately before the transition time;

continues to have effect from the transition time as if it were given to the committee under subsection 58(4) of the ACMA Act.

Part 4 -- Reporting obligations

14 First annual report for ACMA

(1) This item applies if the transition time is in April, May or June of a financial year (the first year ).

(2) Section 57 of the ACMA Act does not apply in relation to the first year.

(3) That section applies in relation to the next financial year (the next year ) as if the next year also included the period:

(a) starting at the transition time; and

(b) ending at the end of the first year.

15 Final annual report for ABA and ACA

ACMA must prepare final annual reports for ABA and ACA

(1) For the transitional reporting period (see whichever of subitems (4) and (5) applies), the ACMA must prepare the report referred to in section 9 of the Commonwealth Authorities and Companies Act 1997 for the ABA and the ACA.

(2) A report for the ACA must include the matters described in section 50 of the Australian Communications Authority Act 1997 as in force immediately before the transition time.

(3) The obligation under section 9 of the Commonwealth Authorities and Companies Act 1997 imposed on the final directors of the ABA and the ACA to prepare an annual report for the transitional reporting period is satisfied if the report is prepared by the ACMA.

Transitional reporting periods

(4) If the transition time is on 1 July 2005, the financial year that started on 1 July 2004 is the transitional reporting period .

(5) If the transition time is in the financial year that started on 1 July 2004, the period that:

(a) started at the beginning of that financial year; and

(b) ended immediately before the transition time;

is the transitional reporting period .

Miscellaneous

(6) For the purposes of this item, references to a financial year in:

(a) section 50 of the Australian Communications Authority Act 1997 ; and

(a) section 9 of the Commonwealth Authorities and Companies Act 1997 ;

are taken to be references to the transitional reporting period.

(7) In this item:

final director means a person who was a director (as defined in the Commonwealth Authorities and Companies Act 1997 ) of the ABA or ACA immediately before the transition time.

Part 5 -- Miscellaneous

16 Protecting ACA's names and symbols

Despite the repeal of the Australian Communications Authority Act 1997 by Schedule 1, section 55 of that Act, and regulations for the purposes of that section, as in force immediately before the transition time continue to apply in relation to a protected name and a protected symbol (within the meaning of that section), until the end of:

(a) 12 months after the transition time; or

(b) if a longer period is specified in the regulations--that longer period;

as if:

(d) the reference in subsection 55(2A) of that Act to the ACA were a reference to the ACMA; and

(e) any consent given under subsection 55(2A) of that Act that was in force immediately before the transition time had been given by the ACMA.

17 Exemption from stamp duty and other State or Territory taxes

(1) No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.

(2) For the purposes of this item, an exempt matter is:

(a) the vesting of an asset or liability under this Schedule; or

(b) the operation of this Schedule in any other respect.

(3) The Minister may certify in writing:

(a) that a specified matter is an exempt matter; or

(b) that a specified thing was connected with a specified exempt matter.

(4) In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subitem (3) is prima facie evidence of the matters stated in the certificate.

18 Constitutional safety net

(1) If:

(a) a provision of this Schedule would result in an acquisition of property; and

(b) the provision would not be valid, apart from this section, because a particular person has not been compensated;

the Commonwealth must pay that person:

(d) failing agreement--a reasonable amount of compensation determined by a court of competent jurisdiction.

(2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this item must be taken into account in assessing compensation payable in a proceeding begun under this item and arising out of the same event or transaction.

(3) In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

19 Certificates taken to be authentic

A document that appears to be a certificate made or issued under a particular provision of this Schedule:

(a) is taken to be such a certificate; and

(b) is taken to have been properly given;

unless the contrary is established.

20 Delegation by Minister

(1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule to:

(a) the Secretary of the Department; or

(b) an SES employee, or acting SES employee, in the Department.

(2) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.

21 Regulations

(1) The Governor‑General may make regulations prescribing matters:

(a) required or permitted by this Schedule to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.

(2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

(a) the amendments or repeals made by this Act; or

(b) the enactment of this Act or the ACMA Act.

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