ABORIGINAL LAND RIGHTS ACT 1983 - SCHEDULE 3A

ABORIGINAL LAND RIGHTS ACT 1983 - SCHEDULE 3A

SCHEDULE 3A – Transfer of assets, rights and liabilities

(Section 89(6))

1 Definitions

In this Schedule--


"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 (including money), and includes securities, choses in action and documents.


"instrument" means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court.


"liabilities" means any liabilities, debts or obligations (whether present or future and whether vested or contingent).


"transfer order" means an order made under section 89.

2 Vesting of undertaking in transferee

When any assets, rights or liabilities are transferred by a transfer order, the following provisions have effect (subject to the order)--

(a) those assets of the transferor vest in the transferee by virtue of this Schedule and without the need for any conveyance, transfer, assignment or assurance,

(b) those rights and liabilities of the transferor become by virtue of this Schedule the rights and liabilities of the transferee,

(c) all proceedings relating to those assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,

(d) any act, matter or thing done or omitted to be done in relation to those assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,

(e) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets, rights or liabilities but subject to regulations or other provisions under Schedule 4), to be read as, or as including, a reference to the transferee.

3 Operation of Schedule

(1) The operation of this Schedule is not to be regarded--

(a) as a breach of contract or confidence or otherwise as a civil wrong, or

(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.

(2) The operation of this Schedule is not to be regarded as an event of default under any contract or other instrument.

(3) No attornment to the transferee by a lessee from the transferor is required.

(4) The operation of this Schedule includes the making of a transfer order.

4 Date of vesting

A transfer order takes effect on the date specified in the order.

5 Consideration for vesting

(1) A transfer order may specify the consideration on which the order is made and the value or values at which the assets, rights or liabilities are transferred.

(2) The consideration and value or values cannot exceed the optimised deprival value of those assets, rights or liabilities.

(3) In this clause,
"optimised deprival value" means a value determined by the application of the Guidelines on Accounting Policy for Valuation of Government Trading Enterprises prepared by the Steering Committee on National Performance Monitoring of Government Trading Enterprises, agreed on by the Commonwealth and States and published in October 1994.

6 Duties

Duty under the Duties Act 1997 is not chargeable in respect of--

(a) the transfer of assets, rights and liabilities to a person by a transfer order, or

(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or registration of an interest in land).

7 Transfer of interest in land

(1) A transfer order may transfer an interest in respect of land vested in the transferor without transferring the whole of the interests of the transferor in that land.

(2) If the interest transferred is not a separate interest, the order operates to create the interest transferred in such terms as are specified in the order.

(3) This clause does not limit any other provision of this Schedule.

8 Determinations of Minister for purposes of orders

For the purposes of any transfer order, a determination by the Minister as to which entity to which any assets, rights or liabilities relate is conclusive.

9 Confirmation of vesting

(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights and liabilities by operation of this Schedule.

(2) Such a notice is conclusive evidence of that transfer.