{"id":"C2004A05252","name":"Health Insurance Commission (Reform and Separation of Functions) Act 1997","slug":"health-insurance-commission-reform-and-separation-of-functions-act-1997","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"159 of 1997","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":27222,"registerId":"commonwealth-C2004A05252-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.","sortOrder":2},{"sectionNumber":"Part 2","sectionType":"part","heading":"Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":3},{"sectionNumber":"Division 1","sectionType":"division","heading":"Introduction","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":4},{"sectionNumber":"3","sectionType":"section","heading":"Simplified outline","content":"#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.","sortOrder":5},{"sectionNumber":"4","sectionType":"section","heading":"Definitions","content":"#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.","sortOrder":6},{"sectionNumber":"5","sectionType":"section","heading":"Nominated company","content":"#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.","sortOrder":7},{"sectionNumber":"6","sectionType":"section","heading":"Fund‑transfer day","content":"#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.","sortOrder":8},{"sectionNumber":"7","sectionType":"section","heading":"Commission‑owned company","content":"#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.","sortOrder":9},{"sectionNumber":"8","sectionType":"section","heading":"Crown to be bound","content":"#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.","sortOrder":10},{"sectionNumber":"9","sectionType":"section","heading":"External Territories","content":"#### 9 External Territories\n\n  This Part extends to all the external Territories.","sortOrder":11},{"sectionNumber":"10","sectionType":"section","heading":"Extra‑territorial operation","content":"#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.","sortOrder":12},{"sectionNumber":"Division 3","sectionType":"division","heading":"Commission to facilitate transfer of Medibank Private to the nominated company","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":13},{"sectionNumber":"15","sectionType":"section","heading":"Commission to facilitate transfer of Medibank Private to the nominated company","content":"#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.","sortOrder":14},{"sectionNumber":"Division 4","sectionType":"division","heading":"Transfer of Medibank Private from the Commission to the nominated company","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":15},{"sectionNumber":"Subdivision A","sectionType":"subdivision","heading":"Transfer of Medibank Private fund","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":16},{"sectionNumber":"16","sectionType":"section","heading":"Transfer of Medibank Private fund to the nominated company","content":"#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.","sortOrder":17},{"sectionNumber":"Subdivision B","sectionType":"subdivision","heading":"Transfers of assets, contracts and liabilities","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":18},{"sectionNumber":"17","sectionType":"section","heading":"Transfer of assets","content":"#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.","sortOrder":19},{"sectionNumber":"18","sectionType":"section","heading":"Transfer of contractual rights and obligations","content":"#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.","sortOrder":20},{"sectionNumber":"19","sectionType":"section","heading":"Transfer of liabilities","content":"#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.","sortOrder":21},{"sectionNumber":"20","sectionType":"section","heading":"Commission contracts may be split","content":"#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).","sortOrder":22},{"sectionNumber":"Subdivision C","sectionType":"subdivision","heading":"Transfer of staff","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":23},{"sectionNumber":"21","sectionType":"section","heading":"Transfer of staff from the Commission","content":"#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.","sortOrder":24},{"sectionNumber":"22","sectionType":"section","heading":"Terms and conditions—transferred employees","content":"#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.","sortOrder":25},{"sectionNumber":"23","sectionType":"section","heading":"Accrued benefits—transferred employees","content":"#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.","sortOrder":26},{"sectionNumber":"24","sectionType":"section","heading":"Continuity of service of transferred employees","content":"#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.","sortOrder":27},{"sectionNumber":"25","sectionType":"section","heading":"Termination payments—transferred employees","content":"#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.","sortOrder":28},{"sectionNumber":"26","sectionType":"section","heading":"Variation of terms and conditions—transferred employees","content":"#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.","sortOrder":29},{"sectionNumber":"27","sectionType":"section","heading":"Mobility rights—transferred employees","content":"#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.","sortOrder":30},{"sectionNumber":"28","sectionType":"section","heading":"Re‑transfer of staff from the nominated company","content":"#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.","sortOrder":31},{"sectionNumber":"29","sectionType":"section","heading":"Terms and conditions—re‑transferred employees","content":"#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).","sortOrder":32},{"sectionNumber":"30","sectionType":"section","heading":"Accrued benefits—re‑transferred employees","content":"#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.","sortOrder":33},{"sectionNumber":"31","sectionType":"section","heading":"Continuity of service of re‑transferred employees","content":"#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.","sortOrder":34},{"sectionNumber":"32","sectionType":"section","heading":"Termination payments—re‑transferred employees","content":"#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.","sortOrder":35},{"sectionNumber":"33","sectionType":"section","heading":"Variation of terms and conditions—re‑transferred employees","content":"#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.","sortOrder":36},{"sectionNumber":"Division 5","sectionType":"division","heading":"Acquisition by the Commonwealth of shares in the nominated company","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":37},{"sectionNumber":"34","sectionType":"section","heading":"Acquisition by the Commonwealth of shares in the nominated company","content":"#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.","sortOrder":38},{"sectionNumber":"Division 6","sectionType":"division","heading":"Exemption from stamp duty","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":39},{"sectionNumber":"36","sectionType":"section","heading":"Exemption from stamp duty","content":"#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.","sortOrder":40},{"sectionNumber":"Division 7","sectionType":"division","heading":"Miscellaneous","content":"An Act to amend the Health Insurance Commission Act 1973, to enact transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation, and for other purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Health Insurance Commission (Reform and Separation of Functions) Act 1997.\n\n#### 2 Commencement\n\n  (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.\n  (2) Subject to subsection (3), Part 2 of Schedule 1 to this Act commences on the fund‑transfer day.\n  (3) If Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997 does not commence before the fund‑transfer day:\n    (a) the amendments of section 9A of the Health Insurance Commission Act 1973; and\n    (b) the repeals of section 35 and paragraphs 42(a), (b) and (c) of the Health Insurance Commission Act 1973;\n  made by this Act commence immediately after the commencement of Schedule 2 to the Audit (Transitional and Miscellaneous) Amendment Act 1997.\n  (4) Part 3 of Schedule 1 to this Act commences at the end of the period of 5 years beginning on the day on which this Act receives the Royal Assent.\n  (5) In this section:\n\n> fund‑transfer day has the same meaning as in Part 2 of this Act.\n\n## Part 2—Transitional provisions relating to the transfer of Medibank Private from the Health Insurance Commission to a separate organisation (the nominated company)\n\n### Division 1—Introduction\n\n#### 3 Simplified outline\n\n  The following is a simplified outline of this Part:\n\n• This Part provides for the transfer of Medibank Private from the Health Insurance Commission to a new company (in this Part called the nominated company). Medibank Private was a part of the Commission as at the commencement of this Part.\n\n• At the time of the transfer, the nominated company will be owned by the Commission.\n\n• Some time after the transfer, the nominated company will be separated from the Commission. The separation will be achieved by transferring ownership of the nominated company to the Commonwealth.\n\n#### 4 Definitions\n\n  In this Part, unless the contrary intention appears:\n\n> asset means:\n\n    (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and\n    (b) any right, power, privilege or immunity, whether actual, contingent or prospective.\n\n> Chairperson, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Commission means the Health Insurance Commission.\n\n> Commission‑owned, in relation to a company, has the meaning given by section 7.\n\n> contract includes:\n\n    (a) a deed; and\n    (b) a deed poll.\n\n> contributor, in relation to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> dependant, in relation to a contributor to a health benefits fund, has the same meaning as in the National Health Act 1953.\n\n> employee includes apprentice.\n\n> fund‑transfer day has the meaning given by section 6.\n\n> instrument includes a document.\n\n> 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.\n\n> liability means any liability, duty or obligation, whether actual, contingent or prospective.\n\n> Medibank Private functions, in relation to the Commission, means the functions that were conferred on the Commission by Part IIA of the Health Insurance Commission Act 1973 as in force before the fund‑transfer day.\n\n> Medibank Private fund means the health benefits fund conducted by the Commission.\n\n> nominated company has the meaning given by section 5.\n\n> re‑transferred employee means a person whose employment is transferred in accordance with a declaration under section 28.\n\n> re‑transfer time, in relation to an employee, has the meaning given by section 28.\n\n> transferred employee means a person whose employment is transferred in accordance with a declaration under section 21.\n\n> transfer time, in relation to an employee, has the meaning given by section 21.\n\n> voting shares has the same meaning as in the Corporations Act 2001.\n\n#### 5 Nominated company\n\n  (1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.\n  (2) At the time when the declaration is made, the company must:\n    (a) be incorporated under the Corporations Act 2001; and\n    (b) have a share capital; and\n    (c) be Commission‑owned.\n  (3) The declaration has effect accordingly.\n  (4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 6 Fund‑transfer day\n\n  (1) The Minister may, by writing, determine that a specified day is the fund‑transfer day for the purposes of this Part.\n  (2) The day must:\n    (a) be after the commencement of this section; and\n    (b) be a day when the nominated company is registered as a registered health benefits organisation under the National Health Act 1953.\n  (3) The determination has effect accordingly.\n  (4) A copy of a determination under subsection (1) is to be published in the Gazette within 14 days after the making of the determination.\n\n#### 7 Commission‑owned company\n\n  For the purposes of this Part, a company is Commission‑owned at a particular time if, and only if, all the shares in the company are legally and beneficially owned by the Commission at that time.\n\n#### 8 Crown to be bound\n\n  This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.\n\n#### 9 External Territories\n\n  This Part extends to all the external Territories.\n\n#### 10 Extra‑territorial operation\n\n  This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.\n\n### Division 3—Commission to facilitate transfer of Medibank Private to the nominated company\n\n#### 15 Commission to facilitate transfer of Medibank Private to the nominated company\n\n  The functions of the Commission include:\n    (a) facilitating the transfer from the Commission to the nominated company of the Medibank Private fund; and\n    (b) assisting the nominated company, the Commonwealth and other persons in connection with:\n    (i) the implementation of this Part; and\n    (ii) preparatory work associated with the implementation of this Part.\n\n### Division 4—Transfer of Medibank Private from the Commission to the nominated company\n\n#### Subdivision A—Transfer of Medibank Private fund\n\n#### 16 Transfer of Medibank Private fund to the nominated company\n\n  (1) The Minister may, by writing, formulate a scheme for the transfer of the Medibank Private fund, and the business of that fund, to the nominated company.\n  (2) The scheme must provide that the transfer will occur on the fund‑transfer day.\n  (3) The scheme must provide that the transfer does not affect the continuity of a person’s status as a contributor to the fund.\n  (4) The scheme must require the nominated company to adopt the rules in force under section 8A of the Health Insurance Commission Act 1973 immediately before the fund‑transfer day, subject to such modifications (if any) as are set out in the scheme. However, this subsection does not prevent the rules from being varied by the nominated company after the fund‑transfer day.\n  (5) The scheme may contain such ancillary or incidental provisions as the Minister considers appropriate.\n  (6) The scheme must set out outlines of any declarations, contracts or other arrangements:\n    (a) under which the proposed transfer is to be carried out; or\n    (b) that are otherwise necessary to give effect to the scheme.\n  (7) The scheme has effect accordingly and is binding on all persons.\n  (8) A copy of the scheme is to be published in the Gazette within 14 days after the formulation of the scheme.\n  (9) To avoid doubt, the scheme may be varied or revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901, at any time before the fund‑transfer day.\n  (10) This section does not limit section 17, 18 or 19.\n  (11) In this section:\n\n> declaration means a declaration under section 17, 18 or 19.\n\n#### Subdivision B—Transfers of assets, contracts and liabilities\n\n#### 17 Transfer of assets\n\n  (1) This section applies to an asset of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to a specified asset continues to have effect after the asset vests in the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.\n\n> Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to an asset of the Medibank Private fund, the time specified under paragraph (2)(a) must be a time that occurs during the fund‑transfer day.\n  (6) Subsection (2) does not prevent the Commission from transferring an asset to the nominated company otherwise than under that subsection.\n  (7) If a share in a company (the first company) vests in the nominated company under this section, the first company must register the nominated company as the holder of the share.\n  (8) Subsection (7) has effect despite anything in the Corporations Act 2001.\n\n#### 18 Transfer of contractual rights and obligations\n\n  (1) This section applies to a contract (other than a contract of employment) to which the Commission is a party.\n  (2) The Minister may, by writing, declare that the Commission’s rights and obligations under a specified contract:\n    (a) cease to be rights and obligations of the Commission at a specified time; and\n    (b) become rights and obligations of the nominated company at that time.\n  (3) The Minister may, by writing, declare that a specified contract continues to have effect after a specified time as if a reference in the contract to the Commission were a reference to the nominated company.\n  (4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commission were a reference to the nominated company.\n  (5) The Minister may, by writing, declare that the nominated company becomes the Commission’s successor in law, in relation to the Commission’s rights and obligations under a specified contract, immediately after the Commission’s rights and obligations under the contract become rights and obligations of the nominated company.\n  (6) A declaration under this section has effect accordingly.\n  (7) A copy of a declaration under this section is to be published in the Gazette within 14 days after the making of the declaration.\n  (8) If a declaration under this section relates to any of the following contracts:\n    (a) a contract under which contributions are made to the Medibank Private fund;\n    (b) a contract under which a person agrees to supply goods or services to a contributor to the Medibank Private fund or to a dependant of such a contributor;\n    (c) an applicable benefits arrangement (within the meaning of the National Health Act 1953);\n    (d) a hospital purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n    (e) a medical purchaser‑provider agreement (within the meaning of the National Health Act 1953);\n  the time specified under subsection (2) or (3) must be a time that occurs during the fund‑transfer day.\n  (9) This section does not, by implication, limit section 17 or 19.\n\n> Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n  (10) In paragraph (8)(b):\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n#### 19 Transfer of liabilities\n\n  (1) This section applies to a liability of the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that a specified liability ceases to be a liability of the Commission and becomes a liability of the nominated company at a specified time;\n    (b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the nominated company as if a reference in the instrument to the Commission were a reference to the nominated company;\n    (c) a declaration that the nominated company becomes the Commission’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If a declaration under subsection (2) relates to a liability of the Medibank Private fund, the time specified under subsection (2) must be a time that occurs during the fund‑transfer day.\n\n> Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.\n\n#### 20 Commission contracts may be split\n\n  (1) The object of this section is to enable a Commission contract to be split into 2 separate contracts so that one of those contracts can be transferred to the nominated company under this Division.\n  (2) For the purposes of this section, a Commission contract is a contract between the Commission and another person (the supplier) for the supply to the Commission of goods or services.\n  (3) The Minister may, by writing, declare that:\n    (a) a specified Commission contract terminates at a specified time without giving the supplier any entitlement to compensation or damages (other than an entitlement (if any) under section 46); and\n    (b) the Commission is taken to have entered into a contract (the Medibank Private contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration; and\n    (c) the Commission is taken to have entered into a contract (the residual contract) with the supplier at that time for the supply of some of those goods or services in the terms set out in the declaration.\n  (4) A declaration under subsection (3) has effect accordingly.\n  (5) A copy of a declaration under subsection (3) is to be published in the Gazette within 14 days after the making of the declaration.\n  (6) A copy of a declaration under subsection (3) is to be given to the supplier as soon as practicable after the making of the declaration.\n  (7) If a declaration is made under subsection (3) in relation to a Commission contract:\n    (a) the sum of:\n    (i) the consideration that is to be paid to the supplier under the Medibank Private contract; and\n    (ii) the consideration that is to be paid to the supplier under the residual contract;\n    must equal the consideration that would have been paid to the supplier under the Commission contract if the declaration had not been made; and\n    (b) the aggregate of:\n    (i) the obligations imposed on the supplier under the Medibank Private contract; and\n    (ii) the obligations imposed on the supplier under the residual contract;\n    must not be more onerous than the obligations that would have been imposed on the supplier under the Commission contract if the declaration had not been made.\n  (8) In this section:\n\n> goods has the same meaning as in the Competition and Consumer Act 2010.\n\n> person includes a partnership.\n\n> services has the same meaning as in the Competition and Consumer Act 2010.\n\n> supply has the same meaning as in the Competition and Consumer Act 2010.\n\n  (9) To avoid doubt, a reference in this section to services includes a reference to rights arising under a computer software licence.\n  (10) Subsection (9) is to be disregarded in interpreting a law of the Commonwealth (other than this section).\n\n#### Subdivision C—Transfer of staff\n\n#### 21 Transfer of staff from the Commission\n\n  (1) This section applies to an employee of the Commission.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the Commission at a specified time (the employee’s transfer time); and\n    (b) is taken to have been engaged by the nominated company as an employee of the nominated company at the employee’s transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 22 Terms and conditions—transferred employees\n\n  (1) A person who is a transferred employee is taken to have been engaged by the nominated company on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the Commission.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a determination under subsection 28(2) of the Health Insurance Commission Act 1973; or\n    (b) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (c) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996.\n\n#### 23 Accrued benefits—transferred employees\n\n  A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the nominated company, that is equivalent to the entitlement that the person had accrued, as an employee of the Commission, immediately before the employee’s transfer time.\n\n#### 24 Continuity of service of transferred employees\n\n  The service of a transferred employee as an employee of the nominated company is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the Commission.\n\n#### 25 Termination payments—transferred employees\n\n  A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the Commission as a result of this Part.\n\n#### 26 Variation of terms and conditions—transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n#### 27 Mobility rights—transferred employees\n\n  For the purposes of the application of Part IV of the Public Service Act 1922 in relation to a transferred employee, the nominated company is taken to be, after the employee’s transfer time, a Commonwealth authority for the purposes of that Part.\n\n#### 28 Re‑transfer of staff from the nominated company\n\n  (1) This section applies to an employee of the nominated company if the employee was engaged by the company under section 21.\n  (2) The Minister may, by written instrument, declare that a specified employee:\n    (a) ceases to be employed by the nominated company at a specified time (the employee’s re‑transfer time); and\n    (b) is taken to have been engaged by the Commission as an employee of the Commission at the employee’s re‑transfer time.\n  (3) A declaration under this section has effect accordingly.\n  (4) A time specified under subsection (2) must be a time that occurs:\n    (a) when the nominated company is Commission‑owned; or\n    (b) within 18 months after the nominated company ceases to be Commission‑owned.\n  (5) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n\n#### 29 Terms and conditions—re‑transferred employees\n\n  (1) A person who is a re‑transferred employee is to be engaged by the Commission on terms and conditions that are not less favourable than those that applied to the person, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n  (2) A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:\n    (a) a written contract of employment; or\n    (b) a determination in force under subsection 28(2) of the Health Insurance Commission Act 1973 immediately before the employee’s transfer time, to the extent that the determination is relevant to the employee because of subsection 22(1); or\n    (c) an award (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (d) a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005); or\n    (e) an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 as in force immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005).\n\n#### 30 Accrued benefits—re‑transferred employees\n\n  A person who is a re‑transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the Commission, that is equivalent to the entitlement that the person had accrued, as an employee of the nominated company, immediately before the employee’s re‑transfer time.\n\n#### 31 Continuity of service of re‑transferred employees\n\n  The service of a re‑transferred employee as an employee of the Commission is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s re‑transfer time, as an employee of the nominated company.\n\n#### 32 Termination payments—re‑transferred employees\n\n  A re‑transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the nominated company as a result of this Part.\n\n#### 33 Variation of terms and conditions—re‑transferred employees\n\n  (1) This Part does not prevent the terms and conditions of a re‑transferred employee’s employment after the employee’s re‑transfer time from being varied:\n    (a) in accordance with those terms and conditions; or\n    (b) by or under a law, determination or industrial instrument.\n  (2) In this section:\n\n> industrial instrument means any of the following instruments within the meaning given by the Workplace Relations Act 1996:\n\n    (a) a workplace agreement;\n    (b) an award or a variation or order affecting an award;\n    (c) a transitional award or a variation or order affecting a transitional award;\n    (d) a pre‑reform AWA;\n    (e) a pre‑reform certified agreement;\n    (f) an AWA.\n\n> vary, in relation to terms and conditions, includes:\n\n    (a) omitting any of those terms and conditions; or\n    (b) adding to those terms and conditions; or\n    (c) substituting new terms or conditions for any of those terms and conditions.\n\n### Division 5—Acquisition by the Commonwealth of shares in the nominated company\n\n#### 34 Acquisition by the Commonwealth of shares in the nominated company\n\n  (1) This section applies to shares in the nominated company that are legally and beneficially owned by the Commission.\n  (2) The Minister may, by writing, make any or all of the following declarations:\n    (a) a declaration that the legal and beneficial interests in all of those shares vest in the Commonwealth at a specified time without any conveyance, transfer or assignment;\n    (b) a declaration that a specified instrument relating to any or all of those shares continues to have effect after the legal and beneficial interests in those shares vest in the Commonwealth as if a reference in the instrument to the Commission were a reference to the Commonwealth;\n    (c) a declaration that the Commonwealth becomes the Commission’s successor in law in relation to those shares immediately after the legal and beneficial interests in those shares vest in the Commonwealth.\n  (3) A declaration under subsection (2) has effect accordingly.\n  (4) A copy of a declaration under subsection (2) is to be published in the Gazette within 14 days after the making of the declaration.\n  (5) If the legal and beneficial interests in shares vest in the Commonwealth under this section, the nominated company must register the Commonwealth as the holder of the shares.\n  (6) Subsection (5) has effect despite anything in the Corporations Act 2001.\n  (7) To avoid doubt, this section does not prevent or limit the formulation, entering into, or carrying out, of a Medibank Private sale scheme.\n  (8) In this section:\n\n> Medibank Private sale scheme has the same meaning as in the Medibank Private Sale Act 2006.\n\n### Division 6—Exemption from stamp duty\n\n#### 36 Exemption from stamp duty\n\n  (1) In this section:\n\n> designated matter means:\n\n    (a) a matter relating to the carrying out of a scheme formulated under section 16; or\n    (b) a transfer under section 17, 18 or 19; or\n    (c) an agreement relating to a transfer covered by paragraph (b); or\n    (d) a matter arising under section 20; or\n    (e) a transfer under section 34; or\n    (f) an agreement relating to a transfer covered by paragraph (e).\n  (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of:\n    (a) a designated matter; or\n    (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.\n\n### Division 7—Miscellaneous\n\n#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.\n\n#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.\n\n#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.\n\n#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.\n\n#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.\n\n#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.\n\n#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.\n\n#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.\n\n#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.\n\n#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).\n\n#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.\n\n#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.\n\n#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.\n\n#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.\n\n#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":41},{"sectionNumber":"37","sectionType":"section","heading":"Transfers of land may be registered","content":"#### 37 Transfers of land may be registered\n\n  (1) This section applies if:\n    (a) any right, title or interest in particular land vests in the nominated company under section 17; and\n    (b) there is lodged with a land registration official a certificate that:\n    (i) is signed by the Minister; and\n    (ii) identifies the land; and\n    (iii) states that the right, title or interest has become vested in the nominated company under section 17.\n  (2) The land registration official may:\n    (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\n    (b) deal with, and give effect to, the certificate.\n  (3) A document that appears to be a certificate under subsection (1) is to be taken to be such a certificate, and to have been properly given, unless the contrary is established.","sortOrder":42},{"sectionNumber":"38","sectionType":"section","heading":"This Part does not modify registers kept by land registration officials","content":"#### 38 This Part does not modify registers kept by land registration officials\n\n  This Part, in so far as it provides for the interpretation of references in other instruments, does not modify any register kept by a land registration official under a law of a State or Territory.","sortOrder":43},{"sectionNumber":"39","sectionType":"section","heading":"Application of Lands Acquisition Act","content":"#### 39 Application of Lands Acquisition Act\n\n  The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.","sortOrder":44},{"sectionNumber":"40","sectionType":"section","heading":"Instruments under this Part not legislative instruments","content":"#### 40 Instruments under this Part not legislative instruments\n\n  To avoid doubt, an instrument made under this Part (other than regulations under section 53) is not taken to be a legislative instrument for the purposes of the Legislation Act 2003.","sortOrder":45},{"sectionNumber":"41","sectionType":"section","heading":"Transfer of pending proceedings","content":"#### 41 Transfer of pending proceedings\n\n  (1) This section applies if, as a result of a declaration made by the Minister under this Part, a person (the successor) becomes the successor in law of another person (the original person) at a particular time in relation to a particular asset, liability, right, benefit or obligation.\n  (2) If any proceedings to which the original person was a party:\n    (a) were pending in any court or tribunal immediately before that time; and\n    (b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;\n  then, unless the Minister otherwise determines in writing in relation to the proceedings, the successor is, by force of this subsection, substituted for the original person as a party to the proceedings to the extent to which the proceedings relate to the asset, liability, right, benefit or obligation, as the case requires.","sortOrder":46},{"sectionNumber":"42","sectionType":"section","heading":"Operation of this Part does not place a person in breach of contract etc.","content":"#### 42 Operation of this Part does not place a person in breach of contract etc.\n\n  To avoid doubt, the operation of this Part is not to be regarded as:\n    (a) placing a person in breach of contract or confidence; or\n    (b) otherwise making a person guilty of a civil wrong; or\n    (c) placing a person in breach of any contractual provision prohibiting, restricting or regulating:\n    (i) the assignment or transfer of any asset, liability, right or obligation; or\n    (ii) the disclosure of any information; or\n    (d) releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.","sortOrder":47},{"sectionNumber":"43","sectionType":"section","heading":"Transfer of records","content":"#### 43 Transfer of records\n\n  (1) This section applies to a record of the Commission that relates to Medibank Private.\n  (2) The Minister may direct the Commission to transfer specified records to the nominated company.\n\n> Note: A record may be specified by name, by inclusion in a specified class or in any other way.\n\n  (3) The Commission must ensure that the direction is complied with.\n  (4) In this section:\n\n> record has the same meaning as in the Archives Act 1983.","sortOrder":48},{"sectionNumber":"44","sectionType":"section","heading":"Nominated company not to be an agency of the Commonwealth etc.","content":"#### 44 Nominated company not to be an agency of the Commonwealth etc.\n\n  (1) The nominated company is not taken, for the purposes of a law, to be:\n    (a) a Commonwealth authority; or\n    (b) established for a public purpose or for a purpose of the Commonwealth; or\n    (c) a public authority or an agency or instrumentality of the Crown;\n  (within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.\n  (2) In this section:\n\n> law means:\n\n    (a) an Act of the Commonwealth or of a State or Territory; or\n    (b) regulations or any other instrument made under such an Act.","sortOrder":49},{"sectionNumber":"46","sectionType":"section","heading":"Compensation—constitutional safety‑net","content":"#### 46 Compensation—constitutional safety‑net\n\n  (1) If:\n    (a) apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and\n    (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;\n  the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n  (3) In this section:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.","sortOrder":50},{"sectionNumber":"47","sectionType":"section","heading":"Delegation","content":"#### 47 Delegation\n\n  (1) The Minister may, by writing, delegate to the Chairperson of the Commission all or any of the functions or powers conferred on the Minister by this Part (other than Subdivision C of Division 4).\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (2) The Minister may, by writing, delegate to all or any of the following groups:\n    (a) the Managing Director of the Commission and the Chief Executive Officer of the nominated company;\n    (b) the Managing Director of the Commission and the Human Resources Manager of the nominated company;\n    (c) the Chief Executive Officer of the nominated company and the Human Resources Manager of the Commission;\n    (d) the Human Resources Manager of the Commission and the Human Resources Manager of the nominated company;\n  all or any of the functions and powers conferred on the Minister by Subdivision C of Division 4.\n\n> Note: Subdivision C of Division 4 deals with transfer of staff.\n\n  (3) A function or power delegated to a group under subsection (2) may be performed or exercised by both members of the group acting jointly, and may not otherwise be performed or exercised under the delegation.\n  (5) In this section:\n\n> Chief Executive Officer, in relation to the nominated company, means the chief executive officer (however described) of the nominated company.\n\n> Human Resources Manager means:\n\n    (a) in relation to the Commission—the Commission’s General Manager, Human Resource Management; and\n    (b) in relation to the nominated company—the employee of the nominated company whose position corresponds to the Commission’s General Manager, Human Resource Management.\n\n> Managing Director, in relation to the Commission, has the same meaning as in the Health Insurance Commission Act 1973.\n\n> Senior Executive Service office has the same meaning as in the Public Service Act 1922.","sortOrder":51},{"sectionNumber":"48","sectionType":"section","heading":"Commonwealth records","content":"#### 48 Commonwealth records\n\n  (1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.\n  (2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the Australian Archives has given permission under paragraph 24(2)(b) of the Archives Act 1983.\n  (3) If the nominated company is Commission‑owned, the Archives Act 1983 has effect as if the nominated company were a Commonwealth‑controlled company (within the meaning of that Act).","sortOrder":52},{"sectionNumber":"49","sectionType":"section","heading":"Complaints and investigations under the Ombudsman Act 1976","content":"#### 49 Complaints and investigations under the Ombudsman Act 1976\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Ombudsman under the Ombudsman Act 1976 before the fund‑transfer day in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day;\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Ombudsman commenced the investigation under the Ombudsman Act 1976 in relation to action taken by the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Ombudsman had not finally disposed of the matter in accordance with that Act.\n  (2) The Ombudsman Act 1976 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the action taken by the Commission had been taken by the nominated company; and\n    (b) the nominated company were a prescribed authority (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the action occurred.","sortOrder":53},{"sectionNumber":"50","sectionType":"section","heading":"Requests under the Freedom of Information Act 1982","content":"#### 50 Requests under the Freedom of Information Act 1982\n\n  (1) If:\n    (a) before the fund‑transfer day, a request was made under the Freedom of Information Act 1982 for access to a document in the possession of the Commission; and\n    (b) the document has been transferred to the nominated company under this Part; and\n    (c) the request had not been finally disposed of under the Freedom of Information Act 1982 immediately before the fund‑transfer day;\n  then:\n    (d) the request is taken to have been transferred to the nominated company on the fund‑transfer day; and\n    (e) the Freedom of Information Act 1982 has effect on and after the fund‑transfer day, in relation to the request, as if the nominated company were an agency (within the meaning of that Act).\n  (2) If:\n    (a) immediately before the fund‑transfer day, a person had a right to:\n    (i) apply under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of the Commission made under the Freedom of Information Act 1982 in relation to a particular document, where possession of the document has been transferred from the Commission to the nominated company under this Part; or\n    (ii) request under the AAT Act a statement of reasons for such a decision; or\n    (b) before the fund‑transfer day, a person made such an application or request but it had not been finally disposed of under the AAT Act before the fund‑transfer day;\n  the AAT Act has effect on and after the fund‑transfer day, in relation to the right, application or request as if:\n    (c) the decision made by the Commission had been made by the nominated company; and\n    (d) the nominated company had been in existence at all relevant times; and\n    (e) the nominated company were substituted for the Commission as a party to any relevant proceedings arising under that Act.","sortOrder":54},{"sectionNumber":"51","sectionType":"section","heading":"Complaints and investigations under the Privacy Act 1988","content":"#### 51 Complaints and investigations under the Privacy Act 1988\n\n  (1) This section applies to:\n    (a) a complaint if:\n    (i) the complaint could have been made to the Privacy Commissioner under the Privacy Act 1988 before the fund‑transfer day in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) the complaint is made on or after the fund‑transfer day; or\n    (b) a complaint if:\n    (i) before the fund‑transfer day, the complaint was made to the Privacy Commissioner under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act; or\n    (c) an investigation if:\n    (i) before the fund‑transfer day, the Privacy Commissioner commenced the investigation under the Privacy Act 1988 in relation to an act or practice of the Commission in connection with the performance of the Commission’s Medibank Private functions; and\n    (ii) immediately before the fund‑transfer day, the Privacy Commissioner had not finally disposed of the matter in accordance with that Act.\n  (2) The Privacy Act 1988 has effect on and after the fund‑transfer day, in relation to the complaint or investigation, as if:\n    (a) the act or practice of the Commission had been an act or practice of the nominated company; and\n    (b) the nominated company were an agency (within the meaning of that Act); and\n    (c) the nominated company had been in existence at the time when the act or practice occurred.","sortOrder":55},{"sectionNumber":"52","sectionType":"section","heading":"This Part does not authorise the imposition of taxation","content":"#### 52 This Part does not authorise the imposition of taxation\n\n  This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.","sortOrder":56},{"sectionNumber":"53","sectionType":"section","heading":"Regulations","content":"#### 53 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Part to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part.","sortOrder":57}],"analysis":{"summary":{"name":"Health Insurance Commission (Reform and Separation of Functions) Act 1997","slug":"health-insurance-commission-reform-and-separation-of-functions-act-1997","title_id":"C2004A05252","version_id":27222,"analysis_type":"summary","content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":false,"description":"A complete Commonwealth Act consisting of Part 1 (preliminary), Part 2 (transitional provisions for the Medibank Private separation), and associated Ministerial declaration powers. The stored source repeats the content multiple times but the substantive Act is approximately 46,000 characters of unique content."},"complexity_factors":["Multiple interdependent Ministerial declaration powers for assets, contracts, liabilities, and staff","Two-phase corporate separation structure (Commission-owned then Commonwealth-owned)","Cross-references to National Health Act 1953, Corporations Act 2001, Workplace Relations Act 1996, and Archives Act 1983","Transitional machinery with time-based triggers (fund-transfer day)"],"plain_english_summary":"The Health Insurance Commission (Reform and Separation of Functions) Act 1997 is a Commonwealth Act that provided the legal framework for separating Medibank Private from the Health Insurance Commission (HIC) and transferring it to a new, separate corporate entity known as the nominated company.\n\nThe Act's central purpose was to corporatise the HIC's Medibank Private health insurance function by transferring the Medibank Private fund, associated assets, contracts, liabilities, and staff to a nominated company incorporated under the Corporations Act. The transfer was structured around a key date called the fund-transfer day, determined by Ministerial declaration.\n\nThe Minister was given broad powers under Part 2 to declare transfers of assets (s 17), contractual rights and obligations (s 18), liabilities (s 19), and to split existing HIC contracts between Medibank Private and residual HIC operations (s 20). Staff transfers were handled under Division 4, Subdivision C, which gave the Minister power to transfer individual HIC employees to the nominated company under s 21, preserving their accrued entitlements, continuity of service, and existing terms and conditions.\n\nA two-stage separation was envisaged: first, the nominated company would be wholly owned by the Commission, and then ownership of the nominated company would transfer to the Commonwealth via a Ministerial declaration under s 34. This paved the way for eventual privatisation.\n\nThe Act includes stamp duty exemptions for designated transfer transactions (s 36), a constitutional safety-net compensation clause for compulsory acquisition (s 46), and provisions continuing Ombudsman, FOI, and Privacy Act jurisdiction over transferred functions (ss 49-51).\n\nInstruments made under Part 2 are not legislative instruments (s 40). The Lands Acquisition Act 1989 does not apply to Part 2 transfers (s 39).\n\nThe Act primarily affected HIC employees transferred to Medibank Private, contributors to the Medibank Private fund, and any parties whose contracts or legal proceedings had to be novated or transferred."},"issue_detection":{"absurdities":[{"type":"circular_definition","section":"Section 2(5) / Section 6","severity":"medium","reasoning":"Part 2 commences on the fund-transfer day (s.2(2)), yet 'fund-transfer day' is defined in s.6 which is within Part 2. If Part 2 has not commenced, s.6 has no operative effect, yet the commencement of Part 2 depends on the meaning given by s.6. The drafter attempts to patch this by s.2(5) cross-referencing Part 2, but this does not resolve the logical circularity since the Part itself is not in force until that very day.","confidence":0.72,"description":"Circular temporal dependency: Section 2(5) defines 'fund-transfer day' by reference to Part 2 of this Act, specifically section 6. Section 6 defines the fund-transfer day as a day determined by the Minister, but that day must be one when the nominated company is already registered as a health benefits organisation. The commencement of Part 2 itself is triggered by the fund-transfer day (s.2(2)), meaning the definition the commencement provision relies upon exists within the Part that has not yet commenced."},{"type":"impossible_compliance","section":"Section 5(2)(c) / Section 7","severity":"medium","reasoning":"The Act presupposes the existence of a Commission-owned company without providing the legal mechanism for the Commission to create or acquire one. The Commission would need to rely on powers elsewhere (e.g., the Health Insurance Commission Act 1973) to establish the company, but those powers are not referenced or confirmed here. If those powers are doubtful or absent, the precondition for s.5 is impossible to satisfy within this Act's own framework.","confidence":0.65,"description":"Bootstrap paradox in nominating the company: Section 5(2)(c) requires that at the time of declaration, the company must already be 'Commission-owned'. Section 7 defines Commission-owned as all shares being legally and beneficially owned by the Commission. This means the Commission must have already acquired and hold 100% of the shares in a company before the Minister can even declare it to be the nominated company. There is no provision in this Act authorising the Commission to establish or acquire such a company in the first place."},{"type":"self_contradicting","section":"Section 44 / Sections 49, 50, 51","severity":"low","reasoning":"While the drafting technique of deemed status is well understood, the logical tension is real: the Act goes to lengths to say the company is NOT a public authority (s.44), then deems it to BE various forms of public authority for three separate statutes (ss.49-51). Section 44(1) carves out cases where 'a law expressly provides otherwise', which technically resolves the contradiction, but the internal logic of the Act is self-negating and confusing.","confidence":0.78,"description":"Structural contradiction between the nominated company's status as a non-Commonwealth entity and its deemed agency status for accountability purposes. Section 44 declares the nominated company is not a Commonwealth authority, public authority, or agency. Yet sections 49, 50, and 51 deem it to be a 'prescribed authority' under the Ombudsman Act, an 'agency' under the FOI Act, and an 'agency' under the Privacy Act respectively. The Act creates a legal fiction of private status while simultaneously subjecting the entity to public accountability regimes normally reserved for government bodies."},{"type":"impossible_compliance","section":"Section 20(3)(a)","severity":"medium","reasoning":"Contract law requires consent for formation. Section 20(3)(b) and (c) deem contracts to have been 'entered into' by the Commission and the supplier at a specified time, when the supplier has had no opportunity to negotiate or refuse. The Act imposes contractual obligations on a third party by Ministerial fiat. While s.20(7) sets constraints on consideration and obligations, the supplier is bound without consent, which is logically inconsistent with the concept of a contract being 'entered into'.","confidence":0.82,"description":"Section 20 allows the Minister to unilaterally terminate a supplier's contract without compensation (other than under s.46), while simultaneously deeming two new contracts to spring into existence between the same parties. The supplier has no say in the termination of the original contract or the terms of the two replacement contracts, which are set entirely by Ministerial declaration. This is a coercive fiction: a contract is deemed to have been 'entered into' by parties when in fact one party (the supplier) never agreed to it."},{"type":"other","section":"Section 47(3) / Section 47 (missing subsection 4)","severity":"low","reasoning":"The missing subsection (4) suggests either a drafting error or an omitted provision. The orphaned definition of 'Senior Executive Service office' in s.47(5) is defined but never applied in any operative provision, suggesting it was intended to be used in the missing subsection (4). This renders the definition legally meaningless as enacted.","confidence":0.88,"description":"Section 47 jumps from subsection (3) to subsection (5) with no subsection (4). The defined term 'Senior Executive Service office' appears in subsection (5) but is never used anywhere in section 47 or elsewhere in the visible provisions of the Act, making it a definition without purpose."},{"type":"self_contradicting","section":"Section 20(9) and (10)","severity":"low","reasoning":"The drafters were concerned that expanding 'services' to include software licences might have unintended consequences in the broader Commonwealth statute book. The solution adopted—a subsection that says another subsection must be ignored—is a logical curiosity. It is also potentially self-undermining: s.20(10) says s.20(9) is to be disregarded 'in interpreting a law of the Commonwealth (other than this section)'. Section 20(10) is itself part of this section, raising the question of whether s.20(10) directs its own disregard.","confidence":0.75,"description":"Section 20(9) extends the meaning of 'services' to include computer software licence rights 'for the purposes of this section'. Section 20(10) then immediately directs that subsection (9) 'is to be disregarded in interpreting a law of the Commonwealth (other than this section)'. This creates an absurd interpretive island: a meaning of 'services' that exists only for one section of one Act and must be actively ignored everywhere else, including in related provisions of the same Act dealing with the same transfers."},{"type":"other","section":"Section 22(2)(e)","severity":"high","reasoning":"A reference to a non-existent Act is a plain drafting error. 'Workplace Agreement 1996' does not exist as a Commonwealth Act. The Workplace Relations Act 1996 exists and contains a Schedule 7. This error means any employee whose terms and conditions were governed by an 'old IR agreement' under Schedule 7 to the Workplace Relations Act 1996 may not have their terms and conditions captured by s.22(2), leaving a gap in the protection intended by the section.","confidence":0.9,"description":"Section 22(2)(e) references 'an old IR agreement within the meaning given by Schedule 7 to the Workplace Agreement 1996'. There is no Commonwealth Act called the 'Workplace Agreement 1996'. The correct reference appears to be the Workplace Relations Act 1996. This is a reference to a non-existent statute, rendering paragraph (e) legally inoperative."},{"type":"self_contradicting","section":"Section 16(7) / Section 16(9)","severity":"medium","reasoning":"The tension between 'binding on all persons' and revocability at Ministerial discretion is a genuine logical flaw. If a scheme is binding, third parties may incur obligations or change their positions in reliance on it. Revocation without compensation or notice requirements creates a situation where a binding legal instrument can be annulled retroactively as to its practical effects, undermining the very certainty the word 'binding' is meant to convey. Section 46 provides some constitutional safety net but does not resolve the logical contradiction in the Act's own terms.","confidence":0.7,"description":"Section 16(7) states the transfer scheme 'has effect accordingly and is binding on all persons.' Section 16(9) then states the scheme may be varied or revoked at any time before the fund-transfer day. A scheme that is 'binding on all persons' can apparently be unilaterally revoked by the Minister without notice, without compensation, and without any procedural constraint other than the timing limitation. Persons may have acted in reliance on a binding scheme only to find it revoked."}],"contradictions":[{"severity":"low","section_a":"Section 44(1)","section_b":"Section 49(2)(b)","confidence":0.75,"description":"Section 44(1) declares the nominated company is not a Commonwealth authority, public authority, or agency or instrumentality of the Crown. Section 49(2)(b) deems the nominated company to be a 'prescribed authority' within the meaning of the Ombudsman Act 1976—a status that in that Act applies to government bodies. While s.44(1) contains a carve-out for express statutory provisions, the contradiction between the general declaration of private status and the specific deemed public status creates interpretive uncertainty about the company's fundamental legal character."},{"severity":"medium","section_a":"Section 21(4)","section_b":"Section 28(4)","confidence":0.68,"description":"Section 21(4) allows the transfer of an employee to the nominated company to occur either when the nominated company is Commission-owned OR within 18 months after it ceases to be Commission-owned. Section 28(4) uses the identical timing window for re-transfer back to the Commission. This means an employee could be transferred TO the nominated company after it has ceased to be Commission-owned (i.e., after Commonwealth acquisition of shares under s.34), and then re-transferred back—but by that stage the nominated company is a Commonwealth-owned private entity, and the re-transfer provisions assume a relationship between Commission and nominated company that may no longer be operationally coherent."},{"severity":"medium","section_a":"Section 48(1)","section_b":"Section 43(3)","confidence":0.78,"description":"Section 48(1) states that Part 2 does not authorise a Commonwealth record to be transferred except in accordance with the Archives Act 1983. Section 43(3) imposes a mandatory obligation on the Commission to ensure that Ministerial directions to transfer records are complied with. If a record is a Commonwealth record and Archives Act permission has not been obtained (s.48(2)), the Commission faces an impossible compliance situation: it is mandatorily obliged to transfer the record (s.43(3)) but simultaneously prohibited from doing so without Archives permission (ss.48(1)-(2)). The Act provides no mechanism to resolve this conflict."},{"severity":"low","section_a":"Section 22(1)","section_b":"Section 29(1)","confidence":0.82,"description":"Section 22(1) provides that transferred employees are taken to have been engaged on exactly the same terms and conditions as applied immediately before transfer—a parity standard. Section 29(1) provides that re-transferred employees are to be engaged on terms 'not less favourable' than those that applied immediately before re-transfer. The asymmetry is logically inconsistent: an employee transferred from Commission to nominated company gets identical terms, but an employee returned from nominated company to Commission only gets terms that are not less favourable. This means re-transferred employees could receive improved terms, creating an incentive anomaly and unequal treatment within the same transfer regime."},{"severity":"medium","section_a":"Section 40","section_b":"Section 16(7)","confidence":0.8,"description":"Section 40 declares that instruments made under Part 2 are not legislative instruments for the purposes of the Legislation Act 2003. Section 16(7) declares the transfer scheme 'has effect accordingly and is binding on all persons.' A binding instrument of general application that is deliberately excluded from the legislative instruments framework avoids parliamentary scrutiny, disallowance, and sunsetting requirements that would otherwise apply. This creates a logical tension: the instrument has the practical force of legislation (binding on all persons) but is expressly insulated from the accountability mechanisms that apply to legislation."}]},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act narrows the Health Insurance Commission’s institutional role by removing the Medibank Private fund and related business and transferring them into a nominated company (and potentially into Commonwealth share ownership). Mechanically, it replaces Commission ownership, contract counterparties and employer status with a new corporate entity (and later the Commonwealth) while preserving contributor status and employee entitlements (see ss16, 17, 21, 34, 36). This alters the prior integrated structure and reallocates legal, fiscal and operational responsibilities."},"complexity_factors":["Broad automatic vesting mechanics allowing assets, contracts and liabilities to transfer without conveyance or assignment (ss17–19) — creates legal‑title and registration interaction issues.","Detailed staff transfer and re‑transfer regime preserving terms, accruals and continuity while limiting termination payments (ss21–33) — multiple timing windows and cross‑instrument references increase administrative complexity.","Ministerial power to formulate a binding transfer scheme and to split contracts, including limits on supplier compensation and aggregate obligations (ss16, 20) — affects contractual freedom and supplier rights.","Commonwealth acquisition of shares with registration overrides of Corporations Act requirements (s34) — intersects corporate registration law and ownership change mechanics.","Stamp duty and State/Territory tax exemptions for a wide class of ‘designated matters’ (s36) — shifts fiscal incidences and requires coordination with jurisdictions.","Substitution of successors in pending litigation and treatment under FOI, Privacy and Ombudsman regimes (ss41, 49–51) — procedural complexity for ongoing disputes and review rights.","Delegation and joint‑exercise arrangements for transfer functions (s47) — concentrates discretion in mixed executive/agency groups, raising procedural coordination tasks.","Constitutional acquisition‑on‑just‑terms safety valve with compensation liabilities (s46) — creates contingent fiscal exposure and potential litigation.","Non‑application of some general statutes (Lands Acquisition Act) and non‑legislative‑instrument status for many transfer instruments (ss39, 40) — affects oversight and remedies.","Timing constraints tied to the fund‑transfer day and Commission‑owned status (ss6, 7, 21, 28) — sequencing risk for implementation and registration steps."],"plain_english_summary":"This Act moves the Medibank Private health benefits fund, its assets, contracts, liabilities and affected staff out of the Health Insurance Commission into a Minister‑named nominated company, and gives the Commonwealth power to acquire the company’s shares later. The Minister can make vesting and transfer declarations, preserve contributor status and employee entitlements, and exempt related transactions from State/Territory stamp duty. It changes who owns and who legally bears costs and obligations during and after the transfer."},"kimi_summary":{"_metrics":{"completionTokens":557},"content_quality":"ok","complexity_score":7,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose: the structural separation and transfer of Medibank Private from the Health Insurance Commission to a separate corporate entity. While it includes extensive transitional protections and later amendments enabled full privatisation, the core scope has not expanded beyond this privatisation framework."},"complexity_factors":["Multiple interdependent timing mechanisms (fund-transfer day, 18-month windows, 5-year sunset provisions)","Extensive cross-referencing to other Acts (Health Insurance Commission Act 1973, National Health Act 1953, Corporations Act 2001, Workplace Relations Act 1996, Archives Act 1983, etc.)","Bilateral staff transfer provisions (transfer to nominated company AND re-transfer back to Commission)","Conditional commencement provisions tied to another Act (Audit (Transitional and Miscellaneous) Amendment Act 1997)","Complex delegation structure requiring joint exercise by specified officer pairs","Multiple 'savings' provisions preserving existing complaints, FOI requests and privacy investigations across the transition","Detailed contractual splitting mechanism in section 20 with mathematical equivalence requirements"],"plain_english_summary":"This Act privatises **Medibank Private** — Australia's largest private health insurer — by separating it from the government-owned **Health Insurance Commission**.\n\n**What it does:**\n- Creates a new company (the \"nominated company\") to take over Medibank Private's health insurance business\n- Transfers all Medibank Private **assets**, **contracts**, **liabilities** and **staff** from the Commission to this new company\n- Initially, the new company is owned by the Commission — then later, ownership transfers to the **Commonwealth** (effectively making it a government business enterprise)\n- Protects **policyholders** by ensuring their membership continues uninterrupted\n- Protects **employees** by preserving their pay, conditions and accrued benefits when they transfer to the new company\n- Exempts all these transfers from **stamp duty** (state taxes)\n- Allows the Minister to split existing contracts and transfer legal proceedings to the new entity\n\n**Who it affects:**\n- Medibank Private members (3+ million Australians with private health insurance)\n- Commission employees working on Medibank Private\n- The Health Insurance Commission itself\n- The Commonwealth as eventual owner\n\n**Why it matters:**\nThis was the first major step toward Medibank Private's eventual **full privatisation** (completed in 2014). It transformed a government department function into a corporatised entity, laying groundwork for later sale to private investors. The Act carefully manages the transition to avoid disrupting insurance coverage or employee rights."}},"importantCases":[],"_links":{"self":"/api/acts/health-insurance-commission-reform-and-separation-of-functions-act-1997","history":"/api/acts/health-insurance-commission-reform-and-separation-of-functions-act-1997/history","analysis":"/api/acts/health-insurance-commission-reform-and-separation-of-functions-act-1997/analysis","conflicts":"/api/acts/health-insurance-commission-reform-and-separation-of-functions-act-1997/conflicts","importantCases":"/api/acts/health-insurance-commission-reform-and-separation-of-functions-act-1997/important-cases","documents":"/api/acts/health-insurance-commission-reform-and-separation-of-functions-act-1997/documents"}}