Australian National Railways Commission Sale Act 1997

The Act primarily affected:

• The ANRC itself and its employees, as their employment conditions and entitlements were affected by the privatisation.
• Private operators who acquired ANRC assets, including Great Southern Railway (passenger services), Australian Rail Track Corporation (interstate track), and others.
• South Australia and Tasmania, whose state-level rail arrangements with the Commonwealth were restructured.
• Employees and former employees of the Commission, particularly regarding industrial entitlements and succession to employer responsibilities.
• Post-privatisation railway operators who, under Schedule 5, became subject to Commonwealth requirements to provide access for defence and emergency purposes.
• Creditors and counterparties to contracts with the Commission, whose contractual rights and obligations were transferred by ministerial declaration.

For current purposes, the Act is most relevant to:

• Persons asserting claims arising from the Commission's operations (such as occupational injury and disease claims) where the question of which entity is the current respondent depends on succession-in-law declarations made under the Act.
• Operators of the former ANRC network who must grant access for defence and emergency purposes under Schedule 5.

Section 67AD: The Commission must comply with any direction of the Minister for Finance to sell or transfer assets. The direction may specify the manner of sale, price range, marketing agent, or other conditions.

Section 67AZ: The Commission and its Commissioners must give assistance to the Commonwealth and cooperate in the implementation of the Part VA privatisation framework. This obligation was intended to ensure cooperation during the transition.

Schedule 5, item 2: Post-privatisation operators who manage or control a railway previously managed or controlled by the Commission must comply with written notices from the Minister requiring access or priority access for defence and emergency purposes. Failure to comply is not a criminal offence but is a ground for an injunction.

Record-keeping (section 67AZW): The Commonwealth Records Act 1997 applies to certain records transferred as part of the privatisation.

Proceeds (section 67AR): Proceeds of asset transfers must be paid to the Commonwealth.

Minister for Finance: The central figure in the transfer process. The Minister holds the power to:

• Direct the Commission to sell or transfer assets (section 67AD).
• Transfer assets by declaration, with or without individual conveyances (section 67AE).
• Transfer contractual rights and obligations by declaration (section 67AF).
• Transfer liabilities by declaration (section 67AG).
• Assume Commonwealth guaranteed liabilities (section 67AH).
• Declare assets affixed to land to be chattels (Schedule 5, Part 1).
• Sell shares in any sale company (section 67AZN).

Delegation (section 67AZV): The Minister for Finance may delegate powers under Part VA to officers of the Australian Public Service.

Injunctions (sections 67AZD to 67AZH): Courts may grant injunctions (including interim injunctions) to enforce obligations under Part VA, particularly the Commission's obligation to assist and the access obligation in Schedule 5. Normal limitations on granting injunctions do not apply.

Constitutional safety net (section 67AZS): If a transfer of assets under Part VA would constitute an acquisition of property other than on just terms, the Commonwealth must pay reasonable compensation to the affected person. This is the standard constitutional safety net required by section 51(xxxi) of the Constitution.

Minister for access purposes (Schedule 5): The Minister may give written notice to railway operators requiring access or priority access for defence and emergency purposes, specifying the terms of access. The designated agency (typically the Department of Defence) is liable to pay compensation for any resulting loss.

The Act does not create criminal offences for most breaches. Enforcement is primarily through:

• Injunctions under sections 67AZD to 67AZH for breach of Part VA obligations (including failure by the Commission or a transferred operator to comply with directions or assistance obligations).
• Civil remedies for breach of contractual obligations after transfer.
• Compensation claims under Schedule 5 item 3 for loss resulting from mandatory railway access.
• Constitutional compensation under section 67AZS for acquisitions without just terms.

The Schedule 5 access obligation is specifically stated not to be an offence, but failure to comply is grounds for an injunction.

Phased commencement: Section 2 set out a complex commencement schedule:

• Most of the Act commenced on Royal Assent.
• Items 7 to 10 of Schedule 3 (South Australian provisions) required SA ministerial agreement.
• Item 11 of Schedule 3 (Tasmanian provision) required Tasmanian ministerial agreement.
• The remaining Schedule 3 and 4 items could not commence until both the SA and Tasmanian proclamations had been made.

Transfer process: Under Part VA:

1. The Minister for Finance directed the Commission to sell or transfer specified assets.
2. Alternatively, the Minister declared a transfer of assets by writing, published in the Gazette within 14 days.
3. The declaration had immediate self-executing effect without individual conveyances.
4. Proceeds were paid to the Commonwealth.

Stamp duty exemption (section 67AS): Transfers under Part VA were exempt from stamp duty and other State and Territory taxes on transfers, a significant saving for large-scale asset transfers.

Successor-in-law effect: Where the Minister declared that a person is the Commission's successor in law in relation to an asset, liability, or contractual right, that effect attached immediately upon the declaration taking effect, binding all parties and affecting all instruments and registers.

Australian National Railways Commission Act 1983: The primary Act into which Part VA was inserted. Schedule 3 ultimately provided for the repeal of that Act once all transfer steps had been completed.

Railways Agreement South Australia Act 1975 (Cth): Section 67AZR allowed the Minister to enter into certain agreements with States regarding arrangements for the transferred railways, relevant to SA interstate and intrastate rail.

Lands Acquisition Act 1989 (Cth) (section 67AZL): The Act expressly excluded the Lands Acquisition Act from applying to Part VA transfers, removing a potential complication in the transfer of railway land.

Australian Land Transport Development Act 1988 (section 67AZQ): The operation of Part VA was stated not to affect ALTDA arrangements, preserving the regulatory framework for land transport.

Loans Securities Act 1919 (section 67AX): Applied to the financing of the Commonwealth's assumption of Commission liabilities.

Trade Practices Act (now Competition and Consumer Act): Schedule 4 amendments adjusted the application of competition law to the post-privatisation entities.

State and territory legislation: Transfers under Part VA were expressed to be effective notwithstanding any inconsistency with state or territory law, relying on Commonwealth constitutional supremacy.

Successor-in-law liability for legacy claims: The self-executing transfer of successor-in-law status is the key gotcha for post-privatisation entities. As the Commonwealth v TransAdelaide case demonstrates, disputes about who is the successor in law to the ANRC for dust disease and occupational injury claims arising from pre-privatisation employment continue to arise decades after the transfers. The answer depends on the specific terms of the relevant ministerial declaration, not on general assumptions about corporate succession.

SA and Tasmanian commencement conditions: Some items in Schedules 3 and 4 were conditional on state ministerial agreement. Practitioners advising on matters arising from SA or Tasmanian railway operations should check whether the relevant commencement conditions were met and the precise dates of commencement.

Source text duplication: The source text for this Act in the TrackLaw database is ~692,000 chars but the unique content is approximately 57,000 chars. Analysis is based on the unique content block.

Commonwealth guaranteed liabilities become Commonwealth liabilities: Where the Minister declared Commission liabilities as Commonwealth guaranteed liabilities and then transferred them to the Commonwealth (sections 67AH and 67AU), the Commission ceased to be liable. Claims against successor entities that were purportedly assigned those liabilities may need to trace through the specific declaration chain.

Example 1 - Legacy dust disease claim: A former ANRC employee alleges an occupational disease contracted during service on the national rail network before privatisation. The question of who bears employer liability depends on which entity holds successor-in-law status for the Commission's employment liabilities, as determined by the ministerial declarations made under section 67AG or 67AH. The Commonwealth v TransAdelaide case ([2001] NSWCA 52) is an example of how these succession questions were litigated.

Example 2 - Defence access to privatised rail: The federal government, facing a national emergency, issues a notice under Schedule 5 item 2 to the operator of the former Adelaide-Darwin rail line (the Ghan route) requiring priority access for emergency supplies. The operator must comply. If the operator suffers financial loss as a result, they may claim compensation from the Commonwealth under item 3 of Schedule 5.

Example 3 - Tax exemption on transfer: At the time of the privatisation, any asset transferred by ministerial declaration under section 67AE was exempt from state stamp duty and other transfer taxes by operation of section 67AS. This was critical for transferring large parcels of railway land and rolling stock.

Example 4 - Contractual succession: A freight customer had a long-term haulage contract with the ANRC. After the Minister declared that the Commission's rights and obligations under the contract are transferred to a private operator under section 67AF, the customer must deal with the private operator and cannot continue to deal with the Commission as the contracting party.