Schedule 5Miscellaneous provisions

# Schedule 5—Miscellaneous provisions Part 1—Certain assets not to be fixtures 1 Certain assets not to be fixtures (1) The Minister for Finance may, by written notice, declare that specified assets that are affixed to land and that are disposed of by the Commission or by the Commonwealth under Part VA of the Australian National Railways Commission Act 1983 are taken, for all purposes, to be separate assets being chattels personal and not fixtures. Note: An asset may be specified by name, by inclusion in a specified class or in any other way. (2) The declaration has effect accordingly. Part 2—Access to railways for defence‑related purposes etc. 2 Access to railways for defence‑related purposes and for emergency or disaster relief (1) The Minister may, by written notice given to a person who manages or controls a railway previously managed or controlled by the Commission: (a) require that access be given to specified kinds of railway services for specified kinds of defence‑related purposes; or (b) require that priority of access be given to specified kinds of railway services for specified kinds of defence‑related purposes. (2) The manner in which that access, or priority of access, is to be given is to be set out in the notice. (3) Subject to item 3, the terms and conditions on which that access, or priority of access, is to be given are to be set out in the notice. (4) A person must comply with a notice given to it under subitem (1). (5) A contravention of subitem (4) is not an offence. However, a contravention of subitem (4) is a ground for obtaining an injunction. (6) In addition to other methods of giving a notice, a notice under subitem (1) may be given by facsimile transmission. (7) In addition to its effect apart from this subitem, this item has the effect it would have if each reference to a person who manages or controls a railway previously managed or controlled by the Commission were, by express provision, confined to such a person that is a constitutional corporation. (8) In this item: Commission means the Australian National Railways Commission. railway service means a service provided in the course of conducting or managing a railway, and includes the use of facilities that are used for those purposes. defence‑related purpose means a purpose related to any of the following: (a) the defence of Australia; (b) the operation of the Australian Defence Force in connection with the defence of Australia; (c) the transport of the armed forces of a foreign country in connection with the defence of Australia; (d) the operation of the Australian Defence Force in connection with international humanitarian aid or United Nations peace‑keeping operations; (e) the management of an emergency or a disaster (whether natural or otherwise), where that management involves the Australian Defence Force. 3 Compensation for access to railways for defence‑related purposes and for emergency or disaster relief Designated agency in relation to a notice (1) A notice under subitem 2(1) must specify a Commonwealth agency as the designated agency in relation to the notice. (2) If a notice under subitem 2(1) relates to either of the following purposes: (a) the defence of Australia; (b) the operation of the Australian Defence Force in connection with the defence of Australia; the notice must specify the Department of Defence as the designated agency in relation to the notice. (3) If a notice under subitem 2(1) relates to the management of an emergency or a disaster (whether natural or otherwise), the notice may specify: (a) the Department of Defence; or (b) any other Commonwealth agency that is involved in the management of the emergency or disaster; as the designated agency in relation to the notice. Liability for loss or damage (4) If a notice under subitem 2(1) is given to a person and that person, or another person contracted, licensed or otherwise acting for that person in the operation of the railway, suffers loss or damage in consequence of the giving of access, or the giving of priority of access, in accordance with the notice the Commonwealth is liable to pay to the person who suffers the loss or damage an amount equal to the loss or damage. (5) If: (a) the person who suffers the loss or damage; and (b) the head of the designated agency in relation to the notice (on behalf of the Commonwealth); do not agree on the amount of loss or damage mentioned in subitem (4), the person may recover the amount of the loss or damage by action against the Commonwealth in a court of competent jurisdiction. (6) In determining the amount of any loss or damage mentioned in subitem (4), regard must be had to anything done in mitigation of the loss or damage (including any remedial work). (7) A payment under subitem (4) or (5) is to be made out of amounts appropriated by the Parliament for the purposes of the designated agency in relation to the notice. Compensation—constitutional safety‑net (8) If: (a) apart from this item, the operation of item 2 would result in the acquisition of property from a person otherwise than on just terms; and (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution; the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition. (9) If the Commonwealth and the person do not agree on the amount of the compensation mentioned in subitem (8), the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. Section 70 of the Defence Act 1903 (10) This item has effect despite anything in section 70 of the Defence Act 1903. Definitions (11) In this item: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. Commonwealth agency means: (a) a Department; or (b) an agency or instrumentality of the Commonwealth. designated agency, in relation to a notice, means the Commonwealth agency specified in the notice as the designated agency in relation to the notice. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.