Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011

The Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011 (No. 152, 2011) is a transitional and consequential statute designed to facilitate the establishment of the Australian Renewable Energy Agency (ARENA). The primary function of this Act is to provide a orderly legal mechanism to consolidate several distinct renewable energy funding programs, advisory bodies, and corporate structures into a single statutory authority. By managing the transfer of assets, liabilities, and ongoing contractual arrangements, the Act ensures continuity of administration for substantial public funding initiatives in the renewable energy sector.

Mechanically, the Act accomplishes this consolidation through several key legislative changes. First, under Schedule 1, Part 1, it repeals the Australian Centre for Renewable Energy Act 2010 in its entirety. This repeal formally dissolves the Australian Centre for Renewable Energy (ACRE) Board and terminates its statutory advisory framework. Second, under Schedule 1, Part 2, it amends the Clean Energy Regulator Act 2011 to include ARENA within the information-sharing provisions of section 49. This amendment permits the Clean Energy Regulator to disclose protected information to ARENA, facilitating data integration and administrative alignment between the two agencies.

Third, Schedule 2 of the Act establishes a comprehensive transitional framework to transfer assets, liabilities, and contractual funding agreements from two distinct sources to ARENA. These sources are the Commonwealth itself (in respect of programs previously administered by the Department of Resources, Energy and Tourism) and Australian Solar Institute Limited (ASI Limited), a Commonwealth-owned corporate entity. The Act specifies two temporal milestones for these transfers, defined as the "first transition time" and the "second transition time".

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Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011

No. 152, 2011

An Act to deal with consequential and transitional matters in connection with the Australian Renewable Energy Agency Act 2011, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Repeal and consequential amendments

Part 1—Repeal of the Australian Centre for Renewable Energy Act 2010

Australian Centre for Renewable Energy Act 2010

Part 2—Consequential amendments

Clean Energy Regulator Act 2011

Schedule 2—Transitional provisions

Part 1—Preliminary

Part 2—Transfer of assets and liabilities

Division 1—Transfer from the Commonwealth to ARENA

Division 2—Transfer from ASI Limited to ARENA and the Commonwealth

Division 3—General provisions

Part 3—Office holders and staff

Division 1—ACRE Board

Division 2—Office holders and staff of ASI Limited

Part 4—Instruments, legal proceedings and records

Division 1—The Commonwealth and the ACRE Board

Division 2—ASI Limited

Part 5—Annual reports, returns etc.

Part 6—Appointment of first CEO of ARENA

Part 7—Other transitional matters

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Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011

No. 152, 2011

An Act to deal with consequential and transitional matters in connection with the Australian Renewable Energy Agency Act 2011, and for related purposes

[Assented to 4 December 2011]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 4 December 2011
1. Schedule 1, Part 1 At the same time as the Australian Renewable Energy Agency Act 2011 commences. 1 July 2012
1. Schedule 1, Part 2 The later of:(a) immediately after the commencement of section 3 of the Clean Energy Regulator Act 2011; and(b) immediately after the commencement of the Australian Renewable Energy Agency Act 2011.However, the provision(s) do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.
1. Schedule 2 The later of:(a) the day this Act receives the Royal Assent; and(b) the day the Australian Renewable Energy Agency Act 2011 receives the Royal Assent.However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 4 December 2011

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Repeal and consequential amendments

Part 1—Repeal of the Australian Centre for Renewable Energy Act 2010

Australian Centre for Renewable Energy Act 2010

1 The whole of the Act

Repeal the Act.

Part 2—Consequential amendments

Clean Energy Regulator Act 2011

2 After paragraph 49(1)(u)

Insert:

(ua) the Australian Renewable Energy Agency;

Schedule 2—Transitional provisions

Part 1—Preliminary

1 Definitions

(1) In this Schedule:

ACRE Act means the Australian Centre for Renewable Energy Act 2010.

ACRE Board means the Australian Centre for Renewable Energy Board established by the ACRE Act.

agreement includes a contract or deed.

application, in relation to financial assistance, includes an expression of interest or proposal.

ARENA has the same meaning as in the ARENA Act.

ARENA Act means the Australian Renewable Energy Agency Act 2011.

ARENA Board means the Board of ARENA.

ARENA’s money has the same meaning as in the ARENA Act.

ASI Limited means Australian Solar Institute Limited (ACN 138 300 688).

ASI Limited officers: see item 18.

asset means:

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

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

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

exempt matter: see item 14.

financial assistance means a grant, or any other kind of financial assistance.

first transition time means the commencement of the ARENA Act.

instrument:

(a) includes:

(i) an agreement or undertaking; and

(ii) a notice, authority, order or instruction; and

(iii) an instrument made under an Act or regulations; but

(b) does not include:

(i) an Act; or

(ii) instruments made under this Act.

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

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

liability means any liability, duty or obligation, whether actual, contingent or prospective.

second transition time means:

(a) the start of 1 January 2013 (unless paragraph (b) applies); or

(b) if the Minister determines an earlier day under subitem (2)—the start of that earlier day.

Secretary means the Secretary of the Department.

transferred ASI Limited funding agreements: see item 7.

transferred Commonwealth funding agreements: see item 2.

(2) The Minister may, by legislative instrument, determine a day for the purpose of paragraph (b) of the definition of second transition time in subitem (1).

Part 2—Transfer of assets and liabilities

Division 1—Transfer from the Commonwealth to ARENA

2 The transferred Commonwealth funding agreements

(1) The transferred Commonwealth funding agreements are:

(a) any agreements to which the Commonwealth was a party, before the first transition time, that provide for financial assistance under or from any of the following:

(i) the Solar Flagships Program;

(ii) the Renewable Energy Demonstration Program;

(iii) the Renewable Energy Venture Capital Fund;

(iv) the Emerging Renewables Program;

(v) the Geothermal Drilling Program;

(vi) the Second Generation Biofuels Research and Development Program;

(vii) any other programs or initiatives specified by the Minister under subitem (2); and

(b) any agreements to which the Commonwealth was a party, before the first transition time, that provide for financial assistance, for solar energy projects, from the Low Emissions Technology Demonstration Fund; and

(c) any other agreements to which the Commonwealth was a party, before the first transition time, that provide for financial assistance for solar energy projects known as ACRE solar projects; and

(d) any other agreements to which the Commonwealth was a party, before the first transition time, that are specified by the Minister under subitem (2).

(2) The Minister may, by legislative instrument:

(a) specify programs or initiatives for the purpose of subparagraph (1)(a)(vii); or

(b) specify agreements for the purpose of paragraph (1)(d).

3 Assets and liabilities under transferred Commonwealth funding agreements: transfer to ARENA

(1) At the first transition time, the assets and liabilities of the Commonwealth, under the transferred Commonwealth funding agreements, cease to be assets and liabilities of the Commonwealth and become assets and liabilities of ARENA, without any conveyance, transfer or assignment. ARENA becomes the successor in law in relation to those assets and liabilities.

Note: For other provisions about the transferred Commonwealth funding agreements, see Division 1 of Part 4.

(2) To avoid doubt, ARENA’s money may be applied in discharging liabilities to which subitem (1) applies.

4 ARENA’s functions include administering transferred Commonwealth funding agreements

From the first transition time, ARENA’s functions under the ARENA Act are taken to include administering the transferred Commonwealth funding agreements.

5 Dealing with undecided applications

(1) This item applies if:

(a) an application was made before the first transition time for financial assistance under or from a program or initiative referred to in paragraph 2(1)(a); and

(b) by the first transition time, the application has not either:

(i) resulted in a transferred Commonwealth funding agreement being entered into; or

(ii) been refused.

(2) After the first transition time:

(a) the Commonwealth is not required to take any action in relation to the application; and

(b) ARENA may, but is not required to, treat the application as if it were an application for financial assistance under the ARENA Act.

6 MOU with Geoscience Australia

Application

(1) This item applies to the Memorandum of Understanding (the MOU) for the Provision of Spatial Information for Solar Resource Mapping Relating to High Solar Prospectivity Regions and Expansion of the Solar Observation Network, entered into on 18 November 2010 between:

(a) the Commonwealth of Australia as represented by the Department of Resources, Energy and Tourism; and

(b) the Commonwealth of Australia as represented by Geoscience Australia.

Effect of MOU

(2) Subject to this item, the MOU:

(a) is taken to be a transferred Commonwealth funding agreement; and

(b) has effect, after the first transition time, as if it were a contract, for the provision of financial assistance in accordance with the terms of the MOU, entered into between:

(i) ARENA, as the provider of the assistance; and

(ii) the Commonwealth, as represented by Geoscience Australia, as the receiver of the assistance.

Provisions of this Schedule that don’t apply to the transferred MOU

(3) The following provisions of this Schedule do not apply in relation to the MOU as it has effect because of subitem (2) (the transferred MOU):

(a) item 3;

(b) the provisions of Division 1 of Part 4.

Application of ARENA’s money

(4) To avoid doubt, ARENA’s money may be applied in discharging liabilities under the transferred MOU.

References in transferred MOU

(5) References in the transferred MOU to the Department of Resources, Energy and Tourism (or RET) have effect as if they were references to ARENA.

Transfer of custody of records or documents

(6) Any of the following that are in the custody of the Commonwealth (otherwise than as represented by Geoscience Australia) are, after the first transition time, to be transferred into the custody of ARENA:

(a) the MOU;

(b) documents or records relating to the administration of the MOU.

(7) Section 20 of the Commonwealth Authorities and Companies Act 1997 applies in relation to accounting records transferred to ARENA under subitem (6) as if the records were records of ARENA.

Power to modify MOU

(8) At any time before 1 August 2012, the Minister may, for the purpose of ensuring the effective operation of the transferred MOU as a contract between ARENA and the Commonwealth, determine that the transferred MOU has effect subject to specified modifications. A determination must be in writing and has effect in accordance with its terms.

(9) A determination under subitem (8) is not a legislative instrument.

Parties may vary or terminate transferred MOU

(10) This item does not, by implication, prevent ARENA and the Commonwealth from varying the transferred MOU (including as modified under subitem (8)) or terminating it.

Division 2—Transfer from ASI Limited to ARENA and the Commonwealth

7 The transferred ASI Limited funding agreements

The transferred ASI Limited funding agreements are any agreements to which ASI Limited was a party, before the second transition time, that provide for financial assistance under a program or initiative administered by ASI Limited.

8 Assets and liabilities under transferred ASI Limited funding agreements: transfer to ARENA

(1) At the second transition time, the assets and liabilities of ASI Limited, under the transferred ASI Limited funding agreements, cease to be assets and liabilities of ASI Limited and become assets and liabilities of ARENA, without any conveyance, transfer or assignment. ARENA becomes the successor in law in relation to those assets and liabilities.

Note: For other provisions about the transferred ASI Limited funding agreements, see Division 2 of Part 4.

(2) To avoid doubt, ARENA’s money may be applied in discharging liabilities to which subitem (1) applies.

9 ARENA’s functions include administering transferred ASI Limited funding agreements

From the second transition time, ARENA’s functions under the ARENA Act are taken to include administering the transferred ASI Limited funding agreements.

10 Other ASI Limited assets and liabilities: transfer to Commonwealth

At the second transition time, the assets and liabilities of ASI Limited, other than those to which subitem 8(1) applies, cease to be assets and liabilities of ASI Limited and become assets and liabilities of the Commonwealth, without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to those assets and liabilities.

11 Dealing with undecided applications

(1) This item applies if:

(a) an application was made before the second transition time for financial assistance under or from a program or initiative referred to in item 7; and

(b) by the second transition time, the application has not either:

(i) resulted in a transferred ASI Limited funding agreement being entered into; or

(ii) been refused.

(2) After the second transition time:

(a) neither ASI Limited nor the Commonwealth is required to take any action in relation to the application; and

(b) ARENA may, but is not required to, treat the application as if it were an application for financial assistance under the ARENA Act.

Division 3—General provisions

12 Certificates relating to vesting of land

(1) This item applies if:

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

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

(i) is signed by the Minister; and

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

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

(2) The land registration official may:

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

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

(3) A certificate made under subitem (1) is not a legislative instrument.

13 Certificates for vesting of assets other than land

(1) This item applies if:

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

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

(i) is signed by the Minister; and

(ii) identifies the asset; and

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

(2) The assets official may:

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

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

(3) A certificate made under subitem (1) is not a legislative instrument.

14 Exemption from stamp duty and other State or Territory taxes

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

(2) An exempt matter is:

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

(b) the operation of this Schedule (including regulations made for the purpose of this Schedule) in any other respect.

(3) The Minister may certify in writing:

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

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

(4) A certificate made under subitem (3) is not a legislative instrument.

15 Certificates taken to be authentic

A document that appears to be a certificate made or issued under item 12, 13 or 14:

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

(b) is taken to have been properly given;

unless the contrary is established.

Part 3—Office holders and staff

Division 1—ACRE Board

16 No transfer of appointment of ACRE Board members

Nothing in this Schedule produces the result that the appointment of a member of the ACRE Board has effect as if it were an appointment of the person in relation to ARENA.

Division 2—Office holders and staff of ASI Limited

17 Termination of officer holders of ASI Limited

(1) Before the second transition time, the Minister may, in writing:

(a) terminate the appointment of any director of ASI Limited; and

(b) terminate any agreement or other instrument relating to that appointment; and

(2) An instrument made under subitem (1) has effect accordingly, and takes effect immediately before the second transition time.

(3) An instrument made under subitem (1) is not a legislative instrument.

18 No transfer of appointment, engagement or employment of ASI Limited office holders or staff

(1) Nothing in this Schedule produces the result that the appointment, engagement or employment of an ASI Limited officer has effect as if it were an appointment, engagement or employment of the person in relation to ARENA or the Commonwealth.

Note: Determinations under section 72 of the Public Service Act 1999 may provide for employees of ASI Limited to become engaged as APS employees in a specified Agency.

(2) The following are ASI Limited officers:

(a) directors of ASI Limited;

(b) employees of ASI Limited.

(3) To avoid doubt, if a person ceases to be an employee of ASI Limited (and becomes an APS employee) because of a determination under section 72 of the Public Service Act 1999, the person is not entitled to receive any payment or other benefit merely because he or she ceased to be an employee of ASI Limited.

19 Accrued entitlements etc. of ASI Limited employees who become APS employees

Persons to whom this item applies

(1) This item applies to a person if:

(a) immediately before the second transition time, the person was an employee of ASI Limited; and

(b) because of a determination under section 72 of the Public Service Act 1999, the person becomes an APS employee at the second transition time.

Preservation of accrued entitlements

(2) The person is taken to have accrued an entitlement to benefits, in connection with becoming an APS employee, that is equivalent to the entitlement that the person had as an employee of ASI Limited immediately before the second transition time.

Continuity of service

(3) The service of the person as an APS employee is taken, for all purposes, to be continuous with his or her service as an employee of ASI Limited.

Long service leave

(4) For the purposes of the Long Service Leave (Commonwealth Employees) Act 1976, the person’s service before the second transition time as an employee of ASI Limited is to be treated, at and after that time, as if it had been service by the person as an APS employee.

Maternity leave

(5) For the purposes of the Maternity Leave (Commonwealth Employees) Act 1973, the person’s service before the second transition time as an employee of ASI Limited is to be treated, at and after that time, as if it had been service by the person as an APS employee.

Part 4—Instruments, legal proceedings and records

Division 1—The Commonwealth and the ACRE Board

20 References in instruments to the Commonwealth or the ACRE Board

(1) This item applies to an instrument that:

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

(b) contains a reference to the Commonwealth or the ACRE Board.

(2) If the instrument:

(a) is a transferred Commonwealth funding agreement; or

(b) otherwise relates to an asset or liability that, as a result of the operation of item 3, becomes an asset or liability of ARENA;

then the reference to the Commonwealth or the ACRE Board has effect, at and after the first transition time, as if it were a reference to ARENA.

(3) If the instrument contains a reference to the ACRE Board and subitem (2) does not apply, then the reference to the ACRE Board has effect, at and after the first transition time, as if it were a reference to the Commonwealth.

(4) This item does not, by implication, prevent the instrument from being varied or terminated after the first transition time.

21 Legal proceedings of the Commonwealth or the ACRE Board

(1) This item applies to any proceedings:

(a) that were pending in any court or tribunal immediately before the first transition time; and

(b) to which the Commonwealth or the ACRE Board was a party.

(2) If the proceedings relate to:

(a) a transferred Commonwealth funding agreement; or

(b) an asset or liability that, as a result of the operation of item 3, becomes an asset or liability of ARENA;

then ARENA is, at and after the first transition time, taken to be substituted for the Commonwealth or the ACRE Board as a party to the proceedings.

(3) If the ACRE Board is a party to the proceedings and subitem (2) does not apply, then the Commonwealth is, at and after the first transition time, taken to be substituted for the ACRE Board as a party to the proceedings.

22 Transfer of custody of records or documents of the Commonwealth or the ACRE Board

(1) This item applies to a record or document that, immediately before the first transition time, was in the custody of the Commonwealth or the ACRE Board.

(2) If the record or document:

(a) is a transferred Commonwealth funding agreement; or

(b) otherwise relates to an asset or liability that, as a result of the operation of item 3, becomes an asset or liability of ARENA;

then, after the first transition time, the record or document is to be transferred into the custody of ARENA.

(3) If the record or document was in the custody of the ACRE Board and subitem (2) does not apply, then, after the first transition time, the record or document is to be transferred into the custody of the Commonwealth.

(4) Section 20 of the Commonwealth Authorities and Companies Act 1997 applies in relation to accounting records transferred to ARENA under this item as if the records were records of ARENA.

Division 2—ASI Limited

23 References in instruments to ASI Limited

(1) This item applies to an instrument that:

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

(b) contains a reference to ASI Limited.

(2) If the instrument:

(a) is a transferred ASI Limited funding agreement; or

(b) otherwise relates to an asset or liability that, as a result of the operation of item 8, becomes an asset or liability of ARENA;

then the reference to ASI Limited has effect, at and after the second transition time, as if it were a reference to ARENA.

(3) If subitem (2) does not apply to the instrument, then the reference to ASI Limited has effect, at and after the second transition time, as if it were a reference to the Commonwealth.

(4) This item does not, by implication, prevent the instrument from being varied or terminated after the second transition time.

24 Legal proceedings of ASI Limited

(1) This item applies to any proceedings:

(a) that were pending in any court or tribunal immediately before the second transition time; and

(b) to which ASI Limited was a party.

(2) If the proceedings relate to:

(a) a transferred ASI Limited funding agreement; or

(b) an asset or liability that, as a result of the operation of item 8, becomes an asset or liability of ARENA;

then ARENA is, at and after the second transition time, taken to be substituted for ASI Limited as a party to the proceedings.

(3) If subitem (2) does not apply to the proceedings, then the Commonwealth is, at and after the second transition time, taken to be substituted for ASI Limited as a party to the proceedings.

25 Transfer of custody of records or documents of ASI Limited

(1) This item applies to a record or document that, immediately before the second transition time, was in the custody of ASI Limited.

(2) If the record or document:

(a) is a transferred ASI Limited funding agreement; or

(b) otherwise relates to an asset or liability that, as a result of the operation of item 8, becomes an asset of ARENA;

then, after the second transition time, the record or document is to be transferred into the custody of ARENA.

(3) If subitem (2) does not apply to the record or document, then, after the second transition time, the record or document is to be transferred into the custody of the Commonwealth.

(4) Section 20 of the Commonwealth Authorities and Companies Act 1997 applies in relation to accounting records transferred to ARENA under this item as if the records were records of ARENA.

Part 5—Annual reports, returns etc.

26 Final annual report on ACRE Board

(1) As soon as practicable after the first transition time, the ARENA Board must prepare, and give to the Minister, a report on the operations of the ACRE Board during the financial year that ended on 30 June 2012.

(2) The report must include details of any written directions given to the ACRE Board by the Minister under subsection 6(1) of the ACRE Act during the year.

(3) The report is taken to be a periodic report for the purpose of section 34C of the Acts Interpretation Act 1901.

(4) The Secretary must provide reasonable assistance to the ARENA Board for the purpose of preparing the report. This may, for example, include allowing the ARENA Board appropriate access to records, documents or information relating to the activities of the ACRE Board.

27 Reports, returns etc. of ASI Limited

(1) This item applies to a report, return or other document if, at a time (the relevant time) that is immediately before the second transition time, or that is, or is after, the second transition time:

(a) ASI Limited is required, by or under a law of the Commonwealth, to prepare or lodge the report, return or document; or

(b) any of the following persons is required, by or under a law of the Commonwealth, to prepare or lodge the report, return or document in relation to ASI Limited:

(i) a director or former director of ASI Limited;

(ii) any other officer or member of the staff, or former officer or member of the staff, of ASI Limited.

(2) The ARENA Board, is instead required, at the relevant time, to prepare or lodge the report, return or document.

(3) The Secretary must provide reasonable assistance to the ARENA Board for the purpose of preparing the report, return or document. This may, for example, include allowing the ARENA Board appropriate access to records, documents or information relating to the activities of ASI Limited.

28 ARENA’s annual report to include particulars of assistance provided under transferred funding agreements

In addition to the particulars required by section 70 of the ARENA Act, an annual report referred to in that section must also include, for each person to whom financial assistance has been provided under a transferred Commonwealth funding agreement, or a transferred ASI Limited funding agreement, during the financial year covered by the report:

(a) the name of the person; and

(b) the nature and amount of the financial assistance provided; and

(c) the renewable energy technology or technologies to which the assistance relates (if the assistance relates to one or more particular renewable energy technologies).

Part 6—Appointment of first CEO of ARENA

29 Appointment of first CEO of ARENA

(1) This item applies if, before the first transition time:

(a) the Minister appoints persons to be members of the ARENA Board pursuant to section 4 of the Acts Interpretation Act 1901; and

(b) a majority of the following persons make a recommendation to the Minister that a particular person (the recommended candidate) be appointed as the Chief Executive Officer of ARENA:

(i) the persons appointed as mentioned in paragraph (a);

(ii) the Secretary.

(2) The Minister may, before the first transition time, appoint the recommended candidate as the Chief Executive Officer of ARENA, as if:

(a) section 52 of the ARENA Act had commenced; and

(b) the recommendation were a recommendation by the ARENA Board.

(3) The Minister may also, before the first transition time, make a determination of terms and conditions in relation to the appointment as if section 60 of the ARENA Act had commenced.

(4) The appointment, and any such determination of terms and conditions, take effect at the first transition time.

Part 7—Other transitional matters

30 Director’s obligations—ASI Limited’s books

Subsection 601AD(5) of the Corporations Act 2001 has effect in relation to ASI Limited’s books (within the meaning of that Act), after the second transition time, as if the reference in that subsection to the directors of the company immediately before deregistration were:

(a) a reference to ARENA, to the extent that the books are records or documents that are transferred into ARENA’s custody under item 25; and

(b) a reference to the Commonwealth, to the extent that the books are records or documents that are transferred into the Commonwealth’s custody under that item.

31 Compensation for acquisition of property

(1) If the operation of this Schedule would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(3) In this item:

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

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

32 Delegation by Minister

(1) Subject to subitem (2), the Minister may, in writing, delegate all or any of his or her powers and functions under this Schedule to:

(a) the Secretary of the Department; or

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

(2) The Minister cannot delegate his or her powers and functions under any of the following provisions of this Schedule:

(a) subitem 1(2);

(b) subitem 2(2);

(d) subitems 29(2) and (3).

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

33 Delegation by ARENA and ARENA Board

(1) Any functions or powers that ARENA has because of this Schedule may be delegated, or subdelegated, under the ARENA Act as if they were powers or functions of ARENA under that Act.

(2) Any functions or powers that the ARENA Board has because of this Schedule may be delegated, or subdelegated, under the ARENA Act as if they were powers or functions of the ARENA Board under that Act.

34 Regulations

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

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

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

(2) The regulations may prescribe matters of a transitional nature (including prescribing any saving or application provisions) relating to:

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

(b) the enactment of this Act or the Australian Renewable Energy Agency Act 2011.

(3) The regulations may provide that provisions of this Schedule are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified.

(4) Subitems (2) and (3) do not limit subitem (1).

[Minister’s second reading speech made in—

House of Representatives on 12 October 2011

Senate on 2 November 2011]

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Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011

No. 152, 2011

An Act to deal with consequential and transitional matters in connection with the Australian Renewable Energy Agency Act 2011, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Repeal and consequential amendments

Part 1—Repeal of the Australian Centre for Renewable Energy Act 2010

Australian Centre for Renewable Energy Act 2010

Part 2—Consequential amendments

Clean Energy Regulator Act 2011

Schedule 2—Transitional provisions

Part 1—Preliminary

Part 2—Transfer of assets and liabilities

Division 1—Transfer from the Commonwealth to ARENA

Division 2—Transfer from ASI Limited to ARENA and the Commonwealth

Division 3—General provisions

Part 3—Office holders and staff

Division 1—ACRE Board

Division 2—Office holders and staff of ASI Limited

Part 4—Instruments, legal proceedings and records

Division 1—The Commonwealth and the ACRE Board

Division 2—ASI Limited

Part 5—Annual reports, returns etc.

Part 6—Appointment of first CEO of ARENA

Part 7—Other transitional matters

Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011

No. 152, 2011

An Act to deal with consequential and transitional matters in connection with the Australian Renewable Energy Agency Act 2011, and for related purposes

[Assented to 4 December 2011]

The Parliament of Australia enacts:

The practical operation of the Act depends on several core statutory concepts and definitions set out in Schedule 2, Part 1. Understanding these concepts is essential for analyzing how the transition of funding portfolios is executed and how ongoing legal obligations are preserved.

The "first transition time" is defined as the commencement of the Australian Renewable Energy Agency Act 2011. This milestone governs the immediate transfer of Commonwealth-administered programs. The "second transition time" is defined as either the start of 1 January 2013 or an earlier day determined by the Minister by legislative instrument. This dual-stage timeline allowed the Commonwealth to stagger the operational integration of departmentally managed programs separate from the wind-up of the corporatized ASI Limited.

The "transferred Commonwealth funding agreements" are identified in Schedule 2, Item 2. These encompass any agreements to which the Commonwealth was a party before the first transition time that provided financial assistance under several prominent federal initiatives. These programs include the Solar Flagships Program, the Renewable Energy Demonstration Program, the Renewable Energy Venture Capital Fund, the Emerging Renewables Program, the Geothermal Drilling Program, and the Second Generation Biofuels Research and Development Program.

The definition also captures agreements under the Low Emissions Technology Demonstration Fund relating to solar energy projects, specific solar energy projects known as ACRE solar projects, and any other agreements specified by the Minister via legislative instrument. Under Item 4, ARENA's statutory functions are explicitly expanded to include the ongoing administration of these transferred agreements.

The "transferred ASI Limited funding agreements" are defined under Item 7 as any agreements to which ASI Limited was a party before the second transition time that provided financial assistance under programs administered by that company. By separating these from other corporate assets and liabilities (which transferred to the Commonwealth under Item 10), the Act isolates active funding commitments for transfer to ARENA while routing residual corporate liabilities, such as tenancy leases or general commercial contracts, back to the Commonwealth.

The terms "asset" and "liability" are drafted with maximum breadth under Item 1. An "asset" includes any legal or equitable estate or interest in real or personal property, whether actual, contingent, or prospective, as well as any right, power, privilege, or immunity. A "liability" includes any liability, duty, or obligation, whether actual, contingent, or prospective. This expansive drafting ensures that contingent claims, intellectual property licences, and future funding milestones under existing deeds of agreement are fully captured by the automatic vesting provisions of the Act.

The concept of an "exempt matter" under Item 14 is another critical mechanism. It refers to the vesting of assets or liabilities under Part 2 of Schedule 2, or the operation of the Schedule in any other respect. This definition underpins the statutory immunity from State and Territory transaction taxes, ensuring that the restructuring does not trigger stamp duty or registration fees.

The Act directly impacts several groups across the public, corporate, and private sectors, altering their legal relationships, obligations, and administrative counter-parties.

Private and public sector funding recipients are the primary class of affected parties. Entities that entered into funding deeds with the Commonwealth or ASI Limited under programs such as the Solar Flagships Program or the Emerging Renewables Program had their contractual counterparty substituted by operation of law. From the relevant transition time, these recipients became legally accountable to ARENA rather than the Department or ASI Limited. This shift altered where milestone reports are submitted, how funding variations are negotiated, and who holds the contractual right to enforce or terminate the agreements.

The directors and employees of ASI Limited faced direct structural changes. Under Item 17, the Minister was granted the power to terminate the appointments of ASI Limited directors, alongside any associated agreements or instruments, immediately before the second transition time. Under Item 18, the Act explicitly prevented the automatic transfer of employment contracts from ASI Limited to ARENA or the Commonwealth. Instead, employees wishing to transition had to be engaged as Australian Public Service (APS) employees via determinations made under section 72 of the Public Service Act 1999. For those who successfully transitioned, the Act preserved accrued entitlements, including continuous service, long service leave, and maternity leave.

The members of the dissolved ACRE Board were also affected. Under Item 16, their appointments did not transfer to ARENA. This effectively terminated their advisory roles at the first transition time, consolidating the advisory functions within the newly established ARENA Board.

The Minister and senior departmental executives received expanded administrative responsibilities and powers. The Minister was granted powers to specify additional programs or agreements for transfer, determine the second transition time, terminate ASI Limited directors, and issue certificates identifying transferred assets. While the Minister was permitted under Item 32 to delegate most powers to the Secretary of the Department or an SES employee, key strategic decisions (such as determining the transition time or terminating directors) were explicitly made non-delegable.

State and Territory land and asset registration officials were also affected. Under Items 12 and 13, these registration authorities were directed to register transfers of land and other assets to the Commonwealth or ARENA upon receipt of a certificate signed by the Minister, treating such certificates as proper and appropriate instruments for transactions.

Finally, the Clean Energy Regulator was affected through the integration of ARENA into its information-sharing network under Schedule 1, Part 2. This permitted the Regulator to share commercial and compliance data with ARENA, impacting how renewable energy project data is pooled and analyzed at the federal level.

The Act establishes a range of transitional duties and protects specific statutory and constitutional rights to prevent legal gaps or administrative failures during the restructure.

A significant set of duties is imposed on the ARENA Board regarding reporting and corporate compliance. Under Item 26, the ARENA Board was required to prepare and provide to the Minister the final annual report on the operations of the dissolved ACRE Board for the financial year ending 30 June 2012. This report was required to detail any written directions given to the ACRE Board by the Minister under the repealed ACRE Act. Under Item 27, the ARENA Board was assigned the duty to prepare or lodge any reports, returns, or other documents that ASI Limited, its directors, or its staff were required to lodge under Commonwealth law immediately before or after the second transition time. To enable this, the Secretary of the Department was given a reciprocal duty to provide reasonable assistance, including access to records and documents.

Item 28 imposes an ongoing public disclosure duty on ARENA. The agency must include in its annual reports (prepared under section 70 of the Australian Renewable Energy Agency Act 2011) specific details for every entity receiving financial assistance under a transferred Commonwealth or ASI Limited funding agreement during the relevant financial year. This disclosure must state the name of the recipient, the nature and amount of the assistance provided, and the specific renewable energy technologies to which the assistance relates.

The rights of transitioning employees are carefully protected under Item 19. An employee of ASI Limited who became an APS employee via a section 72 determination under the Public Service Act 1999 was granted the statutory right to have their accrued entitlements preserved. This ensured that their service with ASI Limited was treated as continuous with their APS service for all purposes, specifically protecting entitlements under the Long Service Leave (Commonwealth Employees) Act 1976 and the Maternity Leave (Commonwealth Employees) Act 1973. Conversely, Item 18(3) clarifies that transitioning employees have no right to receive redundancy or severance payments merely because they ceased to be employed by ASI Limited to join the APS.

For contract counterparties, the Act preserves existing contractual rights but substitutes the enforcing entity. Under Items 20 and 23, references in instruments to the Commonwealth, the ACRE Board, or ASI Limited are automatically modified to refer to ARENA (for transferred agreements and assets) or the Commonwealth (for non-transferred matters). This ensures that the private counterparty’s substantive contractual rights, such as payment claims or intellectual property licences, remain legally intact and enforceable against the new statutory body.

Finally, Item 31 provides a constitutional safeguard for property rights. If the operation of Schedule 2 results in an "acquisition of property" from any person otherwise than on "just terms" (within the meaning of paragraph 51(xxxi) of the Constitution), the Commonwealth is under a duty to pay a reasonable amount of compensation. If agreement cannot be reached, the affected person is granted a statutory right to institute civil proceedings in a court of competent jurisdiction to recover such compensation.

Because this Act is primarily administrative, transitional, and consequential, it does not establish a standalone regime of criminal offences or civil penalties. Instead, it relies on existing statutory enforcement frameworks and adapts them to the new organizational structure.

The primary enforcement mechanism is the statutory substitution of parties in legal proceedings, set out in Items 21 and 24. If any court or tribunal proceedings were pending immediately before the transition times to which the Commonwealth, the ACRE Board, or ASI Limited was a party, the Act automatically substitutes the relevant successor entity. For proceedings relating to transferred funding agreements or transferred assets and liabilities, ARENA is substituted as the party. For non-transferred matters, the Commonwealth is substituted. This ensures that existing litigation (whether initiated by the government to recover misapplied grant funds, or initiated by a recipient disputing a funding termination) continues without abatement or the need for interlocutory substitution applications.

Enforcement of information security and corporate confidentiality is maintained through the amendment to section 49 of the Clean Energy Regulator Act 2011. By inserting ARENA into paragraph 49(1)(ua), the Act ensures that officers of the Clean Energy Regulator can share information with ARENA without breaching statutory secrecy provisions. However, this also means that any shared information remains subject to the strict confidentiality duties and associated criminal penalties for unauthorized disclosure contained within the broader Clean Energy Regulator Act 2011 framework.

For corporate accountability, Item 30 adapts the enforcement of directors' obligations regarding company records. After the deregistration of ASI Limited, subsection 601AD(5) of the Corporations Act 2001 (which governs the retention of books by directors of a dissolved company) applies to the books of ASI Limited as if references to the directors immediately before deregistration were references to ARENA (for records transferred to its custody under Item 25) or the Commonwealth (for records transferred to departmental custody). This redistribution ensures that statutory obligations to retain and produce corporate books remain enforceable by the Australian Securities and Investments Commission (ASIC) or other regulators, despite the dissolution of the corporate entity and the discharge of its original directors.

Furthermore, Item 32(3) establishes an administrative enforcement mechanism for ministerial delegations. Any departmental officer exercising delegated powers or functions under the Schedule must comply with any written directions issued by the Minister, ensuring centralized control over the transitional process.

The Act serves as a statutory interface, coordinating the operation of several primary pieces of legislation during the restructuring process. Its interactions with other laws are complex, touching upon administrative, corporate, constitutional, and employment law.

First, it is intrinsically linked to the Australian Renewable Energy Agency Act 2011. The "first transition time" is defined by reference to the commencement of the main ARENA Act, and Item 4 explicitly expands the statutory functions of ARENA under its parent Act to include the administration of the transferred Commonwealth and ASI Limited agreements. Additionally, Item 28 integrates transitional disclosure requirements into the main annual reporting framework of section 70 of the ARENA Act.

Second, the Act modifies the application of the Corporations Act 2001. ASI Limited was an unlisted public company limited by guarantee, subject to the standard winding-up and deregistration provisions of the Corporations Act. Item 30 directly alters how section 601AD(5) of the Corporations Act applies to ASI Limited’s books post-deregistration, shifting the legal custody and retention obligations from the former directors to ARENA and the Commonwealth. This avoids the standard corporate law consequences of deregistration regarding company records.

Third, the Act interacts with federal employment and public service laws. The transition of staff from ASI Limited (a corporate entity outside the public service) to the APS was executed via section 72 of the Public Service Act 1999. To ensure this transition did not disadvantage employees, the Act overrode standard public service start dates for entitlement calculations by modifying the application of the Long Service Leave (Commonwealth Employees) Act 1976 and the Maternity Leave (Commonwealth Employees) Act 1973, deeming prior corporate service to be continuous APS service.

Fourth, the Act interacts with federal financial management laws. Items 6, 22, and 25 specify that section 20 of the Commonwealth Authorities and Companies Act 1997 (which was the principal financial management act for Commonwealth authorities at the time) applies to all accounting records transferred to ARENA. This legally integrated the legacy financial accounts of both the Department and ASI Limited into ARENA’s statutory accounting and auditing framework.

Fifth, it interacts with constitutional law, specifically paragraph 51(xxxi) of the Constitution. Because the statutory transfer of contract rights, intellectual property, or land from third parties to ARENA could potentially be characterized as an acquisition of property other than on just terms, Item 31 acts as a saving provision to prevent constitutional invalidity by guaranteeing a right to reasonable compensation.

Lastly, the Act interacts with State and Territory tax laws. Item 14 explicitly overrides State and Territory stamp duty and transaction tax legislation. By declaring the vesting of assets and liabilities to be an "exempt matter", the Act uses the Commonwealth's constitutional power to shield these transitional transfers from local revenue laws, preventing cash leakages during the consolidation.

The Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011 was introduced into the House of Representatives on 12 October 2011 and passed through the Senate on 2 November 2011. It received Royal Assent on 4 December 2011.

Because this Act was designed as a transitional instrument rather than an ongoing regulatory framework, its amendment history is brief. Transitional acts of this nature are generally designed to execute a specific, time-bound transfer of assets and liabilities, after which their provisions become spent, although they remain on the statute book to preserve the historical validity of the transfers.

However, the Act contains an internal mechanism for self-modification and regulatory adjustment. Under Item 34, the Governor-General is empowered to make regulations prescribing matters of a transitional nature, including saving or application provisions, relating to the amendments or repeals made by the Act, or the enactment of the main ARENA Act. Crucially, Item 34(3) contains a "Henry VIII clause", which provides that the regulations may modify the provisions of Schedule 2. If such regulations are made, the provisions of the Schedule have effect as if they were so modified.

This mechanism allows the executive government to amend the transitional statutory text via delegated legislation without returning to Parliament. This power was included to address any unforeseen complications in the asset transfer process or the winding up of ASI Limited that might have arisen during the transition period.

The source text does not identify any specific judicial decisions, pending cases, or historical litigation arising directly under the Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011. This lack of prominent litigation reflects the drafting of the Act, which is designed to prevent disputation by automatically preserving and transferring existing legal relationships rather than terminating or altering them unilaterally.

However, the Act contains several provisions designed to manage and resolve litigation risks associated with the transition. Items 21 and 24 directly address the risk of procedural abatement in ongoing litigation. By providing for the automatic statutory substitution of ARENA or the Commonwealth as a party in any pending proceedings, the Act prevented counterparties from arguing that the dissolution of the ACRE Board or the deregistration of ASI Limited invalidated existing legal actions. This ensured that active litigation concerning breach of contract, debt recovery, or administrative review could proceed seamlessly.

Furthermore, Item 31 establishes a specific litigation pathway for constitutional compensation claims. By explicitly recognizing that the statutory transfer of assets and liabilities could trigger paragraph 51(xxxi) of the Constitution, the Act provides a statutory cause of action. This allows any affected party to institute proceedings in a court of competent jurisdiction if they believe the transfer resulted in an acquisition of property other than on just terms. This provision effectively channels potential constitutional challenges away from seeking to invalidate the Act itself, directing litigants instead toward a structured civil claim for compensation.

For legal practitioners, corporate advisors, and compliance managers, the Act contains several critical provisions (or omissions) that represent potential compliance risks or operational complications.

                  ┌─────────────────────────────────────┐
                  │      Legacy Application Made        │
                  └──────────────────┬──────────────────┘
                                     │
                     Is it decided before transition?
                                     │
                  ┌──────────────────┴──────────────────┐
                  ▼                                     ▼
                [Yes]                                 [No]
      ┌───────────────────────┐             ┌───────────────────────┐
      │  Transfers to ARENA   │             │   Commonwealth/ASI    │
      │  as binding agreement │             │   has no duty to act  │
      └───────────────────────┘             └───────────┬───────────┘
                                                        │
                                            Does ARENA choose to act?
                                                        │
                                            ┌───────────┴───────────┐
                                            ▼                       ▼
                                          [Yes]                    [No]
                                ┌───────────────────────┐ ┌───────────────────┐
                                │ Treated as application│ │ Application dies  │
                                │    under ARENA Act    │ │   without remedy  │
                                └───────────────────────┘ └───────────────────┘

The first major "gotcha" relates to undecided applications for financial assistance, governed by Items 5 and 11. If an applicant had submitted an expression of interest, proposal, or formal grant application under a legacy program (such as the Solar Flagships Program) before the relevant transition time, but the application had not yet been formally refused or resulted in a executed funding agreement, the applicant's legal position deteriorated. Under Items 5(2)(a) and 11(2)(a), the Commonwealth and ASI Limited are explicitly released from any requirement to take action in relation to the application.

While ARENA may, under Items 5(2)(b) and 11(2)(b), choose to treat the application as if it were made under the Australian Renewable Energy Agency Act 2011, it is under no statutory obligation to do so. Consequently, applicants who invested substantial time and capital preparing detailed engineering, commercial, and financial bids under legacy programs had no legal recourse if their applications were abandoned mid-process.

A second risk relates to the termination of ASI Limited officers and staff under Items 17 and 18. The Act does not provide for the automatic transfer of employment. ASI Limited employees who assumed they would automatically transition to ARENA faced sudden contract terminations. Unless they were successfully transitioned via a specific section 72 determination under the Public Service Act 1999, their employment ceased entirely immediately prior to the second transition time. For directors, the Minister’s power under Item 17 to unilaterally terminate their appointments and any associated agreements immediately before the second transition time represents a complete displacement of standard corporate law protections regarding the termination of directors' contracts.

A third risk lies in the split of ASI Limited assets and liabilities under Items 8 and 10. While active "funding agreements" transferred to ARENA, "other" assets and liabilities ceased to be assets and liabilities of ASI Limited and became assets and liabilities of the Commonwealth. This structural split can create significant administrative confusion.

For instance, if a third-party vendor provided general IT, administrative, or consulting services to ASI Limited that supported both its general operations and specific funding agreements, determining whether the associated liabilities and records belong to ARENA or the Commonwealth requires careful legal analysis of the primary contract's scope.

Furthermore, under Item 30, the statutory custody of ASI Limited's corporate books is split between ARENA and the Commonwealth based on which entity received custody of the physical records under Item 25. This split complicates compliance with corporate search requests, audits, or legal discovery, as there is no single corporate successor holding the entire historical archive of ASI Limited.

Fourth, the statutory exemptions from State and Territory taxes under Item 14 are not self-executing in a practical sense. Although the Act declares that no stamp duty or other tax is payable, registration officials often refuse to process transfers of land or registered assets without formal documentation. Compliance professionals must obtain a written certificate from the federal Minister under Item 14(3) certifying that the specific matter is an exempt matter. Without this physical certificate, transactions may face administrative delays at State land titles offices.

Finally, the "Henry VIII clause" in Item 34(3) allows the executive to modify the transitional provisions of Schedule 2 through regulations. This means that the statutory text of the Act as passed by Parliament may not represent the final, active legal rules governing a transfer. Advisors must continually check the federal register of delegated legislation to ensure that no transitional regulations have been made that modify, limit, or expand the operation of the Schedule 2 provisions.

Compliance with the Act requires systematic execution of administrative, corporate, and reporting workflows. The following processes must be managed by the relevant entities to ensure compliance with the statutory transition.

For active funding recipients

Entities currently holding legacy funding agreements transitioned from the Commonwealth or ASI Limited must update their internal compliance registers to reflect their new legal counterparty.

Address and Notice Variations: Audit all active deeds of agreement previously entered into with the Department of Resources, Energy and Tourism or ASI Limited. Update all formal legal registers to substitute "Australian Renewable Energy Agency" (ARENA) as the counterparty. Ensure that all future milestone reports, financial acquittals, and formal notices are addressed to ARENA, citing Items 20 or 23 as the statutory authority for the change.
Review Banking and Payment Details: Verify that payment systems are updated. Any incoming grant distributions or outgoing milestone repayments must be structured through ARENA’s financial accounts, reflecting the transfer of financial assets under Items 3 and 8.
Intellectual Property and Security Registers: If the legacy funding agreement involved the registration of intellectual property licences, real property charges, or security interests in favor of the Commonwealth or ASI Limited, compliance teams must update these registrations. File the appropriate variation forms with the Personal Property Securities Register (PPSR) or IP Australia, using the Minister’s transitional certificates as supporting evidence of the transfer.

For former ASI Limited directors and company secretaries

The dissolution of ASI Limited and the transition of its operations requires specific corporate compliance steps under the Corporations Act 2001 and this transitional Act.

                      ┌─────────────────────────────────┐
                      │   ASI Limited Dissolution &     │
                      │     Deregistration Phase        │
                      └────────────────┬────────────────┘
                                       │
                      Check records custody under Item 25
                                       │
                ┌──────────────────────┴──────────────────────┐
                ▼                                             ▼
      [Transferred to ARENA]                      [Transferred to Dept]
  ┌─────────────────────────────┐             ┌─────────────────────────────┐
  │   Comply with s 601AD(5)    │             │   Comply with s 601AD(5)    │
  │   via ARENA custody systems │             │   via Departmental systems  │
  └─────────────────────────────┘             └─────────────────────────────┘

Verify Custody of Books: Ensure that all corporate records, board minutes, financial ledgers, and registry files are systematically catalogued and split. Under Item 25, documents relating to transferred funding agreements must be transferred to ARENA, while all other general corporate records must be transferred to the custody of the Department.
Execute Statutory Handover: Formally document the transfer of physical and digital records. This documentation is critical for compliance with the modified section 601AD(5) of the Corporations Act, as the statutory duty to retain and provide access to the books of the deregistered company shifts to ARENA or the Commonwealth depending entirely on who received custody under Item 25.
Terminate Appointments and Manage Contracts: Directors must ensure that their formal resignations or terminations under Item 17 are filed with ASIC prior to the second transition time. Review all general corporate contracts (such as office leases, software subscriptions, and utility agreements) and ensure they are formally handed over to the Department, as these residual liabilities transfer to the Commonwealth under Item 10.

For the ARENA Board and corporate reporting teams

The ARENA Board faces several mandatory reporting duties under Parts 5 and 7 of Schedule 2.

Final ACRE Board Reporting: Immediately after the first transition time, the ARENA Board must compile and submit the final annual report of the dissolved ACRE Board for the financial year ending 30 June 2012. Ensure this report is prepared in accordance with section 34C of the Acts Interpretation Act 1901 and contains full details of any ministerial directions given under the repealed ACRE Act.
ASI Limited Financials and Returns: The ARENA Board must assume responsibility for lodging any outstanding corporate returns or tax filings for ASI Limited that were due before or after the second transition time. The Board must formally request reasonable assistance from the Secretary of the Department to access the necessary historical financial systems, as permitted under Item 27(3).
Ongoing Annual Report Disclosures: Establish data capture systems to track all ongoing disbursements under the transferred legacy programs. For every annual report prepared under section 70 of the ARENA Act, compliance officers must include a distinct schedule listing the recipient’s name, the funding amount, the legacy program, and the specific renewable technology supported, as mandated by Item 28.

For legal counsel managing asset transfers

The transfer of land titles, patent rights, and other registered assets from the Commonwealth or ASI Limited to ARENA requires formal registration.

Apply for Ministerial Certificates: Identify all real property holdings, registered leases, intellectual property, or significant assets being transferred. Draft and submit formal requests to the Minister to issue signed vesting certificates under Item 12 (for land) or Item 13 (for other assets). Ensure the certificates clearly identify the assets and state that they have vested under Part 2 of Schedule 2.
Lodge with Registration Officials: Present the Minister’s certificates directly to the relevant State or Territory Registrar of Titles or other asset registration authorities. Cite Items 12(2) and 13(2) as the statutory authority directing the officials to register the transfers without requiring standard transfer deeds or corporate stampings.
Secure Tax Exemptions: To prevent the assessment of transaction taxes, apply to the Minister for a written certificate under Item 14(3) declaring the transfer to be an "exempt matter". Present this certificate to the relevant State or Territory revenue office to secure a full waiver of stamp duty and transfer registration fees.

Australian Renewable Energy Agency (Consequential Amendments and Transitional Provisions) Act 2011

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