An Act to amend the Hearing Services Act 1991, to enact transitional provisions relating to the corporatisation of the Australian Government Health Service, and for other purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Hearing Services and AGHS Reform Act 1997.
2 Commencement
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(3) If Schedule 2 to the Reform of Employment Services (Consequential Provisions) Act 1997 does not commence before the day on which this Act receives the Royal Assent, the amendment of the definition of eligible employment services provider in subsection 6(1) of the Privacy Act 1988 made by this Act commences immediately after the commencement of Schedule 2 to the Reform of Employment Services (Consequential Provisions) Act 1997.
Part 2—Transitional provisions relating to the corporatisation of the Australian Government Health Service (AGHS)
Division 1—Introduction
3 Simplified outline
The following is a simplified outline of this Part:
• This Part provides for the corporatisation of the Australian Government Health Service (AGHS). AGHS was a part of the Department as at the commencement of this Part.
• In this Part, the new corporate structure for the operations of the AGHS is called the nominated company.
• The Commonwealth may transfer AGHS assets, contracts, liabilities and records to the nominated company.
• Provision is made for the transfer of pending proceedings.
• The balance of the Australian Government Health Service Trust Account will be transferred to the nominated company.
• The nominated company will be exempt from State and Territory taxes so long as the company is Commonwealth‑owned.
• The nominated company will not be treated as an agency of the Commonwealth.
4 Definitions
In this Part, unless the contrary intention appears:
AGHS means Australian Government Health Service.
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.
Commonwealth‑owned, in relation to a company, has the meaning given by section 6.
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.
nominated company has the meaning given by section 5.
5 Nominated company
(1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.
(2) The company must:
(a) be incorporated under the Corporations Act 2001; and
(b) have a share capital.
(3) The declaration has effect accordingly.
(4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.
6 Commonwealth‑owned company
For the purposes of this Part, a company is Commonwealth‑owned at a particular time if, and only if, all the shares in the company are beneficially owned by the Commonwealth at that time.
7 Crown to be bound
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.
8 External Territories
This Part extends to all the external Territories.
9 Extra‑territorial operation
This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.
Division 2—Transfers from the Commonwealth to the nominated company
10 Transfer of assets
(1) This section applies to an asset of the Commonwealth that was used, is used, or is proposed to be used, by the AGHS.
(2) The Minister may, by writing, make any or all of the following declarations:
(a) a declaration that a specified asset vests in the nominated company at a specified time without any conveyance, transfer or assignment;
(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 Commonwealth were a reference to the nominated company;
(c) a declaration that the nominated company becomes the Commonwealth’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.
Note: An asset or instrument may be specified by name, by inclusion in a specified class or in any other way.
(3) A declaration under subsection (2) has effect accordingly.
(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.
(5) A time specified under paragraph (2)(a) must be a time when the nominated company is Commonwealth‑owned.
(6) Subsection (2) does not prevent the Commonwealth from transferring an asset to the nominated company otherwise than under that subsection.
11 Transfer of contractual rights and obligations
(1) This section applies to a contract (other than a contract of employment):
(a) that related or relates to the AGHS; and
(b) to which the Commonwealth is a party.
(2) The Minister may, by writing, declare that the Commonwealth’s rights and obligations under a specified contract:
(a) cease to be rights and obligations of the Commonwealth at a specified time; and
(b) become rights and obligations of the nominated company at that time.
(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 Commonwealth were a reference to the nominated company.
(4) The Minister may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the Commonwealth’s rights and obligations under the contract become rights and obligations of the nominated company, as if a reference in the instrument to the Commonwealth were a reference to the nominated company.
(5) The Minister may, by writing, declare that the nominated company becomes the Commonwealth’s successor in law, in relation to the Commonwealth’s rights and obligations under a specified contract, immediately after the Commonwealth’s rights and obligations under the contract become rights and obligations of the nominated company.
(6) A declaration under this section has effect accordingly.
(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.
(8) A time specified under subsection (2) or (3) must be a time when the nominated company is Commonwealth‑owned.
(9) This section does not, by implication, limit section 10.
Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.
12 Transfer of liabilities
(1) This section applies to a liability of the Commonwealth that related or relates to the AGHS.
(2) The Minister may, by writing, make any or all of the following declarations:
(a) a declaration that a specified liability ceases to be a liability of the Commonwealth and becomes a liability of the nominated company at a specified time;
(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 Commonwealth were a reference to the nominated company;
(c) a declaration that the nominated company becomes the Commonwealth’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.
(3) A declaration under subsection (2) has effect accordingly.
(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.
(5) A time specified under paragraph (2)(a) must be a time when the nominated company is Commonwealth‑owned.
Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.
13 Transfers of land may be registered
(1) This section applies if:
(a) any right, title or interest in particular land vests in the nominated company under section 10; and
(b) there is lodged with a land registration official a certificate that:
(i) is signed by the Minister; and
(ii) identifies the land; and
(iii) states that the right, title or interest has become vested in the nominated company under section 10.
(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 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.
14 This Division does not modify registers kept by land registration officials
This Division, 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.
15 Transfer of pending proceedings
(1) This section applies if, as a result of a declaration made by the Minister under this Division, 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.
(2) If any proceedings to which the original person was a party:
(a) were pending in any court or tribunal immediately before that time; and
(b) related, in whole or in part, to the asset, liability, right, benefit or obligation, as the case may be;
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.
16 Transfer of records
(1) This section applies to a record of the Commonwealth that relates to the AGHS.
(2) If the nominated company is Commonwealth‑owned, the Minister may direct the Secretary to the Department to transfer specified records to the nominated company.
Note: A record may be specified by name, by inclusion in a specified class or in any other way.
(3) The Secretary to the Department must ensure that the direction is complied with.
(4) In this section:
record has the same meaning as in the Archives Act 1983.
Division 4—Exemption of nominated company from State and Territory taxes
20 Exemption of nominated company from State and Territory taxes
The nominated company is not subject to taxation under a law of a State or Territory in respect of a particular period if, throughout that period:
(a) the nominated company is Commonwealth‑owned; and
(b) the nominated company only carries on activities that are within the legislative powers of the Parliament.
Division 5—Miscellaneous
21 Nominated company not to be an agency of the Commonwealth etc.
(1) The nominated company is not taken, for the purposes of a law, to be:
(a) a Commonwealth authority; or
(b) established for a public purpose or for a purpose of the Commonwealth; or
(c) a public authority or an agency or instrumentality of the Crown;
(within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.
(2) Subsection (1) does not prevent the nominated company from being a Commonwealth authority for the purposes of the Public Service Act 1922 if paragraph (c) or (d) of the definition of Commonwealth authority in subsection 7(1) of that Act applies to the company.
(3) Subsection (2) is enacted for the avoidance of doubt.
(4) In this section:
law means:
(a) an Act of the Commonwealth or of a State or Territory; or
(b) regulations or any other instrument made under such an Act.
22 Compensation—constitutional safety‑net
(1) If:
(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
(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.
(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.
(3) In this section:
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.