Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Clean Energy Finance Corporation (Abolition) Bill 2013 [No. 2]
Go To First Hit

Schedule 1 Amendments

Part 1 Repeal

Clean » « Energy » Finance Corporation Act 2012

1  The whole of the Act

Repeal the Act .

Part 2 Amendments

Australian Renewable « Energy » Agency Act 2011

2  Section 73A

Repeal the section.

« Clean » « Energy » Regulator Act 2011

3  Paragraph 49(1)(sa)

Repeal the paragraph.

Part 3 Transitional provisions

Division 1—Introduction

4  Definitions

In this Part:

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:

                     (a)  under a law of the Commonwealth, a State or a Territory; or

                     (b)  under a trust instrument; or

                     (c)  otherwise;

has responsibility for keeping a register in relation to assets of the kind concerned.

commencement time means the commencement of Part 1 of this Schedule.

Corporation means the « Clean » « Energy » Finance Corporation.

Corporation’s investments means assets and liabilities that vest in the Commonwealth under Division 2, to the extent to which the assets and liabilities were acquired or incurred by the Corporation for its investment function (within the meaning of the « Clean » « Energy » Finance Corporation Act 2012 as in force immediately before the commencement time).

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.

Secretary means the Secretary of the Department.

Division 2—Transfer of assets and liabilities

5  Vesting of assets of Corporation

(1)       This item applies to the assets of the Corporation immediately before the commencement time.

(2)       At the commencement time, the assets cease to be assets of the Corporation and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the assets.

6  Vesting of liabilities of Corporation

(1)       This item applies to the liabilities of the Corporation immediately before the commencement time.

(2)       At the commencement time, the liabilities cease to be liabilities of the Corporation and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to the liabilities.

7  Transfers of land may be registered

(1)       This item applies if:

                     (a)  any land vests in the Commonwealth under this Division; 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 Division.

(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 under paragraph (1)(b) is not a legislative instrument.

8  Certificates relating to vesting of assets other than land

(1)       This item applies if:

                     (a)  an asset other than land vests in the Commonwealth under this Division; 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 under this Division.

(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 Division.

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

9  Corporation’s investments

(1)       Without limiting items 5 and 6, the Commonwealth has the power to do all things that are necessary or convenient to be done for or in relation to the following:

                     (a)  holding the Corporation’s investments;

                     (b)  managing the Corporation’s investments;

                     (c)  meeting obligations in relation to the Corporation’s investments;

                     (d)  realising or otherwise disposing of the Corporation’s investments.

(2)       Sections 39 and 40 of the Financial Management and Accountability Act 1997 do not apply to the Corporation’s investments.

Division 3—Transfer of other matters

10  Acts of Corporation to be attributed to the Commonwealth

(1)       This item applies to anything done by, or in relation to, the Corporation before the commencement time.

(2)       After the commencement time, the thing has effect as if it had been done by, or in relation to, the Commonwealth.

11  Substitution of the Commonwealth as a party to certain pending proceedings

(1)       This item applies if any proceedings to which the Corporation was a party were pending in any court or tribunal immediately before the commencement time.

(2)       The Commonwealth is substituted for the Corporation, from the commencement time, as a party to those proceedings.

12  Transfer of records to the Department

(1)       This item applies to any records or documents that were in the possession of the Corporation immediately before the commencement time.

(2)       The records and documents are to be transferred to the Department after the commencement time.

Note:       The records and documents are Commonwealth records for the purposes of the Archives Act 1983 .

13  Protection of information obtained from the « Clean » « Energy » Regulator

If:

                     (a)  before the commencement time, information was disclosed to the Corporation under subsection 49(2) of the « Clean » « Energy » Regulator Act 2011 ; and

                     (b)  immediately before the commencement time, a person was subject to a condition under subsection 49(3) of that Act in relation to the information disclosed;

the person continues to be subject to the condition after the commencement time.

14  Transfer of Ombudsman investigations

If:

                     (a)  before the commencement time, a complaint was made to the Ombudsman, or the Ombudsman began an investigation, under the Ombudsman Act 1976 in relation to an action taken by the Corporation; and

                     (b)  immediately before the commencement time, the Ombudsman had not finally disposed of the matter in accordance with the Ombudsman Act 1976 ;

the Ombudsman Act 1976 applies after the commencement time as if that action had been taken by the Department.

15  References in certain instruments to Corporation

(1)       If:

                     (a)  an instrument was in force immediately before the commencement time; and

                     (b)  a reference is made in the instrument to the Corporation; and

                     (c)  the instrument is an instrument covered by one or more of the following subparagraphs:

                              (i)  an instrument that was made by the Corporation;

                             (ii)  an instrument to which the Corporation was a party;

                            (iii)  an instrument that was given to, or in favour of, the Corporation;

                            (iv)  an instrument under which any right or liability accrues or may accrue to the Corporation;

                             (v)  any other instrument in which a reference is made to the Corporation;

the reference has effect after the commencement time as if it were a reference to the Commonwealth.

(2)       For the purposes of this item, instrument :

                     (a)  includes:

                              (i)  a contract, undertaking, deed or agreement; and

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

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

                     (b)  does not include an exempt instrument.

(3)       For the purposes of this item, exempt instrument means:

                     (a)  an Act; or

                     (b)  an instrument made under this Act; or

                     (c)  an instrument specified in an instrument under subitem (4).

(4)       The Minister may, by legislative instrument, specify one or more instruments for the purposes of paragraph (3)(c).

Division 4—Special Account

16  CEFC Transitional Special Account

(1)       The CEFC Transitional Special Account is established by this item.

(2)       The CEFC Transitional Special Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997 .

17  Credits to the CEFC Transitional Special Account

(1)       There must be credited to the CEFC Transitional Special Account amounts equal to the following:

                     (a)  the amount standing to the credit of the old Special Account immediately before the commencement time;

                     (b)  the amount standing to the credit of the Corporation’s bank account or bank accounts immediately before the commencement time;

                     (c)  the value, immediately before the commencement time, of any securities in which the Corporation has invested surplus money in accordance with section 18 of the Commonwealth Authorities and Companies Act 1997 .

(2)       In this item:

old Special Account means the « Clean » « Energy » Finance Corporation Special Account established by section 45 of the « Clean » « Energy » Finance Corporation Act 2012 as in force immediately before the commencement time.

18  Purposes of the CEFC Transitional Special Account

The purposes of the CEFC Transitional Special Account are as follows:

                     (a)  paying or discharging costs, expenses and other obligations incurred by the Commonwealth for the purposes of doing any of the following in relation to the assets and liabilities (including the Corporation’s investments) that vest in the Commonwealth under Division 2:

                              (i)  holding the assets and liabilities;

                             (ii)  managing the assets and liabilities;

                            (iii)  meeting obligations in relation to the assets and liabilities;

                            (iv)  realising or otherwise disposing of the assets and liabilities;

                     (b)  paying any remuneration and allowances payable to any person in relation to doing any of the things referred to in paragraph (a);

                     (c)  paying any other expenses necessary or appropriate for the purposes of meeting any other obligations incurred by the Commonwealth as a consequence of this Act;

                     (d)  meeting the expenses of administering the Account;

                     (e)  giving effect to a direction under item 19 (Transfer to consolidated revenue fund).

Note 1:    See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

Note 2:    If the debit of an amount from the CEFC Transitional Special Account will reduce the balance to nil, this Division is repealed the following day and the Minister must publish a notice in the Gazette (see item 7 of the table in subsection 2(1) and item 28 of this Schedule).

19  Transfer to consolidated revenue fund

(1)       The Finance Minister may, by writing, direct that a specified amount is to be debited from the CEFC Transitional Special Account.

(2)       If the Finance Minister is satisfied that no further amounts will be required to be debited for a purpose referred to in any of paragraphs 18(a) to (d), the Finance Minister must direct under subitem (1) the debiting of an amount equal to the amount standing to the credit of the CEFC Transitional Special Account.

Note:       If the debit of an amount from the CEFC Transitional Special Account will reduce the balance to nil, this Division is repealed the following day and the Minister must publish a notice in the Gazette (see item 7 of the table in subsection 2(1) and item 28 of this Schedule).

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

(4)       The Finance Minister must give a copy of a direction under subitem (1) to the Minister.

Division 5—Annual reporting obligation

20  Final annual report—Corporation

(1)       The Secretary must prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Corporation during the final reporting period.

(2)       Subject to this item, as far as practicable the report must comply with the requirements for an annual report under section 9 of the Commonwealth Authorities and Companies Act 1997 . For this purpose, that Act, and section 74 of the « Clean » « Energy » Finance Corporation Act 2012 as in force immediately before the commencement time, apply to the report as if a reference to a financial year were a reference to the final reporting period.

(3)       The Secretary may include the report in the Department’s annual report for the financial year in which the last day of the final reporting period occurs.

(4)       If the Secretary does not include the report in the Department’s annual report, then:

                     (a)  the Secretary must give the report to the Minister within 3 months after the end of the final reporting period; and

                     (b)  the Minister must table the report in each House of the Parliament as soon as practicable; and

                     (c)  the Secretary must publish the report on the Department’s website as soon as practicable after the report is tabled in the House of Representatives.

(5)       The Minister may grant an extension of the time referred to in paragraph (4)(a) in special circumstances.

(6)       In this item:

final reporting period means the period:

                     (a)  beginning:

                              (i)  if, at the commencement time, no report under section 9 of the Commonwealth Authorities and Companies Act 1997 has been given to the Minister for the financial year ending before the commencement time—at the start of that financial year; or

                             (ii)  otherwise—at the start of the financial year in which the commencement time occurs; and

                     (b)  ending immediately before the commencement time.

Division 6—Investment reporting obligation

21  Final quarterly investment report—Corporation

Before the commencement time, the Corporation must publish a report on its website in accordance with section 72 of the « Clean » « Energy » Finance Corporation Act 2012 , for:

                     (a)  any quarter ending before the commencement time, for which a report under section 72 has not already been published; and

                     (b)  so much of the quarter in which the commencement time will occur, as has elapsed by the commencement time.

Division 7—Officers and employees

22  No transfer of appointment, engagement or employment of staff

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

(2)       In this item:

Corporation officer means:

                     (a)  a member of the Board of the Corporation; or

                     (b)  an employee of the Corporation; or

                     (c)  a consultant engaged by the Corporation.

Division 8—Miscellaneous

23  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)       For the purposes of this item, an exempt matter is:

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

                     (b)  the operation of this Part 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)       In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subitem (3) is prima facie evidence of the matters stated in the certificate.

24  Certificates taken to be authentic

A document that appears to be a certificate made or issued under a particular provision of this Part:

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

                     (b)  is taken to have been properly given;

unless the contrary is established.

25  Delegation by Minister

(1)       The Minister may, by writing, delegate all or any of his or her powers and functions under this Part to a person.

(2)       The delegate must be:

                     (a)  the Secretary of the Department; or

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

Note:       The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901 .

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

26  Compensation for acquisition of property

(1)       If the operation of this Schedule would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), 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.

27  Transitional rules

The Minister may, by legislative instrument, make rules in relation to transitional matters arising out of the amendments and repeals made by this Schedule.

Part 4 Repeal of CEFC Transitional Special Account

« Clean » « Energy Finance Corporation (Abolition) Act 2013

28  Division 4 of Part 3 of Schedule 1

Repeal the Division.