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Governance Review Implementation (Treasury Portfolio Agencies) Bill 2007

Schedule 2 Application and transitional provisions

Part 1 Definitions

1  Definitions

In this Schedule:

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

Agency means:

                     (a)  ASIC as established under the Australian Securities and Investments Commission Act 2001 immediately before the commencement time; or

                     (b)  CAMAC as established under the Australian Securities and Investments Commission Act 2001 immediately before the commencement time; or

                     (c)  APRA as established under the Australian Prudential Regulation Authority Act 1998 immediately before the commencement time.

Agency head means:

                     (a)  in relation to ASIC—the Chairperson of ASIC; or

                     (b)  in relation to CAMAC—the Convenor of CAMAC; or

                     (c)  in relation to APRA—the Chair of APRA.

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.

commencement time means the time when this Schedule commences.

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

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

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.

member means:

                     (a)  in relation to ASIC—a member of ASIC; or

                     (b)  in relation to CAMAC—a member of CAMAC; or

                     (c)  in relation to APRA—an APRA member.



 

Part 2 Application and transitional provisions for ASIC and CAMAC

Division 1—Application provision for ASIC and CAMAC

2  Pre-existing property, money and financial liabilities

(1)       Subject to items 3, 4 and 5 of this Schedule, any real or personal property or money that is held by ASIC or CAMAC immediately before the commencement time is taken, immediately after that time, to be held by ASIC or CAMAC for and on behalf of the Commonwealth.

(2)       Subject to items 3, 4 and 5 of this Schedule, any financial liabilities of ASIC or CAMAC that exist immediately before the commencement time are taken, immediately after that time, to be liabilities of the Commonwealth.

(3)       If an amount of money (the original amount ) that is held by ASIC immediately before the commencement time is held by ASIC for and on behalf of the Commonwealth immediately after the commencement time, an amount equal to the original amount may be paid out of the Consolidated Revenue Fund, which is appropriated accordingly, for the purposes of ASIC.

(4)       If an amount of money (the original amount ) that is held by CAMAC immediately before the commencement time is held by CAMAC for and on behalf of the Commonwealth immediately after the commencement time, an amount equal to the original amount may be paid out of the Consolidated Revenue Fund, which is appropriated accordingly, for the purposes of CAMAC.

Division 2—Transitional provisions for ASIC

3  Trust property held under Part 9.7 of the Corporations Act

Any unclaimed property held, immediately before the commencement time, on trust by ASIC to be dealt with under Part 9.7 of the Corporations Act 2001 (as in force at that time) is taken, immediately after that time, to be held by ASIC for and on behalf of the Commonwealth to be dealt with in accordance with Part 9.7 of the Corporations Act 2001 (as amended by Schedule 1 to this Act).

4  Vesting of other assets held on trust by ASIC

(1)       This item applies to any other assets held on trust by ASIC immediately before the commencement time.

(2)       At the commencement time, the assets to which this item applies cease to be assets held on trust by ASIC and become assets held on trust by the Commonwealth, without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to those assets.

Note:       ASIC may, for and on behalf of the Commonwealth, perform all the duties and exercise all the powers of the Commonwealth as trustee in relation to assets held on trust by the Commonwealth (see subsection 8(6) of the Australian Securities and Investments Commission Act 2001 ).

5  Vesting of liabilities relating to assets held on trust

(1)       This item applies to the liabilities of ASIC in relation to assets mentioned in item 4 of this Schedule that are held on trust by ASIC immediately before the commencement time.

(2)       At the commencement time, the liabilities to which this item applies cease to be liabilities of ASIC in relation to the assets and become liabilities of the Commonwealth in relation to the assets, without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities.

6  Certificates relating to vesting of land

(1)       This item applies if:

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

Note:       Certificates under paragraph (1)(b) are presumed to be authentic: see item 9 of this Schedule.

(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.

7  Certificates relating to vesting of assets other than land

(1)       This item applies if:

                     (a)  any asset other than land vests in the Commonwealth under this Schedule; 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 Schedule.

Note:       Certificates under paragraph (1)(b) are presumed to be authentic: see item 9 of this Schedule.

(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 as are necessary having regard to the effect of this Part.

8  Substitution of Commonwealth as a party to pending proceedings

If any proceedings relating to an asset covered by item 4 of this Schedule, to which ASIC was a party, were pending in any court or tribunal immediately before the commencement time, the Commonwealth is substituted for ASIC, from the commencement time, as a party to the proceedings.

9  Certificates taken to be authentic

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

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

                     (b)  is taken to have been properly given;

unless the contrary is established.

Division 3—Transitional provision for CAMAC

10  Access to records

For the purposes of the operation of subsection 27L(4) of the Commonwealth Authorities and Companies Act 1997 in relation to the books of CAMAC, the reference in that subsection to a Commonwealth authority is to be read, after the commencement time, as a reference to the Convenor.



 

Part 3 Application and transitional provisions for APRA

11  Pre-existing property, money and financial liabilities

(1)       Any real or personal property or money that is held by APRA immediately before the commencement time is taken, immediately after that time, to be held by APRA for and on behalf of the Commonwealth.

(2)       Any financial liabilities of APRA that exist immediately before the commencement time are taken, immediately after that time, to be liabilities of the Commonwealth.

(3)       After the commencement time, there must be credited to the Australian Prudential Regulation Authority Special Account an amount equal to the total of all money held by APRA immediately before the commencement time.

12  Appointment and engagement of staff and consultants

(1)       A person who is appointed or engaged by APRA under section 45 or 47 of the Australian Prudential Regulation Authority Act 1998 immediately before the commencement time, is taken to be appointed or engaged (as the case requires) by the Chair, on behalf of APRA, immediately after the commencement time.

(2)       If:

                     (a)  an instrument is in force under section 45 or 47 of the Australian Prudential Regulation Authority Act 1998 immediately before the commencement time; and

                     (b)  the instrument contains a reference to APRA;

so far as the context permits, the instrument has effect from the commencement time as if the reference to APRA were a reference to the Chair of APRA.

(3)       To avoid doubt, the amendments made by items 53 to 56 of Schedule 1 do not constitute a transmission of business for the purposes of the Workplace Relations Act 1996 .

13  Access to records

For the purposes of the operation of subsection 27L(4) of the Commonwealth Authorities and Companies Act 1997 in relation to the books of APRA, the reference in that subsection to a Commonwealth authority is to be read, after the commencement time, as a reference to the Chair of APRA.



 

Part 4 Transitional provisions for ASIC, CAMAC and APRA

14  Financial statements and other reporting requirements

Reporting requirements

(1)       If:

                     (a)  immediately before the commencement time, a law required an Agency or a member of the Agency to provide a report (whether financial statements or otherwise) for a period; and

                     (b)  the period ends after the commencement time;

the Agency head must provide the report, as required, for so much of the period as occurs before the commencement time.

(2)       If:

                     (a)  under subitem (1), the Agency head is required to provide a report for a part of a period; and

                     (b)  the Agency head is also required to provide a similar report for the remainder of the period;

the Agency head may meet the requirements in a single report for the period.

Outstanding reporting requirements

(3)       If:

                     (a)  a law required the Agency or a member of the Agency to provide a report (whether financial statements or otherwise) for a period that ended before the commencement time; and

                     (b)  the report has not been provided by the commencement time;

the Agency head must provide the report as required.

Application of law to Agency head

(4)       To avoid doubt, if, under this item, an Agency head is required to provide a report under a law, the law applies to the Agency head in respect of the report in the same way as the law would have applied to the Agency or the member of the Agency in respect of the report.

15  New annual report requirements to apply from 2007-2008 and later financial years

Sections 136 and 162 of the Australian Securities and Investments Commission Act 2001 (as inserted by items 12 and 46 of Schedule 1 to this Act), and item 66 of Schedule 1 to this Act, apply to the 2007-2008 financial year and later financial years.

16  Continuing obligation to keep records

If, immediately before this item commences, an Agency has kept accounting records under subsection 20(1) of the Commonwealth Authorities and Companies Act 1997 , then, after this item commences, section 20 of that Act (as in force from time to time), continues to apply, in respect of those records, as if the Agency continued to be subject to that Act.

17  Constitutional safety net—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.

18  Exemption from stamp duty and other State or Territory taxes

No stamp duty or other tax is payable under a law of a State or Territory in respect of, or in respect of anything connected with:

                     (a)  the transfer of an asset or liability under this Schedule; or

                     (b)  the operation of this Schedule in any other respect.

19  Delegation by Minister

(1)       The Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule, in relation to an Agency, to the Agency head.

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

20  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)       In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Schedule 1 to this Act.