Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Governance Review Implementation (AASB and AUASB) Bill 2008

Schedule 2 Transitional provisions

Part 1 Definitions

1  Definitions

In this Schedule:

amend includes repeal and remake.

asset means:

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

                     (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.

guidance means guidance formulated under paragraph 227B(1)(c) of the Australian Securities and Investments Commission Act 2001 .

instrument :

                     (a)  includes:

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

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

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

                            (iv)  regulations; but

                     (b)  does not include an 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.

new law means the Australian Securities and Investments Commission Act 2001 as in force immediately after the commencement time.

old law means the Australian Securities and Investments Commission Act 2001 as in force immediately before the commencement time.

standard means:

                     (a)  an accounting standard made under section 334 of the Corporations Act 2001 ; or

                     (b)  an auditing standard made under section 336 of that Act; or

                     (c)  a document that:

                              (i)  deals with the interpretation of such an accounting standard; and

                             (ii)  such an accounting standard requires to be applied; or

                     (d)  an accounting standard formulated under paragraph 227(1)(c) of the Australian Securities and Investments Commission Act 2001 ; or

                     (e)  an auditing standard or assurance standard formulated under paragraph 227B(1)(b) of that Act.



 

Part 2 Assets, liabilities and legal proceedings

2  Vesting of AASB’s assets and liabilities

(1)        At the commencement time, the assets of the AASB immediately before the commencement time:

                     (a)  cease to be the assets of the AASB; and

                     (b)  become assets of the Commonwealth without any conveyance, transfer or assignment; and

                     (c)  are taken to be held by the Office of the AASB for and on behalf of the Commonwealth.

The Commonwealth becomes the successor in law in relation to these assets.

(2)        At the commencement time, the liabilities of the AASB immediately before the commencement time:

                     (a)  cease to be the liabilities of the AASB; and

                     (b)  become liabilities of the Commonwealth without any conveyance, transfer or assignment.

The Commonwealth becomes the successor in law in relation to these liabilities.

3  Vesting of AUASB’s assets and liabilities

(1)        At the commencement time, the assets of the AUASB immediately before the commencement time:

                     (a)  cease to be the assets of the AUASB; and

                     (b)  become assets of the Commonwealth without any conveyance, transfer or assignment; and

                     (c)  are taken to be held by the Office of the AUASB for and on behalf of the Commonwealth.

The Commonwealth becomes the successor in law in relation to these assets.

(2)        At the commencement time, the liabilities of the AUASB immediately before the commencement time:

                     (a)  cease to be the liabilities of the AUASB; and

                     (b)  become liabilities of the Commonwealth without any conveyance, transfer or assignment.

The Commonwealth becomes the successor in law in relation to these liabilities.

4  Certificates relating to vesting of land

If:

                     (a)  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;

the land registration official may:

                     (c)  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

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

Note:          Certificates under paragraph (b) are presumed to be authentic: see item 22 of this Schedule.

5  Certificates relating to vesting of assets other than land

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;

the assets official may:

                     (c)  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

                     (d)  make such entries in a register as are necessary having regard to the effect of this Part.

Note:          Certificates under paragraph (b) are presumed to be authentic: see item 22 of this Schedule.

6  Substitution of Commonwealth as a party to pending proceedings

If any proceedings to which the AASB or AUASB was a party were pending in any court or tribunal immediately before the commencement time, the Commonwealth is substituted for the AASB or AUASB, from the commencement time, as a party to the proceedings.

7  Transfer of custody of AASB and AUASB records

(1)        Any records or documents that, immediately before the commencement time, were in the custody of the AASB are to be transferred into the custody of the Office of the AASB at or after the commencement time.

(2)        Any records or documents that, immediately before the commencement time, were in the custody of the AUASB are to be transferred into the custody of the Office of the AUASB at or after the commencement time.



 

Part 3 Reference to, and things done by or in relation to, the AASB or the AUASB

8  References in instruments

References to AASB or AUASB

(1)        If:

                     (a)  an instrument (other than a standard or guidance) is in force immediately before the commencement time; and

                     (b)  the instrument contains a reference to the AASB;

the instrument has effect from the commencement time as if the reference were a reference to the Office of the AASB.

(2)        If:

                     (a)  an instrument (other than a standard or guidance) is in force immediately before the commencement time; and

                     (b)  the instrument contains a reference to the AUASB;

the instrument has effect from the commencement time as if the reference were a reference to the Office of the AUASB.

(3)        However, if:

                     (a)  an instrument (other than a standard or guidance) is in force immediately before the commencement time; and

                     (b)  the instrument relates to assets or liabilities covered by item 2 or 3 of this Schedule; and

                     (c)  the instrument refers to the AASB or the AUASB;

the reference is to be read as a reference to the Commonwealth as necessary to give effect to item 2 or 3 of this Schedule, as the case requires.

Minister and regulations may provide otherwise

(4)        The Minister may, by writing, determine that subitem (1), (2) or (3):

                     (a)  does not apply in relation to a specified reference; or

                     (b)  applies as if:

                              (i)  in the case of subitem (1)—the reference in that subitem to the Office of the AASB were a reference to the Commonwealth; or

                             (ii)  in the case of subitem (2)—the reference in that subitem to the Office of the AUASB were a reference to the Commonwealth; or

                            (iii)  in the case of subitem (3)—the reference in that subitem to the Commonwealth were a reference to the Office of the AASB or the Office of the AUASB (as the case requires).

A determination under this subitem has effect accordingly.

(5)        The regulations may provide that an instrument (other than a standard or guidance) containing a reference specified in a determination under paragraph (4)(a) has effect from the commencement time as if:

                     (a)  in the case of an instrument covered by subitem (1)—the reference were a reference to a specified person or body, other than the AASB or the Office of the AASB; or

                     (b)  in the case of an instrument covered by subitem (2)—the reference were a reference to a specified person or body, other than the AUASB or the Office of the AUASB; or

                     (c)  in the case of an instrument covered by subitem (3)—the reference were a reference to a specified person or body, other than the Commonwealth or:

                              (i)  the AASB or the Office of the AASB; or

                             (ii)  the AUASB or the Office of the AUASB;

                            as the case requires.

Determinations are not legislative instruments

(6)        A determination under subitem (4) is not a legislative instrument.

9  Operation of laws

Things done by AASB or AUASB

(1)        If, before the commencement time, a thing was done by, or in relation to, the AASB, then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done by, or in relation to, the Commonwealth.

(2)        If, before the commencement time, a thing was done by, or in relation to, the AUASB, then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done by, or in relation to, the Commonwealth.

(3)        For the purposes of subitems (1) and (2), a thing done before the commencement time under a provision that is amended by this Act has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.

Minister and regulations may provide otherwise

(4)        The Minister may, by writing, determine that subitem (1) or (2):

                     (a)  does not apply in relation to a specified thing done by, or in relation to, the AASB or the AUASB (as the case requires); or

                     (b)  applies as if the reference in that subitem to the Commonwealth were a reference to the Office of the AASB or the Office of the AUASB (as the case requires).

A determination under this subitem has effect accordingly.

(5)        The regulations may provide for a thing specified in a determination under paragraph (4)(a) to be taken to have been done by, or in relation to, a specified person or body other than the Commonwealth or the Office of the AASB or Office of the AUASB (as the case requires).

Meaning of doing

(6)        For the purposes of this item, doing a thing includes making an instrument, but does not include making a standard or formulating guidance.

Determinations are not legislative instruments

(7)        A determination made under subitem (4) is not a legislative instrument.

10  Reporting requirements of the AASB etc.

Future reporting requirements

(1)        If:

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

                     (b)  the period ends after the commencement time;

the Chair of the AASB 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 Chair of the AASB is required to provide a report for a part of a period; and

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

the Chair of the AASB may meet the requirements in a single report for the period.

Outstanding reporting requirements

(3)        If:

                     (a)  a law required the AASB, the Chair of the AASB or the members of the AASB 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 Chair of the AASB must provide the report as required.

Application of law to Chair of the AASB

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

11  Reporting requirements of the AUASB etc.

Future reporting requirements

(1)        If:

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

                     (b)  the period ends after the commencement time;

the Chair of the AUASB 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 Chair of the AUASB is required to provide a report for a part of a period; and

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

the Chair of the AUASB may meet the requirements in a single report for the period.

Outstanding reporting requirements

(3)        If:

                     (a)  a law required the AUASB, the Chair of the AUASB or the members of the AUASB 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 Chair of the AUASB must provide the report as required.

Application of law to Chair of the AUASB

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

12  Reporting requirements of the FRC etc.

Future reporting requirements

(1)        If:

                     (a)  immediately before the commencement time, a law required the FRC, the Chair of the FRC or the members of the FRC to provide a report (whether financial statements or otherwise) relating to the AASB or the AUASB for a period; and

                     (b)  the period ends after the commencement time;

the FRC 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 FRC is required to provide a report for a part of a period; and

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

the FRC may meet the requirements in a single report for the period.

Outstanding reporting requirements

(3)        If:

                     (a)  a law required the FRC, the Chair of the FRC or the members of the FRC to provide a report (whether financial statements or otherwise) relating to the AASB or the AUASB for a period that ended before the commencement time; and

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

the FRC must provide the report as required.

Application of law to Chair of the FRC

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

13  Continuing obligation to keep records

(1)        Section 20 of the Commonwealth Authorities and Companies Act 1997 (as in force from time to time) continues to apply after the commencement time in relation to the accounting records kept by the AASB under that section before that time as if the Office of the AASB were subject to that Act in place of the AASB.

(2)        Section 20 of the Commonwealth Authorities and Companies Act 1997 (as in force from time to time) continues to apply after the commencement time in relation to the accounting records kept by the AUASB under that section before that time as if the Office of the AUASB were subject to that Act in place of the AUASB.



 

Part 4 Staff and consultants

14  Staff of the AASB

(1)        A person who was a member of the staff of the AASB immediately before the commencement time is taken, at the commencement time, to have been engaged by the Chair of the AASB as a member of the staff of the Office of the AASB.

(2)        The person is taken:

                     (a)  to have been engaged on the same terms and conditions as applied to the person immediately before the commencement time; and

                     (b)  to have an entitlement to benefits, in connection with that engagement by the Chair of the AASB, that is equivalent to the person’s entitlement, as a member of the staff of the AASB, immediately before the commencement time.

(3)        The service of the person as a member of the staff of the Office of the AASB is taken, for all purposes, to have been continuous with the service, immediately before the commencement time, of the employee as a member of the staff of the AASB.

(4)        The person is not entitled to receive any payment or other benefit merely because he or she stopped being a member of the staff of the AASB as a result of this Act.

(5)        This item does not prevent the terms and conditions referred to in paragraph (2)(a) being varied after the commencement time.

15  Staff of the AUASB

(1)        A person who was a member of the staff of the AUASB immediately before the commencement time is taken, at the commencement time, to have been engaged by the Chair of the AUASB as a member of the staff of the Office of the AUASB.

(2)        The person is taken:

                     (a)  to have been engaged on the same terms and conditions as applied to the person immediately before the commencement time; and

                     (b)  to have an entitlement to benefits, in connection with that engagement by the Chair of the AUASB, that is equivalent to the person’s entitlement, as a member of the staff of the AUASB, immediately before the commencement time.

(3)        The service of the person as a member of the staff of the Office of the AUASB is taken, for all purposes, to have been continuous with the service, immediately before the commencement time, of the employee as a member of the staff of the AUASB.

(4)        The person is not entitled to receive any payment or other benefit merely because he or she stopped being a member of the staff of the AUASB as a result of this Act.

(5)        This item does not prevent the terms and conditions referred to in paragraph (2)(a) being varied after the commencement time.

16  Consultants

(1)        A person in respect of whom an engagement as a consultant was in force under paragraph 227(3)(a) or 227B(2)(a) of the old law immediately before the commencement time is taken, at the commencement time, to have been engaged as a consultant under subsection 235F(1) or 236DD(1) (as the case requires) of the new law.

(2)        The person is taken to have been engaged on the same terms and conditions as applied to the person immediately before the commencement time.

(3)        This item does not prevent those terms and conditions being varied after the commencement time.



 

Part 5 Other matters

17  Accounting standards and auditing standards etc. unaffected

To avoid doubt, this Act does not affect:

                     (a)  the validity of accounting standards made or formulated by the AASB before the commencement time; or

                     (b)  the validity of auditing standards or guidance made or formulated by the AUASB before the commencement time.

18  Membership of AASB and AUASB unaffected

To avoid doubt, if, immediately before the commencement time, a person’s appointment as a member of the AASB or AUASB is in force, this Act does not affect the continuation of the person’s appointment after the commencement time.

19  Liability for damages

If:

                     (a)  section 246 of the old law applied to a person in relation to an act done or omitted before the commencement time; and

                     (b)  section 246 of the new law would not (but for this item) apply to the person;

section 246 of the new law is taken to apply to the person in relation to the act or omission.

20  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.

21  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.

(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.

22  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.

23  Delegation by Minister

(1)        The Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule relating to the AASB or the Office of the AASB to:

                     (a)  the Chair of the AASB; or

                     (b)  the Secretary of the Department; or

                     (c)  an SES employee or acting SES employee in the Department.

(2)        The Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule relating to the AUASB or the Office of the AUASB to:

                     (a)  the Chair of the AUASB; or

                     (b)  the Secretary of the Department; or

                     (c)  an SES employee or acting SES employee in the Department.

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

24  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 Governor-General may make regulations 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.

 

 

 

[ Minister’s second reading speech made in—

House of Representatives on 18 June 2008

Senate on 26 June 2008 ]

(133/08)