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ANL Sale Bill 1998

Part 2 Transfer of assets etc. of ANL

Division 1 Preliminary

6   Definitions

                   In this Part, unless the contrary intention appears:

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 subsidiary has the meaning given by section 7.

contract includes:

                     (a)  a deed; and

                     (b)  a deed poll.

Federal Court means the Federal Court of Australia.

instrument includes a document.

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 includes any liability, duty or obligation (however created or recorded), whether actual, contingent or prospective.

sale scheme body means:

                     (a)  an ANL body; or

                     (b)  if all the shares in a particular company have vested in the Commonwealth under section 8:

                              (i)  that company; or

                             (ii)  a wholly-owned subsidiary of that company.

transferred employee means a person whose employment is transferred in accordance with a declaration under section 17.

7   Commonwealth subsidiary

                   For the purposes of this Part, a body corporate is a Commonwealth subsidiary if, and only if:

                     (a)  the body corporate has a share capital; and

                     (b)  there is no share in the body corporate that is not beneficially owned by:

                              (i)  the Commonwealth; or

                             (ii)  a company that is a Commonwealth subsidiary because of any other application or applications of this section.



 

Division 2 Transfers of assets, liabilities etc. of ANL bodies

8   Transfer of assets by declaration

             (1)  This section applies to an asset of an ANL body.

             (2)  The Minister for Finance and Administration may, by writing, make any or all of the following declarations:

                     (a)  a declaration that a specified asset vests in a specified person 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 a specified person as if a reference in the instrument to the ANL body were a reference to the person;

                     (c)  a declaration that a specified person becomes the ANL body’s successor in law in relation to a specified asset immediately after the asset vests in the person.

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 21 days after the making of the declaration.

             (5)  Subsection (2) does not prevent the ANL body from transferring an asset to a person otherwise than under that subsection.

             (6)  If a share in a company vests in a person under this section, the company must register the person as the holder of the share.

             (7)  Subsection (6) has effect despite anything in the Corporations Law or any other law of the Commonwealth, a State or a Territory.

9   Transfer of contractual rights and obligations by declaration

             (1)  This section applies to a contract to which an ANL body is a party.

             (2)  The Minister for Finance and Administration may, by writing, declare that the ANL body’s rights and obligations under a specified contract:

                     (a)  cease to be rights and obligations of the body at a specified time; and

                     (b)  become rights and obligations of a specified person at that time.

             (3)  The Minister for Finance and Administration 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 ANL body were a reference to a specified person.

             (4)  The Minister for Finance and Administration may, by writing, declare that a specified instrument relating to a specified contract continues to have effect, after the ANL body’s rights and obligations under the contract become rights and obligations of a specified person, as if a reference in the instrument to the body were a reference to the person.

             (5)  The Minister for Finance and Administration may, by writing, declare that a specified person becomes the ANL body’s successor in law, in relation to the body’s rights and obligations under a specified contract, immediately after the body’s rights and obligations under the contract become rights and obligations of the person.

             (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 21 days after the making of the declaration.

             (8)  This section does not, by implication, limit section 8.

Note:          A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.

10   Transfer of liabilities by declaration

             (1)  This section applies to a liability of an ANL body.

             (2)  The Minister for Finance and Administration 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 ANL body and becomes a liability of a specified person 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 a specified person as if a reference in the instrument to the body were a reference to the person;

                     (c)  a declaration that a specified person becomes the body’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the person.

Note:          A liability 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 21 days after the making of the declaration.

11   Consideration

             (1)  A declaration may be made under this Division, whether or not the declaration is associated with the giving of consideration.

             (2)  This section is enacted for the avoidance of doubt.



 

Division 3 Transfers by the Commonwealth and Commonwealth subsidiaries

12   Transfer of assets

             (1)  This section applies to an asset that has vested in the Commonwealth, or in a Commonwealth subsidiary, under section 8.

             (2)  The Minister for Finance and Administration may, by writing, make any or all of the following declarations:

                     (a)  a declaration that a specified asset vests in a specified person 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 a specified person as if a reference in the instrument to the Commonwealth, or to the Commonwealth subsidiary in question, were a reference to the person;

                     (c)  a declaration that a specified person becomes the Commonwealth’s, or the Commonwealth subsidiary’s, successor in law in relation to a specified asset immediately after the asset vests in the person.

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 21 days after the making of the declaration.

             (5)  Subsection (2) does not prevent the Commonwealth or a Commonwealth subsidiary from transferring an asset to a person otherwise than under that subsection.

13   Transfer of contractual rights and obligations

             (1)  This section applies to a contract where rights and obligations under the contract became rights and obligations of the Commonwealth, or of a Commonwealth subsidiary, under section 9.

             (2)  The Minister for Finance and Administration may, by writing, declare that the Commonwealth’s rights and obligations, or the rights and obligations of the Commonwealth subsidiary in question, under a specified contract:

                     (a)  cease to be rights and obligations of the Commonwealth or the Commonwealth subsidiary at a specified time; and

                     (b)  become rights and obligations of a specified person at that time.

             (3)  The Minister for Finance and Administration 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, or to the Commonwealth subsidiary, were a reference to a specified person.

             (4)  The Minister for Finance and Administration may, by writing, declare that:

                     (a)  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 a specified person; or

                     (b)  a specified instrument relating to a specified contract continues to have effect, after the rights and obligations of the Commonwealth subsidiary under the contract become rights and obligations of a specified person;

as if a reference in the instrument to the Commonwealth, or to the Commonwealth subsidiary, were a reference to the person.

             (5)  The Minister for Finance and Administration may, by writing, declare that:

                     (a)  a specified person becomes the Commonwealth’s successor in law, in relation to the Commonwealth’s rights and obligations under a specified contract; or

                     (b)  a specified person becomes the Commonwealth subsidiary’s successor in law, in relation to the rights and obligations of the Commonwealth subsidiary under a specified contract;

immediately after the Commonwealth’s rights and obligations, or the rights and obligations of the Commonwealth subsidiary, under the contract become rights and obligations of the person.

             (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 21 days after the making of the declaration.

             (8)  This section does not, by implication, limit section 12.

Note:          A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.

14   Transfer of liabilities

             (1)  This section applies to a liability that became a liability of the Commonwealth, or of a Commonwealth subsidiary, under section 10.

             (2)  The Minister for Finance and Administration 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, or of the Commonwealth subsidiary in question, and becomes a liability of a specified person 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 a specified person as if a reference in the instrument to the Commonwealth, or to the Commonwealth subsidiary, were a reference to the person;

                     (c)  a declaration that a specified person becomes the Commonwealth’s, or the Commonwealth subsidiary’s, successor in law in relation to a specified liability immediately after the liability becomes a liability of the person.

Note:          A liability 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 21 days after the making of the declaration.

15   Consideration

             (1)  A declaration may be made under this Division, whether or not the declaration is associated with the giving of consideration.

             (2)  This section is enacted for the avoidance of doubt.



 

Division 4 Proceeds of asset transfers to be paid to the Commonwealth

16   Proceeds of asset transfers to be paid to the Commonwealth

             (1)  The Minister for Finance and Administration may, by written notice given to an ANL body, direct that, if the body receives any consideration in respect of:

                     (a)  the sale or transfer by the body of a specified asset in accordance with a direction under section 68A of the ANL Act 1956 ; or

                     (b)  the transfer of a specified asset of the body under section 8; or

                     (c)  the transfer, under section 9, of the body’s rights and obligations under a specified contract;

the body must pay to the Commonwealth an amount equal to the consideration.

Note:          An asset or contract may be specified by name, by inclusion in a specified class or in any other way.

             (2)  The body must comply with the direction.



 

Division 5 Transfer of staff

17   Transfer of staff from a sale scheme body

             (1)  This section applies to an employee of a sale scheme body.

             (2)   The Minister for Finance and Administration may, by written instrument, declare that a specified employee:

                     (a)  ceases to be employed by a sale scheme body at a specified time (the employee’s transfer time ); and

                     (b)  is taken to have been engaged by a specified body corporate, to which shares in or assets of the sale scheme body have been (or are to be) transferred, as an employee of the body corporate at the employee’s transfer time.

             (3)  A declaration under this section has effect accordingly.

             (4)  A time specified under subsection (2) must be a time that occurs:

                     (a)  at or before the time that the transfer referred to in paragraph (2)(b) takes place; or

                     (b)  within 12 months after the transfer takes place.

             (5)  A copy of a declaration under subsection (2) is to be published in the Gazette within 21 days after the making of the declaration.

18   Terms and conditions—transferred employees

             (1)  A person who is a transferred employee is taken to have been engaged by the specified body corporate in question on the terms and conditions that applied to the person, immediately before the employee’s transfer time, as an employee of the sale scheme body in question.

             (2)   A reference in subsection (1) to terms and conditions is a reference to terms and conditions that are set out in:

                     (a)  a written contract of employment; or

                     (b)  an award (as defined by section 4 of the Workplace Relations Act 1996 ); or

                     (c)  a certified agreement (as defined by section 4 of the Workplace Relations Act 1996 ); or

                     (d)  an Australian Workplace Agreement (as defined by section 4 of the Workplace Relations Act 1996 ); or

                     (e)  a certified agreement (as defined by section 4 of the Industrial Relations Act 1988 as in force immediately before the commencement of Schedule 8 to the Workplace Relations and Other Legislation Amendment Act 1996 ) that continues to have effect because of Part 2 of that Schedule.

19   Accrued benefits—transferred employees

                   A person who is a transferred employee is taken to have accrued an entitlement to benefits, in connection with the employee’s engagement by the specified body corporate in question, that is equivalent to the entitlement that the person had accrued, as an employee of the sale scheme body in question, immediately before the employee’s transfer time.

20   Continuity of service of transferred employees

                   The service of a transferred employee as an employee of the specified body corporate in question is taken, for all purposes, to have been continuous with the service of the employee, immediately before the employee’s transfer time, as an employee of the sale scheme body in question.

21   Termination payments—transferred employees

                   A transferred employee is not entitled to receive any payment or other benefit merely because he or she stopped being an employee of the sale scheme body in question as a result of this Division.

22   Variation of terms and conditions —transferred employees

             (1)  This Division does not prevent the terms and conditions of a transferred employee’s employment after the employee’s transfer time from being varied:

                     (a)  in accordance with those terms and conditions; or

                     (b)  by or under a law, award, determination or agreement.

             (2)   In this section:

vary , in relation to terms and conditions, includes:

                     (a)  omitting any of those terms and conditions; or

                     (b)  adding to those terms and conditions; or

                     (c)  substituting new terms or conditions for any of those terms and conditions.



 

Division 6 Exemption from stamp duty etc.

23   Exemption from stamp duty etc.

             (1)  In this section:

designated matter means:

                     (a)  the sale or transfer by an ANL body of an asset to the Commonwealth, or to a Commonwealth subsidiary, in accordance with a direction under section 68A of the ANL Act 1956 ; or

                     (b)  an agreement relating to a sale or transfer covered by paragraph (a); or

                     (c)  the receipt of money by an ANL body, or by a person acting on behalf of an ANL body, in respect of a sale or transfer covered by paragraph (a); or

                     (d)  a transfer to the Commonwealth, or to a Commonwealth subsidiary, under section 8, 9 or 10; or

                     (e)  an agreement relating to a transfer covered by paragraph (d); or

                      (f)  the receipt of money by an ANL body, or by a person acting on behalf of an ANL body, in respect of a transfer covered by paragraph (d); or

                     (g)  a transfer to the Commonwealth, or to a Commonwealth subsidiary, under section 12, 13 or 14; or

                     (h)  an agreement relating to a transfer covered by paragraph (g); or

                      (i)  the receipt of money by the Commonwealth or a Commonwealth subsidiary, or by a person acting on behalf of the Commonwealth or a Commonwealth subsidiary, in respect of a transfer covered by paragraph (g); or

                      (j)  the sale or transfer by the Commonwealth to a Commonwealth subsidiary of an asset that has vested in the Commonwealth under section 8; or

                     (k)  an agreement relating to a sale or transfer covered by paragraph (j); or

                      (l)  the receipt of money by the Commonwealth, or by a person acting on behalf of the Commonwealth, in respect of a sale or transfer covered by paragraph (j); or

                    (m)  the sale or transfer by a Commonwealth subsidiary to the Commonwealth of an asset that has vested in the Commonwealth subsidiary under section 8; or

                     (n)  an agreement relating to a sale or transfer covered by paragraph (m); or

                     (o)  the receipt of money by a Commonwealth subsidiary, or by a person acting on behalf of the Commonwealth subsidiary, in respect of a sale or transfer covered by paragraph (m).

             (2)  Stamp duty or other tax is not payable under a law of a State or Territory in respect of:

                     (a)  a designated matter; or

                     (b)  anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a designated matter.



 

Division 7 Sale scheme body to assist the Commonwealth and ANL

24   Implementation of this Part

                   Without otherwise limiting the meaning of the expression, a reference in this Division to the implementation of this Part includes a reference to:

                     (a)  the sale or transfer by the Commonwealth of an asset that has vested in the Commonwealth under section 8; and

                     (b)  the sale or transfer by a Commonwealth subsidiary of an asset that has vested in it under section 8; and

                     (c)  the sale or transfer by the Commonwealth of rights and obligations that have become rights and obligations of the Commonwealth under section 9; and

                     (d)  the sale or transfer by a Commonwealth subsidiary of rights and obligations that have become its rights and obligations under section 9; and

                     (e)  the transfer by the Commonwealth of liabilities that have become liabilities of the Commonwealth under section 10; and

                      (f)  the transfer by a Commonwealth subsidiary of liabilities that have become its liabilities under section 10; and

                     (g)  the sale or transfer of shares or assets of an ANL body; and

                     (h)  the formulation of the policies and approaches to be adopted by the Minister for Finance and Administration in connection with:

                              (i)  the implementation of this Part; and

                             (ii)  any sale or transfer of a kind referred to in paragraph (a), (b), (c), (d), (e), (f) or (g).

25   Assistance given by a sale scheme body or director in connection with the implementation of this Part

             (1)  A sale scheme body may, on the body’s own initiative, assist the Commonwealth or ANL in connection with the implementation of this Part.

             (2)  A director of a sale scheme body may, on the director’s own initiative, assist the Commonwealth or ANL in connection with the implementation of this Part.

             (3)  A sale scheme body must, when requested in writing by the Minister for Finance and Administration to do so, assist the Commonwealth or ANL in connection with the implementation of this Part. The assistance is to be given within the period, and in the form and manner, specified in the request.

             (4)  A director of a sale scheme body must, when requested in writing by the Minister for Finance and Administration to do so, assist the Commonwealth or ANL in connection with the implementation of this Part. The assistance is to be given within the period, and in the form and manner, specified in the request.

             (5)  The Minister for Finance and Administration may, by written notice given to a sale scheme body, give directions to the body about the exercise of the body’s powers under subsection (1). The body must comply with the direction.

             (6)  The Minister may, by written notice given to a director of a sale scheme body, give directions to the director about the exercise of the director’s powers under subsection (2). The director must comply with the direction.

             (7)  To avoid doubt, the giving of assistance as mentioned in subsection (1), (2), (3) or (4), the making of a request under subsection (3) or (4), or the giving of or compliance with a direction under subsection (5) or (6), does not result in a contravention of, or give rise to a liability or remedy under:

                     (a)  a provision of the Corporations Law or any other law of the Commonwealth, a State or a Territory; or

                     (b)  a rule of common law or equity (other than a rule of administrative law).

Note:          The expression sale scheme body includes ANL (see section 6).

26   Giving of assistance—ancillary provisions

             (1)  The assistance mentioned in subsection 25(1), (2), (3) or (4) may take the form of:

                     (a)  the giving of information; or

                     (b)  the giving of financial assistance (within the meaning of section 205 of the Corporations Law); or

                     (c)  the giving of a financial benefit to a related party (within the meaning of Part 3.2A of the Corporations Law); or

                     (d)  the provision, by the directors or employees of a sale scheme body, of facilities, information and other assistance in connection with the conduct of:

                              (i)  a due diligence procedure or a similar process; or

                             (ii)  a market briefing or a similar process; or

                     (e)  the entering into of an agreement with the Commonwealth or ANL.

             (2)  For the purposes of paragraph (1)(b), if section 205 of the Corporations Law is repealed and replaced by another provision of the Corporations Law that deals with the giving of financial assistance by companies, the reference in that paragraph to section 205 is to be read as a reference to the replacement provision.

             (3)  For the purposes of paragraph (1)(c), if Part 3.2A of the Corporations Law is repealed and replaced by another provision of the Corporations Law that deals with the giving of financial benefits to related parties, the reference in that paragraph to Part 3.2A is to be read as a reference to the replacement provision.

             (4)  Subsection (1) does not, by implication, limit the forms in which assistance may be given.

             (5)  Section 25 does not, by implication, limit any rights that are conferred on shareholders by other laws.

             (6)  Section 25 does not, by implication, limit:

                     (a)  the executive power of the Commonwealth to enter into an agreement; or

                     (b)  the power of ANL to enter into an agreement; or

                     (c)  the capacity of a sale scheme body, or a director of a sale scheme body, to enter into an agreement with the Commonwealth or ANL.

             (7)  Section 25 extends to the giving of assistance outside Australia, whether or not in a foreign country.

27   Use of information by the Commonwealth or an ANL body

             (1)  This section applies to information obtained under section 25.

             (2)  The Commonwealth, an ANL body or an associated person, may use the information for a purpose in connection with the implementation of this Part.

             (3)  The Commonwealth, an ANL body or an associated person, may disclose the information for a purpose in connection with the implementation of this Part.

             (4)  The Commonwealth, an ANL body or an associated person, may use or disclose the information for a purpose in connection with:

                     (a)  the Commonwealth’s capacity as a shareholder in a sale scheme body; or

                     (b)  the ANL body’s capacity as a shareholder in a sale scheme body;

so long as the use or disclosure does not involve giving the information to a person who is not an associated person.

             (5)  To avoid doubt, the use or disclosure of information as mentioned in subsection (2), (3) or (4) does not result in a contravention of, or give rise to a liability or remedy under:

                     (a)  a provision of the Corporations Law or any other law of the Commonwealth, a State or a Territory; or

                     (b)  a rule of common law or equity (other than a rule of administrative law).

             (6)  In this section:

associated person means:

                     (a)  a Minister; or

                     (b)  an individual who holds an office under, or is employed by, the Commonwealth; or

                     (c)  an officer or employee within the meaning of the Public Service Act 1922 ; or

                     (d)  a person who performs services for or on behalf of the Commonwealth in connection with:

                              (i)  the implementation of this Part; or

                             (ii)  the Commonwealth’s capacity as a shareholder in a sale scheme body; or

                     (e)  a director of an ANL body; or

                      (f)  an officer or employee of an ANL body; or

                     (g)  a person who performs services for or on behalf of an ANL body in connection with:

                              (i)  the implementation of this Part; or

                             (ii)  the ANL body’s capacity as a shareholder in a sale scheme body.

28   Agreements relating to the protection of information

             (1)  The Minister for Finance and Administration may, on behalf of the Commonwealth, enter into an agreement with a person relating to the protection of information:

                     (a)  that is obtained under section 25; and

                     (b)  the publication of which might be expected to prejudice substantially a sale scheme body’s commercial interests.

             (2)  An agreement under subsection (1) may be enforced as if it were a contract.

             (3)  Subsection (1) does not, by implication, limit the executive power of the Commonwealth to enter into agreements.

             (4)  ANL may enter into an agreement with a person relating to the protection of information:

                     (a)  that is obtained under section 25; and

                     (b)  the publication of which might be expected to prejudice substantially a sale scheme body’s commercial interests.

             (5)  An agreement under subsection (4) may be enforced as if it were a contract.

             (6)  Subsection (4) does not, by implication, limit the power of ANL to enter into agreements.

29   Sale scheme body’s obligations to disclose information

             (1)  To avoid doubt, the mere fact that particular information was requested, required or given under section 25 is not a ground on which a sale scheme body can be required to disclose or notify that, or any other, information under:

                     (a)  a provision of the Corporations Law; or

                     (b)  a provision of the listing rules of a securities exchange.

             (2)  In this section:

listing rules has the same meaning as in section 1001A of the Corporations Law.

securities exchange has the same meaning as in section 1001A of the Corporations Law.

             (3)  For the purposes of subsection (2), if section 1001A of the Corporations Law is repealed and replaced by another provision of the Corporations Law that deals with continuous disclosure by listed companies, a reference in that subsection to section 1001A is to be read as a reference to the replacement provision.



 

Division 8 Injunctions

30   Injunctions

Restraining injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of this Part, the Federal Court may, on the application of the Minister for Finance and Administration, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

             (2)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be a contravention of this Part;

the Federal Court may, on the application of the Minister for Finance and Administration, grant an injunction requiring the person to do that act or thing.

31   Interim injunctions

Grant of interim injunction

             (1)  If an application is made to the court for an injunction under section 30, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.

No undertakings as to damages

             (2)  The court is not to require an applicant for an injunction under section 30, as a condition of granting an interim injunction, to give any undertakings as to damages.

32   Discharge etc. of injunctions

                   The court may discharge or vary an injunction granted under this Division.

33   Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the court under this Division to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

Performance injunctions

             (2)  The power of the court under this Division to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

34   Other powers of the court unaffected

                   The powers conferred on the court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.



 

Division 9 Miscellaneous

35   Transfers of land may be registered

             (1)  This section applies if:

                     (a)  any right, title or interest in particular land vests in a person under section 8 or 12; and

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

                              (i)  is signed by the Minister for Finance and Administration; and

                             (ii)  identifies the land; and

                            (iii)  states that the right, title or interest has become vested in the person under section 8 or 12, as the case requires.

             (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.

36   Charges may be registered

             (1)  This section applies if:

                     (a)  a person becomes, under this Part, the holder of a charge; and

                     (b)  there is lodged with the Australian Securities Commission a certificate that:

                              (i)  is signed by the Minister for Finance and Administration; and

                             (ii)  identifies the charge; and

                            (iii)  states that the person has, under this Part, become the holder of the charge.

             (2)  The Australian Securities Commission may, subject to the payment of any applicable fee:

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

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

as if the certificate were a notice of assignment of the charge that had been properly lodged with the Commission.

             (3)  In this section:

charge means a charge created in any way, and includes a mortgage and an agreement to give or execute a charge or mortgage (whether on demand or otherwise).

holder , in relation to a charge, includes a person in whose favour a charge is to be given or executed (whether on demand or otherwise) under an agreement.

37   This Part does not modify registers kept by land registration officials

                   This Part, 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.

38   Lands Acquisition Act does not apply to this Part

                   The Lands Acquisition Act 1989 does not apply in relation to anything done under this Part.

39   Legislative Instruments Act does not apply to this Part

                   To avoid doubt, an instrument made under this Part is not taken to be a legislative instrument for the purposes of the Legislative Instruments Act 1998 .

40   Transfer of pending proceedings

             (1)  This section applies if, as a result of a declaration made by the Minister for Finance and Administration under this Part, 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 for Finance and Administration 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.

41   Operation of this Part does not place a person in breach of contract etc.

                   To avoid doubt, the operation of this Part is not to be regarded as:

                     (a)  placing a person in breach of contract or confidence; or

                     (b)  otherwise making a person guilty of a civil wrong; or

                     (c)  placing a person in breach of any contractual provision prohibiting, restricting or regulating:

                              (i)  the assignment or transfer of any asset, liability, right or obligation; or

                             (ii)  the disclosure of any information; or

                     (d)  releasing any surety from any of the surety’s obligations in relation to a liability or obligation that is transferred under this Part.

42   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 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.

43   Delegation

             (1)  The Minister for Finance and Administration may, by writing, delegate to:

                     (a)  the Secretary to the Department of Finance and Administration; or

                     (b)  the Chief Executive of the Office of Asset Sales and IT Outsourcing; or

                     (c)  a person holding or performing the duties of a Senior Executive Service office (whether or not in the Department of Finance and Administration);

all or any of the functions and powers conferred on the Minister for Finance and Administration by this Part.

             (2)  In this section:

Senior Executive Service office has the same meaning as in the Public Service Act 1922 .

44   Minister not taken to be director of ANL body

                   The Minister for Finance and Administration is not taken to be a director of an ANL body for the purposes of the Corporations Law because of the powers in relation to the body that are conferred on the Minister by this Act.

45   This Part does not authorise the imposition of taxation

                   This Part does not authorise the imposition of taxation within the meaning of section 55 of the Constitution.