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Albury-Wodonga Development Amendment Bill 2000

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1999

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

ALBURY-WODONGA DEVELOPMENT AMENDMENT BILL 1999

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by Authority of the Minister for Regional Services, Territories

 and Local Government, Senator the Honourable Ian Macdonald)



 

Albury-Wodonga Development Amendment Bill 1999

 

Outline

 

The Purpose of the Bill is to simplify the structure and streamline the functions of the Albury Wodonga Development Corporation (AWDC) in preparation for its abolition by a future Act.  The Bill will also facilitate the winding-up of the joint Commonwealth/State scheme under which the Commonwealth, New South Wales and Victoria agreed that a new integrated urban complex be developed in the Albury-Wodonga region.  The Bill is required to implement decisions of successive Governments and the Albury Wodonga Ministerial Council to wind up the Corporation and the Scheme.

 

The Commonwealth legislation is to be integrated with State legislation in NSW and Victoria which will abolish the State Corporations and confer the assets, rights and liabilities of the State Corporations on the Commonwealth Corporation. The complementary legislation of the States will facilitate transitional arrangements and may confer additional functions on the AWDC.

 

The AWDC will become solely responsible for the disposal of the assets of the Corporations and will continue to have the capacity to adopt active asset management strategies. The Bill puts into effect decisions of the Albury-Wodonga Ministerial Council to dispose of, in an orderly manner and without distorting the market, the assets of the AWDC and the State Corporations. The acceptance of the rights, assets and liabilities of the State Corporations by the AWDC will be contingent on Ministerial approval to ensure appropriate scrutiny of the transfer arrangements.

 

A new agreement dealing with wind up of the Corporations will also be entered into between the Commonwealth and the relevant States to replace the Albury-Wodonga Area Development Agreement. It is proposed that an indicative winding up date be included in the winding-up agreement. The winding-up agreement will also deal with particulars of State functions which are to be transferred to the Corporation.  The Bill provides for staged commencement arrangements to ensure those parts of the legislation which require complementary State legislation and an agreement between the Commonwealth and the relevant States do not commence until the last of these actions is completed.

 

Key provisions of the Bill provide for redefinition of the functions of the AWDC so that it will be focused on preparing itself for winding-up.  These provisions include a specific asset disposal function for facilitating the winding-up of  the joint Commonwealth/State scheme.  The AWDC may also act as an agent of the Commonwealth for disposal of Commonwealth land in the Albury-Wodonga region.

 

Simplified  membership provisions are to be introduced.  Members appointed by the Minister will replace the Ministerial Council.  A requirement for members to have knowledge and understanding of the Albury-Wodonga region will assist in maintaining a regional focus during the wind down period.

 

Provisions have been included for a winding-up plan and for annual operational plans. This is consistent with Ministerial Council decisions and the new role of the Corporation.  This will reinforce a new strategic focus on winding-up the Corporation and will enhance accountability during the winding- up period.

 

The Bill provides for the repeal of the Albury-Wodonga Development (Financial Assistance) Act 1973 which provides a mechanism for funding the relevant States.  This Act is no longer required with the abolition of the State Corporations.

 

Financial Impact Statement

 

Investments in the Scheme by the States and the Commonwealth are to be recouped from the sale of assets by the AWDC.

 

There will be a one off payment to Victoria of $3.8m after the Commonwealth and States’ legislation is passed.  No payments will be due to NSW.  A payment of $10.2m has been made to the Commonwealth in 1999/2000.

 

It is anticipated that the return to the Commonwealth will be $15.0m in 2000/2001.  The return in future years will depend on the success in disposal of assets and may fluctuate depending on market circumstances.

 



 

Albury-Wodonga Development Amendment Bill 1999

 

Notes on Clauses

 

1.         Clause 1

The first clause provides that the Act may be cited as the Albury-Wodonga Development Amendment Act 1999 .

 

2.         Clause 2

Clause 2 provides for commencement of the Act on a staged basis.  This is necessary to ensure that the machinery parts of the legislation which are not dependent on complementary actions of the States of NSW and Victoria commence on Royal Assent, while that part of the legislation which requires complementary State legislation and an Agreement between the Commonwealth and the relevant States does not commence until the last of these actions is completed.

 

3.         Clause 3

Clause 3 is a machinery provision which provides that Acts specified in the schedules are amended or repealed as set out in the applicable items in the schedule concerned.

 

Schedule 1 - Amendment of the Albury-Wodonga Development Act 1973

 

Part 1 - Amendments commencing on Royal Assent

 

4.         Item 1

Item 1 provides for a definition of “Winding-up Agreement”.  This is a new form of agreement that will replace the original Commonwealth/State Agreements.

 

5.         Item 2 - Part 1A - Albury-Wodonga Area Development Winding-up Agreement

Item 2 provides for the mechanism for the Minister to make a Winding-up Agreement through a disallowable instrument in an approved form and for Parliamentary approval upon signature of the parties.  It also specifically provides for commencement in accordance with the staged commencement arrangements and for simultaneous termination of the original Commonwealth/State Agreement.

 

Part 2 - Amendments commencing on Proclamation

 

6.         Items 3-12

Item 3 - Item 12 repeal, amend and introduce new definitions which are consistent with the new winding up functions and streamlined operations of the Corporation.

 

 

 

7.         Item 13

Item 13 removes a provision that makes definitions in the Agreement automatically apply to the Act.  Such a provision is inappropriate for a proposed Winding-up Agreement which does not form part of the Act.  Provision is made in Part 1A for termination of the original Commonwealth/State Agreement.

 

8.         Item 14

Item 14 repeals those powers of the Minister which are dependent on conferral under a State Act or an Agreement with the relevant States.  These powers are no longer necessary as the Minister will not be performing functions under State Acts.

 

9.         Item 15

Item 15 repeals part II which provides for approval of the former Albury -Wodonga Area Agreements, as these provisions are no longer necessary with the termination of the Agreements through Section 5D.

 

10.       Item 16

Item 16 repeals the existing functions of the Corporation and substitutes new functions which reflect the role of the organisation to prepare itself for winding up.  The new functions will provide the necessary flexibility for the orderly disposal of assets.  In particular it provides for the acquisition of the assets of the former State Corporations and for the disposal of Corporation assets and for the acceptance of State functions.  The States of NSW and Victoria will need to confer certain functions on the Corporation by State law, and the relevant State laws will need to be declared by the Minister under subsection 8(3).  The functions to be conferred will be clarified through reference to the Winding-up Agreement. 

 

11.       Item 17

Item 17 clarifies the power of the Corporation to enter into agreements and contracts and redrafts existing provisions.

 

12.       Item 18

Items 18, 28, 36, 42, 44, 56, 57, 61 and 63 remove the word “Australian” before Minister, as this distinction from State Minister is no longer necessary with the withdrawal of the State roles.

 

13.       Item 19

Items 19, 22 and 54 provide a specific reference to the “Winding-up Agreement” for purposes of clarification in lieu of “Agreement”.  Part 1A provides for an “Albury - Wodonga Winding-Up Agreement” and this is defined in subsection 3(1).

 

14.       Item 20

14.1       Item 20 removes a provision confining activities to designated areas as the concept of designated areas is unnecessary when operations are being wound down.

 

14.2       An unrelated provision is substituted which clarifies how functions and powers conferred by the relevant States for facilitating disposal of assets, winding up and facilitating winding-up of the joint Commonwealth/State scheme are complementary to the Act.  This is to reinforce the constitutional validity of functions, powers and duties which are exercised in the winding up of the Corporation.

 

15.       Item 21

Item 21 makes the Minister responsible for issuing directions to the Corporation, rather than the Ministerial Council which is to have no role under the legislation.

 

16.       Item 22

Item 22 (see item 19).

 

17.       Item 23

Item 23 clarifies that winding up functions do not require disposal of all assets  or prevent conferral of functions on the Corporation by the relevant States.

 

18.       Item 24

Item 24 provides for changes to the composition of the Corporation, which will result in the Corporation consisting of a Chairperson, two other members and the Chief Executive Officer.

 

19.       Item 25

Item 25 makes new eligibility criteria for the Chairperson and appointed members based upon knowledge and understanding of issues relating to the development of the Albury-Wodonga region.  It reflects an intention to provide the basis for balanced and informed representation.

 

20.       Item 26

Item 26 removes membership nomination provisions which are not relevant to the new membership structure.

 

21.       Item 27

Item 27 removes the bar on persons over the age of 65 being members in accordance with current Commonwealth practice.

 

23.       Item 28

Item 28 (see item 18).

 

24.       Item 29

Item 29 removes a reference to executive members.  The new membership structure does not include this category of member.

 

25.       Item 30

Item 30 removes a reference to the “Area” and substitutes “Albury-Wodonga region”.  The concept of an “Area” which may be designated has been removed from the Bill because it is unnecessary in the wind-up phase where the AWDC will be primarily disposing of assets.

 

26.       Item 31

Items 31,32 and 45 substitute “Minister” for “Ministerial Council”, as the Ministerial Council will no longer have a role with respect to the Corporation under the legislation.

 

27.       Item 32

Item 32 (see item 31).

 

28.       Item 33

Item 33 removes a reference to a process of State nomination for a Deputy Chairperson of the AWDC as this office will not continue under the revised membership arrangements.

 

29.       Item 34

Items 34, 35, 37, 39, 40 and 41 remove references to “Deputy Chairperson” or “Deputy Acting Chairperson” as these offices are abolished under the amended Act.

 

30.       Item 35

Item 35 (see item 34).

 

31.       Item 36

Item 36 (see item 18).

 

32.       Item 37

Item 37 (see item 34).

 

33.       Item 38

Item 38 removes a requirement to consult with a State Minister concerning the appointment of an acting Deputy Chairperson, as the office is abolished under the amended Act and the State will have no ongoing role.

 

34.       Item 39

Item 39 (see item 34).

 

35.       Item 40

Item 40 (see item 34).

 

35.       Item 41

Item 41 (see item 34).

 

36.       Item 42

Item 42 (see item 18).

 

37.       Item 43

Item 43 removes a requirement to obtain nominations from the Ministerial Council and for consultations with Councils concerning acting member appointments.  The Ministerial Council will have no role under the amended Act and no specific provision is to be made for (local) Council membership.

 

38.       Item 44

Item 44  (see item 18).

 

39.       Item 45

Item 45 (see item 31).

 

40.       Item 46

Items 46 and 49 provide that an appointed member rather than a “Deputy Chairperson” may substitute for the Chairperson in certain meeting contexts.  This reflects the simplified membership structure of the Corporation.

 

41.       Item 47

Item 47 removes a provision which requires the Minister or Chairperson to convene a meeting at the request of two members, as such a provision is redundant with the revised membership structure.

 

42.       Item 48

Item 48 removes a reference to executive members.  The new membership structure does not include this category of member.

 

43.       Item 49

Item 49 (see item 46).

 

44.       Item 50

Item 50 substitutes a redrafted delegation provision.  It clarifies that the Corporation may delegate its powers and functions to members, officers and employees.

 

  45.      Item 51 Part IV

Item 51 provides for additions to Part IV through a new Part IVA which requires the Corporation to prepare operational and winding-up plans and a Part IVB which provides for the transfer of assets, contracts and liabilities from State bodies to the Corporation.  The provisions in Part IV are based on transfer concepts common in other Commonwealth legislation.

 

PART IVA

46.       Subsection 20A

Subsection 20(A) provides for a  “winding-up plan”.  The plan, which is subject to Ministerial Direction, must set out how the Corporation will perform its functions and must inform the Minister of matters that might significantly affect the carrying out of the plan.  This provision will provide a framework for monitoring the winding up of the Corporation.

 

47.       Subsection 20B

Subsection 20(B) makes provision for an annual operational plan to give effect to the winding-up plan.  The two plans will provide direction to the Corporation and enhance accountability.

 

Part IVB

48.       Subsection 20C

Subsection 20(C) includes definitions of contract, instrument and relevant State body.

 

49.       Subsection 20D

Subsection 20D provides for the transfer of assets from relevant State bodies to the Corporation and for matters incidental to the transfer of assets.  It provides that the Minister must consent and gazette the transfer of assets or classes of assets conferred by relevant State laws.  This is necessary to ensure appropriate scrutiny of the transfer process.

 

50.       Subsection 20E

Subsection 20E provides for the transfer of contractual rights and obligations from relevant State bodies to the Corporation and for matters incidental to the transfer of contractual rights and obligations.  It provides that the Minister must consent and gazette the transfer of rights and obligations conferred by relevant State laws.  This is necessary to ensure appropriate scrutiny of the transfer process.

 

51.       Subsection 20F

Subsection 20F provides for the transfer of liabilities from relevant State bodies to the Corporation and for matters incidental to the transfer of liabilities.  It provides that the Minister must consent and gazette the transfer of liabilities or classes of liabilities conferred by relevant State laws.  This is necessary to ensure appropriate scrutiny of the transfer process.

 

52.       Subsection 20G

Subsection 20G makes it explicit that the transfers will not be subject to taxation.

 

53.       Subsection 20H

Subsection 20H provides a constitutional safety net to guarantee that provisions in Part IV which result in the acquisition of property meet constitutional compensation requirements.

 

54.       Item 52

Item 52 removes a reference to the development of the growth complex, as this concept is unnecessary in the winding up phase of the Corporation.

 

55.       Item 53

Item 53 removes the capacity of the Corporation to borrow funds from the States of New South Wales and Victoria, as this is no longer appropriate with the Commonwealth assuming responsibility for the assets and liabilities of the State Corporations.

 

56.       Item 54

Item 54 (see item 19).

 

 

57.       Item 55

Item 55 removes the requirement for the Corporation to obtain Ministerial Council approval of contracts for the acquisition or disposal of property, as the Ministerial Council is to have no role under the legislation.  With the revised functions, it is appropriate that the Minister’s power of direction be used to provide more flexible arrangements as warranted.

 

58.       Item 56

Item 56 (see item 18).

 

59.       Item 57

Item 57 (see item 18).

 

60.       Item 58

Item 58 removes a requirement for referral of Audited Statements to the Ministerial Council, as the Ministerial Council is to have no role under the legislation.

 

61.       Item 59

Item 59 provides the Minister with a power to delegate all his powers other than the approval of the Winding-up Agreement to an officer of the Senior Executive Service of the Commonwealth.

 

62.       Item 60

Item 60 removes the requirement to prepare a report on the State Corporation’s operations as the State Corporations are to be abolished.

 

63.       Item 61

Item 61 (see item 18).

 

64.       Item 62

Item 62 removes a requirement for referral of operational and financial statements to the Ministerial Council, as the Ministerial Council is to have no role under the legislation.

 

65.       Item 63

Item 63 (see item 18).

 

66.       Item 64

Item 64 repeals schedules1, 2 and 3, which are the original Albury-Wodonga Area Development Agreement and amendments to the Agreement.  These are no longer necessary and are to be replaced by an Albury-Wodonga Area Winding-Up Agreement under Part 1A.

 

67.       Item 65

Item 65 clarifies that appointments made after an amendment to subsection 10(3), which applies the appointment criteria of knowledge and understanding of the Albury-Wodonga Region, are subject to these provisions from the date of commencement.

 

68.       Item 66

Item 66 is a saving provision to ensure that any imperfection in the appointment process of an existing member under the previous provisions does not affect his ongoing appointment.

 

69.       Item 67

Item 67 is a transitional provision to ensure the terms and conditions of the appointment of the Chief Executive Officer before the commencement of this item are unaffected by the amendments.

 

70.       Item 68

Item 68 is a transitional provision to ensure determinations applying to the terms and conditions of appointed members in force immediately before the amendments apply as determinations under the amended Act.

 

71.       Item 69

Item 69 is a transitional provision to ensure determinations applying to the terms and conditions of acting members in force immediately before the amendments apply as determinations under the amended Act.

 

72.       Item 70

Item 70 is a transitional provision to clarify that the requirement for an annual operational plan in the new provision under subsection 20(B)(1) of the Act does not require a plan to be prepared for the financial year in which the amendment commences.

 

73.       Item 71

Item 71 ensures that the Corporation shall continue to prepare annual reports for the State Corporations for that part of the financial year in which they continued to exist, notwithstanding an amendment to the Act which deletes a requirement to report for the State corporations.

 

SCHEDULE 2

 

74.       Item 1

Item 1 repeals the Albury-Wodonga Development (Financial Assistance) Act 1973 .  This Act provides for a process for the Commonwealth to provide financial assistance to the States.  It is redundant with the abolition of the State Corporations.