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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN ASTRONOMICAL OBSERVATORY (TRANSITIONAL PROVISIONS) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Innovation, Industry,
Science and Research the Honourable Kim Carr)
AUSTRALIAN ASTRONOMICAL OBSERVATORY (TRANSITIONAL PROVISIONS) BILL 2009
OUTLINE
The Australian Astronomical Observatory (Transitional Provisions) Bill 2009
(the Bill) contains transitional provisions related to the proposed
establishment of the Australian Astronomical Observatory (the AAO) within
the Department of Innovation, Industry, Science and Research (the
Department) by the Australian Astronomical Observatory Bill 2009 (the AAO
Bill).
The Bill is part of a package of Bills that provide for the Anglo-
Australian Telescope Board (the Board), which operates the Anglo-Australian
Observatory (the Observatory), to be dissolved and for the Observatory to
be re-established as the Australian Astronomical Observatory within the
Department of Innovation, Industry, Science and Research (the Department).
In 1969, the Government of the Commonwealth of Australia (Australian
Government) and the Government of the United Kingdom of Great Britain and
Northern Ireland (UK Government) entered into a treaty for that provided
for a bi-national authority to be established to operate a large optical
telescope in Australia with financial assistance from both the Australian
and UK Governments (the Agreement). As a result, the Board was established
by the Anglo-Australian Telescope Agreement Act 1970.
Today, the Board operates astronomical facilities known as the Anglo-
Australian Observatory. The Anglo-Australian Observatory consists
principally of a national observatory located at Siding Spring Observatory
near Coonabarabran in New South Wales and a headquarters and
instrumentation laboratory located at Epping in New South Wales. In 2005,
the UK Government decided to withdraw from its involvement in the Agreement
with effect from 1 July 2010. Arrangements to give effect to this are
contained in a treaty between the Australian Government and the UK
Government dated 3 November 2005 (the Supplementary Agreement). The
Supplementary Agreement provides for the Board to be dissolved and for its
assets to be transferred to the Australian Government.
The Bill and AAO Bill give effect to the Supplementary Agreement.
Schedule 1 to the Bill provides for the repeal of the Anglo-Australian
Telescope Agreement Act 1970.
Schedule 2 to the Bill contains the transitional provisions in relation to
the establishment of the AAO as a unit within the Department. These
provisions include provisions dealing with the transfer of employees of the
Board to the Commonwealth (the Department) as APS employees, and the
transfer of assets and liabilities. Schedule 2 also contains provisions in
relation to the final annual report of the Board and financial statements
of the Board, and other miscellaneous provisions.
FINANCIAL IMPACT STATEMENT
The financial impact of the establishment of the AAO is outlined in the
Explanatory Memorandum for the Australian Astronomical Observatory Bill.
AUSTRALIAN ASTRONOMICAL OBSERVATORY (TRANSITIONAL PROVISIONS) BILL 2009
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the
Australian Astronomical Observatory (Transitional Provisions) Act 2009.
Clause 2 - Commencement
Subclause 2(1) provides that sections 1 to 3, and anything in the Bill not
elsewhere covered in the table commence operation on the day the Bill, when
enacted, receives Royal Assent. Schedules 1 and 2 commence at the same time
as the Australian Astronomical Observatory Act 2009 commences (on 1 July
2010).
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule to the Bill
is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule has effect according to its
terms.
Schedule 1 - Repeal of the Anglo-Australian Telescope Agreement Act 1970
Item 1 - The whole of the Act
Item 1 repeals the whole of the Anglo-Australian Telescope Agreement Act
1970. The effect of the provision, in part, is to dissolve the Board.
Schedule 2 - Transitional Provisions
The objects of the transitional provisions in Schedule 2 are, broadly
speaking, to provide for the continuation of the current AAO business, and
to ensure that the operations, assets and liabilities are seamlessly
transferred to the Commonwealth. Staffing conditions and entitlements are
to be maintained.
Part 1 - Introduction
Item 1 - Definitions
Item 1 sets out the definitions of words used in Schedule 2 to the Bill.
Part 2 - Transfer of assets and liabilities
Item 2 - Vesting of assets of Board
Item 2 provides that the assets of the Board immediately before the
transition time (the time when Schedule 2 commences) cease to be assets of
the Board and become assets of the Commonwealth.
The effect of item 2 is that at the transition time, the assets of the
Board immediately before the transition time would become the assets of the
Commonwealth without the need for any conveyance, transfer or assignment.
The Commonwealth would become the Board's successor in law in relation to
those assets.
Item 3 - Vesting of liabilities of Board
Item 3 provides that the liabilities of the Board immediately before the
transition time cease to be liabilities of the Board and becomes
liabilities of the Commonwealth.
The effect of item 3 is that at the transition time, the liabilities of the
Board immediately before the transition time would become the liabilities
of the Commonwealth without the need for any conveyance, transfer or
assignment. The Commonwealth would become the Board's successor in law in
relation to those liabilities.
Item 4 - Transfers of land may be registered
Item 4 enables land that vests in the Commonwealth under Part 2 of Schedule
2 to be registered. It is noted that, as of the date of introduction of
this Bill to the Parliament, the Board has no registered assets in land to
be transferred and that this item is not expected to be used.
The procedure is as follows:
. The Minister signs a certificate identifying the land and stating
that the land has become vested in the Commonwealth under Part 2 of
Schedule 2.
. The certificate is lodged with a land registration official (the
Registrar of Titles or other proper officer of the State or Territory
in which the land is situated).
. The land registration official may deal with and give effect to the
certificate, and may 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.
Subitem 4(3) provides that a certificate made under subitem 4(1) is not a
legislative instrument. This is because it is not legislative in character
and therefore not within the meaning of section 5 of the Legislative
Instruments Act 2003. Subitem 4(3) confirms this and is included to assist
readers.
Item 5 - Certificates relating to vesting of assets other than land
Item 5 provides for assets other than land which vest in the Commonwealth
under Part 1 of Schedule 2 to be registered.
The procedure is as follows:
. The Minister signs a certificate identifying the asset and stating
that the asset has become vested in the Commonwealth under Part 2.
. The certificate is lodged with an assets official (the person or
authority who, under a law of the Commonwealth, a State or a
Territory, a trust instrument or otherwise, has responsibility for
keeping a register in relation to the assets of the kind concerned).
. The assets official may 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 make such entries in a register
as are necessary having regard to the effect of Part 2 of Schedule 2
to this Bill.
Subitem 5(3) provides that a certificate under subitem (1)(b) is not a
legislative instrument. This is because it is not legislative in character
and therefore not within the meaning of section 5 of the Legislative
Instruments Act 2003. Subitem 5(3) confirms this and is included to assist
readers.
Part 3 - Transfer of other matters
Item 6 - Transitional - acts of the Board to be attributed to the
Commonwealth
Item 6 provides that anything done by, or in relation to, the Board before
the transition time (defined as when Schedule 2 commences) has effect after
the transition time as if it had been done by, or in relation to, the
Commonwealth.
Item 7 - Substitution of Commonwealth as a party to certain pending
proceedings
Item 7 provides that in any proceedings to which the Board was a party in
any court or tribunal immediately before the transition time, the
Commonwealth is substituted for the Board, from the transition time, as a
party to the proceedings.
This provision is designed to ensure that any existing litigation is not
affected by the dissolution of the Board.
Item 8 - Transitional - transfer of records to the Department
Item 8 provides for any records or documents that were in possession of the
Board immediately before the transition time to be transferred to the
Department after the transition time.
Item 9 - Transfer of Ombudsman investigations
Item 9 provides that if, before the transition time, a complaint was made
to, or an investigation was being carried out by, the Ombudsman under the
Ombudsman Act 1976 in relation to an action taken by the Board; and
immediately before the transition time, the Ombudsman had not finally
disposed with the matter in accordance with the Ombudsman Act 1976, the
Ombudsman Act 1976 applies after the transition time as if that action had
been taken by the Department.
This provision is designed to ensure that existing matters before the
Ombudsman are not affected by the dissolution of the Board.
Item 10 - References in certain instruments to the Board
Subitem 10(1) provides for references to the Board in certain instruments
to be taken as references to the Commonwealth at the transition time. The
purpose is to ensure that existing instruments (e.g. contracts) continue to
operate as intended after the transition. The instruments to which subitem
10(1) apply are: instruments made by the Board, instruments to which the
Board was a party, instruments that were given to, or in favour of, the
Board, instruments under which any right or liability accrues or may accrue
to the Board or any other instruments which refer to the Board.
Subitem 10(2) defines the term 'instrument' for the purposes of subitem
10(1). Some legal instruments are exempted from the definition of an
instrument because it is appropriate for references to the Board in those
instruments to stand.
Item 11 - Transfer of appropriated money
Item 11 provides that for the purposes of the operation of an Appropriation
Act (an Act appropriating money for expenditure out of the Consolidated
Revenue Fund) after the transition time, references to the Board are to be
read as references to the Department.
Part 4 - Finance and annual report
Item 12 - Audit
Subitem 12(1) provides that, despite the repeal of section 14 of the Anglo-
Australian Telescope Agreement Act 1970, that section continues to apply in
relation to an inspection and audit carried out in respect of a financial
year that began on or before 1 July 2009, as if that section had not been
repealed.
Subitem 12(2) provides that subitem (1) has effect subject to subitems (3)
and (4). The effect of those subitems is that a reference in section 14 to
records of the Board and to an employee of the Board includes a reference
to records transferred to the Department under item 8 of Schedule 2 and a
reference to an APS employee in the Department, respectively.
The purpose of the provision is to preserve the Auditor-General's powers
and obligations to audit the financial records of the Board for the 2009
(and any previous) financial year under s 14 of the Anglo-Australian
Telescope Agreement Act 1970.
Item 13 - Final financial statements
Subitem 13(1) provides that, despite the repeal of section 19 of the Anglo-
Australian Telescope Agreement Act 1970, that section continues to apply in
relation to financial statements for the financial year that began on 1
July 2009 as if that section had not been repealed.
However, subitem 13(2) makes it clear that the obligation to prepare and
provide those financial statements is imposed on the responsible financial
officer instead of the Board. This provision was inserted to enable the
financial statements to be prepared by the responsible financial officer
(an officer appointed under item 15) rather than the Board.
Item 14 - Final annual report
Subitem 14(1) provides that the responsible financial officer must, as soon
as practicable after the end of the financial year that began on 1 July
2009, prepare and give to the Minister, for presentation to the Parliament,
a report on the operations of the Board during that year.
Subitem 14(2) provides that a report under subitem 14(1) is taken to be a
periodic report for the purposes of section 34C of the Acts Interpretation
Act 1901.
Item 15 - Responsible financial officer
Item 15 enables the Secretary to appoint a person, in writing, as the
responsible financial officer for the purposes of Schedule 2. The
Secretary must not appoint a person under subitem 15(1) unless the person
is an SES employee or acting SES employee or holds, or is acting in, an
Executive Level 1 or 2 position or an equivalent position. It is
anticipated that the person will have knowledge of the operations of the
AAO for its financial year.
Part 5 - Employees of the Board
Item 16 - Terms and conditions of employment
Item 16 sets out the terms and conditions of employment for employees
transferring from the Board to the Department as APS employees (other than
SES employees) and new employees. The purpose is to ensure that the AATB
Enterprise Agreement 2007-2010 or a subsequent agreement will continue to
apply to both transferring employees (other than SES employees) and will
also apply to new employees (other than SES employees).
Subitem 16(1) defines transferring employees.
Subitem 16(2) provides that where a person is a transferring employee and
immediately before the transition time, the person's employment by the
Board was covered by a 'designated agreement' (defined in subitem 16(5) as
the AATB Enterprise Agreement 2007-2010 or an enterprise agreement), then
that agreement covers the Commonwealth and the transferring employee in
relation to the AAO work and there is taken to be no other enterprise
agreement, modern award or award-based transitional instrument that covers
the Commonwealth and the transferring employee in relation to the AAO work.
Subitems 16(1), 16(2) and 16(3) draw a distinction between APS employees
and SES employees. An SES employee is not regarded as a 'transferring
employee' for the purposes of item 16 (see subitem 16(1)). This is because
under the Australian Government Employment Bargaining Framework, SES
employees are not to be covered by the enterprise agreement which covers
non-SES employees in any agency. Similarly, a 'new employee' cannot be an
SES employee (see subitem 16(3)). Further, where a transferring employee
becomes an SES employee after the transition time (i.e., by a promotion),
the employee will cease to be covered by the designated agreement.
Subitem 16(3) deals with the terms and conditions of new employees -
namely, employees who are not transferring employees and are not SES
employees.
Subitem 16(4) covers employees who join the Department as performing AAO
work. In such circumstances, the designated agreement would cover the
Commonwealth and the new employee in relation to the AAO work, and no other
enterprise agreement, modern award or award-based transitional instrument
is taken to cover the new employee in relation to the AAO work. This
excludes other agreements (for example a new Departmental Enterprise
Agreement) from applying to such an employee.
Subitem 16(5) sets out the definitions of words used in this item.
Item 17 - Accrued entitlements
The purpose of item 17 is to ensure that the entitlements of employees
transferring from the Board to the Department as APS employees continue in
existence and are not affected by the transfer. The item provides for such
people to have accrued entitlements to benefits which applied to their
employment by the Board immediately before the transition time (see subitem
17(1) and subitem 17(2)).
Subitem 17(3) provides that a person's service as an employee of the Board
is taken, for all purposes, to have been continuous with his or her service
as an APS employee.
Item 18 - Long service leave
The purpose of item 18 is to ensure that employees' service in the Board
will be recognised for long service leave purposes under the when the
employees are engaged in the Department. Item 18 provides that service in
the Board is deemed to be a period of Government or qualifying service for
the purposes of the Long Service Leave (Commonwealth Employees) Act 1976.
Item 19 - Safety, Rehabilitation and Compensation Act 1988 - rehabilitation
provisions
Item 19 provides that after the transition time the Department is to be
taken to be the relevant employer of an employee who, before the transition
time, suffers an injury resulting in an incapacity for work or an
impairment for the purposes of the Safety, Rehabilitation and Compensation
Act 1988. The purpose of item 19 is to ensure that the Department is
recognised as the relevant employer of Board employees who transfer to the
Department as APS employees in respect of an injury or incapacity sustained
before the transition time.
Part 6 - Miscellaneous
Item 20 - Exemption from stamp duty and other State or Territory taxes
Item 20 is required to ensure that State and Territory taxes such as stamp
duty do not apply to the operations of Schedule 2 to the Bill. For
example, no stamp duty will be payable on the transfer of land under
Schedule 2.
This item provides that no stamp duty or other tax is payable under a law
of a State or Territory in respect of an exempt matter or anything
connected with an exempt matter (subitem 20 (1)). 'Exempt matter' is
defined subitem 20 (2) as the vesting of an asset or liability under
Schedule 2 or any other operation of Schedule 2.
Under subitem 20(3) the Minister may certify in writing that a specified
matter is an exempt matter or that a specified thing is connected with an
exempt matter. If the Minister does so, the certificate is prima facie
evidence in all courts and for all purposes (other than in criminal
proceedings) of matters stated in the certificate.
Item 21 - Constitutional safety net
Item 21 has been included in Schedule 2 to the Bill to ensure that to the
extent that the operation of Schedule 2 would result in an acquisition of
property from a person otherwise than on just terms contrary to s 51(xxxi)
of the Constitution, the Commonwealth will be liable to pay a reasonable
amount of compensation to the person.
Subitem 21(2) provides that where the Commonwealth and the person cannot
agree on the amount of 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 is determined by the court.
Item 22 - Certificates taken to be authentic
Item 22 provides that a document which purports to be a certificate made or
issued under a provision of Schedule 2 is taken to be such a certificate
and to have been properly given, unless the contrary is established. Item
22 is included to enable persons to assume that a document purporting to be
a certificate is a validly issued certificate under Schedule 2, unless
there is evidence to the contrary.
Item 23 - Delegation by Minister
Item 23 enables the Minister to delegate, in writing, all or any of his or
her powers and functions under Schedule 2 to the Secretary of the
Department or an SES employee, or acting SES employee, in the Department
(subclause 23(1) and subclause 23(2)). Subclause 23(3) provides that in
exercising power or functions under a delegation, the delegate must comply
with any directions of the Minister.
Item 24 - Transitional - regulations
Item 24 provides that the Governor-General may make regulations in relation
to transitional matters arising out of the repeal of the Anglo-Australian
Telescope Agreement Act 1970.