An Act to amend the Hearing Services Act 1991, to enact transitional provisions relating to the corporatisation of the Australian Government Health Service, and for other purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Hearing Services and AGHS Reform Act 1997.
2 Commencement
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(3) If Schedule 2 to the Reform of Employment Services (Consequential Provisions) Act 1997 does not commence before the day on which this Act receives the Royal Assent, the amendment of the definition of eligible employment services provider in subsection 6(1) of the Privacy Act 1988 made by this Act commences immediately after the commencement of Schedule 2 to the Reform of Employment Services (Consequential Provisions) Act 1997.
Part 2—Transitional provisions relating to the corporatisation of the Australian Government Health Service (AGHS)
Division 1—Introduction
3 Simplified outline
The following is a simplified outline of this Part:
• This Part provides for the corporatisation of the Australian Government Health Service (AGHS). AGHS was a part of the Department as at the commencement of this Part.
• In this Part, the new corporate structure for the operations of the AGHS is called the nominated company.
• The Commonwealth may transfer AGHS assets, contracts, liabilities and records to the nominated company.
• Provision is made for the transfer of pending proceedings.
• The balance of the Australian Government Health Service Trust Account will be transferred to the nominated company.
• The nominated company will be exempt from State and Territory taxes so long as the company is Commonwealth‑owned.
• The nominated company will not be treated as an agency of the Commonwealth.
4 Definitions
In this Part, unless the contrary intention appears:
AGHS means Australian Government Health Service.
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‑owned, in relation to a company, has the meaning given by section 6.
contract includes:
(a) a deed; and
(b) a deed poll.
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 means any liability, duty or obligation, whether actual, contingent or prospective.
nominated company has the meaning given by section 5.
5 Nominated company
(1) The Minister may, by writing, declare that a specified company is the nominated company for the purposes of this Part.
(2) The company must:
(a) be incorporated under the Corporations Act 2001; and
(b) have a share capital.
(3) The declaration has effect accordingly.
(4) A copy of the declaration is to be published in the Gazette within 14 days after the making of the declaration.
6 Commonwealth‑owned company
For the purposes of this Part, a company is Commonwealth‑owned at a particular time if, and only if, all the shares in the company are beneficially owned by the Commonwealth at that time.
7 Crown to be bound
This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
8 External Territories
This Part extends to all the external Territories.
9 Extra‑territorial operation
This Part extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.
Division 2—Transfers from the Commonwealth to the nominated company
10 Transfer of assets
(1) This section applies to an asset of the Commonwealth that was used, is used, or is proposed to be used, by the AGHS.
(2) The Minister may, by writing, make any or all of the following declarations:
(a) a declaration that a specified asset vests in the nominated company 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 the nominated company as if a reference in the instrument to the Commonwealth were a reference to the nominated company;
(c) a declaration that the nominated company becomes the Commonwealth’s successor in law in relation to a specified asset immediately after the asset vests in the nominated company.
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 14 days after the making of the declaration.
(5) A time specified under paragraph (2)(a) must be a time when the nominated company is Commonwealth‑owned.
(6) Subsection (2) does not prevent the Commonwealth from transferring an asset to the nominated company otherwise than under that subsection.
11 Transfer of contractual rights and obligations
(1) This section applies to a contract (other than a contract of employment):
(a) that related or relates to the AGHS; and
(b) to which the Commonwealth is a party.
(2) The Minister may, by writing, declare that the Commonwealth’s rights and obligations under a specified contract:
(a) cease to be rights and obligations of the Commonwealth at a specified time; and
(b) become rights and obligations of the nominated company at that time.
(3) The Minister 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 were a reference to the nominated company.
(4) The Minister may, by writing, declare that 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 the nominated company, as if a reference in the instrument to the Commonwealth were a reference to the nominated company.
(5) The Minister may, by writing, declare that the nominated company becomes the Commonwealth’s successor in law, in relation to the Commonwealth’s rights and obligations under a specified contract, immediately after the Commonwealth’s rights and obligations under the contract become rights and obligations of the nominated company.
(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 14 days after the making of the declaration.
(8) A time specified under subsection (2) or (3) must be a time when the nominated company is Commonwealth‑owned.
(9) This section does not, by implication, limit section 10.
Note: A contract or instrument may be specified by name, by inclusion in a specified class or in any other way.
12 Transfer of liabilities
(1) This section applies to a liability of the Commonwealth that related or relates to the AGHS.
(2) The Minister 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 and becomes a liability of the nominated company 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 the nominated company as if a reference in the instrument to the Commonwealth were a reference to the nominated company;
(c) a declaration that the nominated company becomes the Commonwealth’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the nominated company.
(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 14 days after the making of the declaration.
(5) A time specified under paragraph (2)(a) must be a time when the nominated company is Commonwealth‑owned.
Note: A liability or instrument may be specified by name, by inclusion in a specified class or in any other way.
13 Transfers of land may be registered
(1) This section applies if:
(a) any right, title or interest in particular land vests in the nominated company under section 10; and
(b) there is lodged with a land registration official a certificate that:
(i) is signed by the Minister; and
(ii) identifies the land; and
(iii) states that the right, title or interest has become vested in the nominated company under section 10.
(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.
14 This Division does not modify registers kept by land registration officials
This Division, in 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.
15 Transfer of pending proceedings
(1) This section applies if, as a result of a declaration made by the Minister under this Division, 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 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.
16 Transfer of records
(1) This section applies to a record of the Commonwealth that relates to the AGHS.
(2) If the nominated company is Commonwealth‑owned, the Minister may direct the Secretary to the Department to transfer specified records to the nominated company.
Note: A record may be specified by name, by inclusion in a specified class or in any other way.
(3) The Secretary to the Department must ensure that the direction is complied with.
(4) In this section:
record has the same meaning as in the Archives Act 1983.
Division 4—Exemption of nominated company from State and Territory taxes
20 Exemption of nominated company from State and Territory taxes
The nominated company is not subject to taxation under a law of a State or Territory in respect of a particular period if, throughout that period:
(a) the nominated company is Commonwealth‑owned; and
(b) the nominated company only carries on activities that are within the legislative powers of the Parliament.
Division 5—Miscellaneous
21 Nominated company not to be an agency of the Commonwealth etc.
(1) The nominated company is not taken, for the purposes of a law, to be:
(a) a Commonwealth authority; or
(b) established for a public purpose or for a purpose of the Commonwealth; or
(c) a public authority or an agency or instrumentality of the Crown;
(within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.
(2) Subsection (1) does not prevent the nominated company from being a Commonwealth authority for the purposes of the Public Service Act 1922 if paragraph (c) or (d) of the definition of Commonwealth authority in subsection 7(1) of that Act applies to the company.
(3) Subsection (2) is enacted for the avoidance of doubt.
(4) In this section:
law means:
(a) an Act of the Commonwealth or of a State or Territory; or
(b) regulations or any other instrument made under such an Act.
22 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 of Australia 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.
Endnotes
Endnote 1—About the endnotes
The endnotes provide details of the history of this legislation and its provisions. The following endnotes are included in each compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnote 5—Uncommenced amendments
Endnote 6—Modifications
Endnote 7—Misdescribed amendments
Endnote 8—Miscellaneous
If there is no information under a particular endnote, the word “none” will appear in square brackets after the endnote heading.
Abbreviation key—Endnote 2
The abbreviation key in this endnote sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended the compiled law. The information includes commencement information for amending laws and details of application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision level. It also includes information about any provisions that have expired or otherwise ceased to have effect in accordance with a provision of the compiled law.
Uncommenced amendments—Endnote 5
The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in endnote 5.
Modifications—Endnote 6
If the compiled law is affected by a modification that is in force, details of the modification are included in endnote 6.
Misdescribed amendments—Endnote 7
An amendment is a misdescribed amendment if the effect of the amendment cannot be incorporated into the text of the compilation. Any misdescribed amendment is included in endnote 7.
Miscellaneous—Endnote 8
Endnote 8 includes any additional information that may be helpful for a reader of the compilation.
Endnote 2—Abbreviation key
ad = added or inserted | pres = present |
am = amended | prev = previous |
c = clause(s) | (prev) = previously |
Ch = Chapter(s) | Pt = Part(s) |
def = definition(s) | r = regulation(s)/rule(s) |
Dict = Dictionary | Reg = Regulation/Regulations |
disallowed = disallowed by Parliament | reloc = relocated |
Div = Division(s) | renum = renumbered |
exp = expired or ceased to have effect | rep = repealed |
hdg = heading(s) | rs = repealed and substituted |
LI = Legislative Instrument | s = section(s) |
LIA = Legislative Instruments Act 2003 | Sch = Schedule(s) |
mod = modified/modification | Sdiv = Subdivision(s) |
No = Number(s) | SLI = Select Legislative Instrument |
o = order(s) | SR = Statutory Rules |
Ord = Ordinance | Sub-Ch = Sub-Chapter(s) |
orig = original | SubPt = Subpart(s) |
par = paragraph(s)/subparagraph(s) /sub-subparagraph(s) | |
Endnote 3—Legislation history
Act | Number and year | Assent | Commencement | Application, saving and transitional provisions |
Hearing Services and AGHS Reform Act 1997 | 82, 1997 | 18 June 1997 | Part 2 of Schedule 1: 1 July 1997
Schedule 4 (item 3): (a)
Remainder: Royal Assent | |
Corporations (Repeals, Consequentials and Transitionals) Act 2001 | 55, 2001 | 28 June 2001 | ss. 4–14 and Schedule 3 (item 216): 15 July 2001 (see Gazette 2001, No. S285 (b) | ss. 4–14 |
Statute Law Revision Act 2005 | 100, 2005 | 6 July 2005 | Schedule 2 (item 20): (c) | — |
Statute Law Revision Act 2006 | 9, 2006 | 23 Mar 2006 | Schedule 2 (item 19): (d) | — |
Statute Stocktake (Regulatory and Other Laws) Act 2009 | 111, 2009 | 16 Nov 2009 | Schedule 1 (items 14–16): 17 Nov 2009 | Sch. 1 (item 16) |
Financial Framework Legislation Amendment Act 2010 | 148, 2010 | 17 Dec 2010 | Schedule 11 (item 13): 18 Dec 2010 | — |
Statute Law Revision Act (No. 1) 2014 | 31, 2014 | 27 May 2014 | Sch 9 (items 5, 6): 24 June 2014 | — |
(a) Subsection 2(3) provides as follows:
(3) If Schedule 2 to the Reform of Employment Services (Consequential Provisions) Act 1997 does not commence before the day on which this Act receives the Royal Assent, the amendment of the definition of eligible employment services provider in subsection 6(1) of the Privacy Act 1988 made by this Act commences immediately after the commencement of Schedule 2 to the Reform of Employment Services (Consequential Provisions) Act 1997.
The Reform of Employment Services (Consequential Provisions) Bill 1997 was never enacted. Therefore the amendment made by Schedule 4 (item 3) of this Act will not commence.
(b) The Hearing Services and AGHS Reform Act 1997 was amended by Schedule 3 (item 216) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:
(3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.
(c) Subsection 2(1) (item 38) of the Statute Law Revision Act 2005 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
38. Schedule 2, item 20 | Immediately after the time specified in the Hearing Services and AGHS Reform Act 1997 for the commencement of item 6 of Schedule 4 to that Act. | 18 June 1997 |
(d) Subsection 2(1) (item 34) of the Statute Law Revision Act 2006 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Provision(s) | Commencement | Date/Details |
34. Schedule 2, item 19 | Immediately after the time specified in the Hearing Services and AGHS Reform Act 1997 for the commencement of item 6 of Schedule 4 to that Act. | 18 June 1997 |
Endnote 4—Amendment history
Provision affected | How affected |
Part 1 | |
s. 2 .................... | am. No. 111, 2009 |
Part 2 | |
Division 1 | |
s. 5 .................... | am. No. 55, 2001 |
Div. 3 of Part 2............. | rep. No. 148, 2010 |
ss. 17–19................. | rep. No. 148, 2010 |
Pt 3.................... | rep No 31, 2014 |
s 23.................... | rep No 31, 2014 |
Schedule 1................ | rep. No. 111, 2009 |
Sch 2................... | rep No 31, 2014 |
Sch 3................... | rep No 31, 2014 |
Sch 4................... | rep No 31, 2014 |
items 1–5................. | rep No 31, 2014 |
item 6 .................. | rs. No. 100, 2005; No. 9, 2006 |
| rep No 31, 2014 |
items 7–12................ | rep No 31, 2014 |
Endnote 5—Uncommenced amendments [none]
Endnote 6—Modifications [none]
Endnote 7—Misdescribed amendments [none]
Endnote 8—Miscellaneous [none]
