COAL INDUSTRY REPEAL (VALIDATION OF PROCLAMATION) BILL 2002

OUTLINE

This Bill makes provision that the Coal Industry Repeal Act 2001 commenced on 1 January 2002.

The intention of the Coal Industry Repeal Act 2001 is to dissolve the Joint Coal Board and transfer all of its functions, staff, assets and liabilities to New South Wales. The New South Wales Government enacted complementary legislation to establish a new body, Coal Services Pty Ltd, to manage the former functions of the Joint Coal Board. Commonwealth and New South Wales legislation were both passed in 2001 with the support of both sides of their respective Parliaments.

This Bill is necessary to ensure that the Coal Industry Repeal Act 2001 commenced on 1 January 2002 as intended by the Proclamation signed by the Governor General in Executive Council on 20 December 2001. An omission to gazette the Proclamation before 1 January 2002 means that the Coal Industry Repeal Act 2001 may not have commenced as was intended. New South Wales has acted as if the Proclamation had been properly constituted. It is necessary to validate 1 January 2002 as the commencement date so as to validate all actions taken on the assumption that 1 January 2002 was the commencement date of the Coal Industry Repeal Act 2001.

Financial impact statement

This bill has no financial impacts.

COAL INDUSTRY REPEAL (VALIDATION OF PROCLAMATION) BILL 2002

NOTES ON CLAUSES

Clause 1: Short title

1.       This clause is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.       This Clause provides a table that specifies the various commencement dates for each clause of the Bill. Clauses 1, 2 and 6 will commence from the date on which the Act receives the Royal Assent. Clauses 3, 4 and 5 will commence retrospectively from 31 December 2001 as soon as the Act receives the Royal Assent. This retrospective commencement date is needed to ensure that the Coal Industry Repeal Act 2001 commences on 1 January 2002.

Clause 3: Objects

3.       This clause indicates the objectives or intention of the Bill.

4.       The first objective (clause 3(a)) is that the Coal Industry Repeal Act 2001 commences on 1 January 2002.

5.       The Coal Industry Repeal Act 2001 provides for the dissolution of the Joint Coal Board and supports New South Wales legislation, the Coal Industry Act 2001 (NSW), to provide for the transfer of all the staff, assets, rights and liabilities of the Joint Coal Board. Section 2 of the Coal Industry Repeal Act 2001 indicates that it will commence on a day to be fixed by Proclamation. The Governor General in Executive Council on 20 December 2001 signed a Proclamation fixing 1 January 2002 as the commencement date. However, the Proclamation was not gazetted prior to 1 January 2002, which may mean that the Proclamation is not effective and that the Coal Industry Repeal Act 2001 may not have commenced.

6.       New South Wales acted as if the Proclamation was effective and provided the necessary triggers for its own legislation to come into effect. Action has been taken to transfer the property and staff of the Joint Coal Board to a new corporation, Coal Services Pty Ltd, which in turn has been using these resources to manage the former functions of the Joint Coal Board. The second objective (clause 3(b)) is to validate all actions, such as these, taken on the assumption that 1 January 2002 was the commencement date of the Coal Industry Repeal Act 2001.

Clause 4: Validation of Proclamation

7.       This clause validates 1 January 2002 as the commencement date for the Coal Industry Repeal Act 2001 and validates all actions taken on the assumption that this was the commencement date. It does this by indicating in clause 4(2) that the Proclamation is as effective as if it had been published in the Gazette before 1 January 2002. Clause 4(1) identifies the Proclamation as the purported Proclamation that fixed the commencement date as 1 January 2002, was signed by the Governor General on 20 December 2001 and was not published in the Gazette before 31 December 2001.

Clause 5: Acquisition of property

8.       Section 7 of the Coal Industry Repeal Act 2001 provides that the Commonwealth pay reasonable compensation if the operation of that Act results in the acquisition of property that is not on just terms. This clause ensures that Section 7 of the Coal Industry Repeal Act 2001 also applies to this Act.

Clause 6: Validation of Commonwealth and New South Wales actions

9.       This Clause is to avoid any doubt about the validity of any `past acts' taken between 1 January 2002 and the date on which this Act receives Royal Assent. Clause 6(1) broadly defines a `past act' as any act that was done on the assumption that the Coal Industry Repeal Act 2001 commenced on 1 January 2002. Clause 6(2) ensures that `past acts' are as valid as if the Coal Industry Repeal Act 2001 had commenced on 1 January 2001, subject - as referred to in Clause 6(3) - to the legislative powers of the Commonwealth. In case these legislative powers are considered to be too broadly defined (in the case say of a High Court challenge), Clause 6(4) is a safety net provision that provides specific reliance on the legislative powers associated with the corporations powers of the Commonwealth under paragraph 51(xx) of the Constitution.

10.       Clauses 6(5) and 6(6) recognises that New South Wales may want to make its own legislation to validate `past acts'. These provisions support NSW making laws that can run concurrently with Commonwealth legislation. They also aim to avoid doubt, which may arise for instance because of legal jurisdictional restrictions between the Commonwealth and the States, about the capacity of New South Wales to make a law validating `past acts'.