Contents
Part 1—Preliminary 1
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
Part 2—Transitional provisions relating to the corporatisation of the Australian Government Health Service (AGHS) 2
Division 1—Introduction 2
3............ Simplified outline................................................................................ 2
4............ Definitions.......................................................................................... 2
5............ Nominated company.......................................................................... 3
6............ Commonwealth‑owned company....................................................... 3
7............ Crown to be bound............................................................................. 4
8............ External Territories............................................................................. 4
9............ Extra‑territorial operation................................................................... 4
Division 2—Transfers from the Commonwealth to the nominated company 5
10.......... Transfer of assets............................................................................... 5
11.......... Transfer of contractual rights and obligations.................................... 5
12.......... Transfer of liabilities........................................................................... 7
13.......... Transfers of land may be registered.................................................... 7
14.......... This Division does not modify registers kept by land registration officials 8
15.......... Transfer of pending proceedings........................................................ 8
16.......... Transfer of records............................................................................. 8
Division 3—Transfer of certain amounts to the nominated company 10
17.......... Transfer time.................................................................................... 10
18.......... Transfer of Trust Account balance to nominated company............. 10
19.......... Transfer of Reserve balance to nominated company........................ 10
Division 4—Exemption of nominated company from State and Territory taxes 12
20.......... Exemption of nominated company from State and Territory taxes. 12
Division 5—Miscellaneous 13
21.......... Nominated company not to be an agency of the Commonwealth etc. 13
22.......... Compensation—constitutional safety‑net....................................... 13
Part 3—Amendments 15
23.......... Schedule(s)........................................................................................ 15
Schedule 2—Amendment of the Social Security Act 1991 16
Social Security Act 1991 16
Schedule 3—Amendment of the Veterans’ Entitlements Act 1986 17
Veterans’ Entitlements Act 1986 17
Schedule 4—Amendment of the Privacy Act 1988 18
Privacy Act 1988 18
Notes 21
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 [see Note 1]
This Act may be cited as the Hearing Services and AGHS Reform Act 1997.
2 Commencement [see Note 1]
(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 3—Transfer of certain amounts to the nominated company
17 Transfer time
(1) The Minister may, by writing, determine that a specified time is the transfer time for the purposes of this Division.
(2) The determination has effect accordingly.
18 Transfer of Trust Account balance to nominated company
(1) This section applies if the Audit Act 1901 is in force at the transfer time.
(2) As soon as practicable after the transfer time, there is payable to the nominated company, out of the Consolidated Revenue Fund, an amount equal to the balance of the Australian Government Health Service Trust Account as at the transfer time.
Note: The Australian Government Health Service Trust Account will be closed under the Audit Act 1901 and the balance transferred to the Consolidated Revenue Fund under that Act.
(3) The Consolidated Revenue Fund is appropriated accordingly.
(4) The payment under subsection (2) is to be made by way of consideration, or partial consideration, for an issue of shares by the nominated company to the Commonwealth.
19 Transfer of Reserve balance to nominated company
(1) This section applies if the Financial Management and Accountability Act 1997 is in force at the transfer time.
(2) As soon as practicable after the transfer time, there is payable to the nominated company, out of the Consolidated Revenue Fund, an amount equal to the balance of the Australian Government Health Service Reserve as at the transfer time.
Note: The Australian Government Health Service Reserve will be abolished under the Financial Management and Accountability Act 1997 and the balance transferred to the Consolidated Revenue Fund under that Act.
(3) The Consolidated Revenue Fund is appropriated accordingly.
(4) The payment under subsection (2) is to be made by way of consideration, or partial consideration, for an issue of shares by the nominated company to the Commonwealth.
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.
Part 3—Amendments
23 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 4—Amendment of the Privacy Act 1988
Privacy Act 1988
1 Subsection 6(1)
Insert:
nominated AGHS company means a company that:
(a) is the nominated company (within the meaning of Part 2 of the Hearing Services and AGHS Reform Act 1997); and
(b) is either:
(i) Commonwealth‑owned (within the meaning of that Part); or
(ii) a corporation.
2 Subsection 6(1) (at the end of paragraph (i) of the definition of agency)
Add:
; or (j) the nominated AGHS company; or
(k) an eligible hearing service provider.
3 Subsection 6(1) (paragraph (b) of the definition of eligible employment services provider)
Omit “(g) or (h)”, substitute “(g), (h) or (j)”.
4 Subsection 6(1)
Insert:
eligible hearing service provider means an entity (within the meaning of the Hearing Services Administration Act 1997):
(a) that is, or has at any time been, engaged under Part 3 of the Hearing Services Administration Act 1997 to provide hearing services; and
(b) that is not covered by paragraph (a), (b), (c), (d), (e), (f), (g), (h) or (j) of the definition of agency.
5 Subsection 6(1)
Insert:
hearing services has the same meaning as in the Hearing Services Administration Act 1997.
6 Paragraph 7(1)(a)
After “other than an eligible case manager”, insert “or an eligible hearing service provider”.
7 After paragraph 7(1)(cb)
Insert:
(cc) an act done, or a practice engaged in, as the case may be, by an eligible hearing service provider in connection with the provision of hearing services under an agreement made under Part 3 of the Hearing Services Administration Act 1997; or
8 Paragraphs 7(1)(d) and (e)
After “other than”, insert “an eligible hearing service provider or”.
9 At the end of paragraph 7(1)(eb)
Add:
or (ec) an act done, or a practice engaged in, as the case may be, by a Minister in relation to the affairs of an eligible hearing service provider, being affairs in connection with the provision of hearing services under an agreement made under Part 3 of the Hearing Services Administration Act 1997; or
(ed) an act done, or a practice engaged in, as the case may be, by a Minister in relation to a record that is in the Minister’s possession in his or her capacity as a Minister and relates to the affairs of an eligible hearing service provider, being affairs in connection with the provision of hearing services under an agreement made under Part 3 of the Hearing Services Administration Act 1997;
10 Section 37 (at the end of the table)
Add:
| 8 | The nominated AGHS company | The chief executive officer of the company |
| 9 | An eligible hearing service provider that is an individual | The individual |
| 10 | An eligible hearing service provider that is not an individual | The individual primarily responsible for the management of the eligible hearing service provider |
11 Subsections 54(2) and 57(2)
After “does not include”, insert “the nominated AGHS company, an eligible hearing service provider or”.
12 Transitional regulations
(1) The Governor‑General may make regulations in relation to transitional matters arising from the amendments made by this Schedule.
(2) The Governor‑General may make regulations modifying the application of the Privacy Act 1988 in relation to transitional matters in connection with the transfer of any of the operations or records of the Australian Government Health Service to the nominated AGHS company.
(3) Subitems (1) and (2) do not limit each other.
(4) In this item:
modifications includes additions, omissions and substitutions.