Hearing Services and AGHS Reform Act 1997

Act No. 82 of 1997 as amended

This compilation was prepared on 21 December 2010
taking into account amendments up to Act No. 148 of 2010

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  

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 4—Exemption of nominated company from State and Territory taxes             10

20.......... Exemption of nominated company from State and Territory taxes.... 10

Division 5—Miscellaneous                                                                                       11

21.......... Nominated company not to be an agency of the Commonwealth etc. 11

22.......... Compensation—constitutional safety‑net.......................................... 11

Part 3—Amendments                                                                                                        13

23.......... Schedule(s)....................................................................................... 13

Schedule 2—Amendment of the Social Security Act 1991                          14

Social Security Act 1991                                                                                          14

Schedule 3—Amendment of the Veterans’ Entitlements Act 1986       15

Veterans’ Entitlements Act 1986                                                                            15

Schedule 4—Amendment of the Privacy Act 1988                                          16

Privacy Act 1988                                                                                                       16

Notes                                                                                                                                             19

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:

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.

 

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 2—Amendment of the Social Security Act 1991

Social Security Act 1991

1  Section 1061ZB (note 2)

Omit “and hearing aid concessions under the Hearing Services Act 1991”.

Schedule 3—Amendment of the Veterans’ Entitlements Act 1986

Veterans’ Entitlements Act 1986

1  Section 118W (note 2)

Omit “and hearing aid concessions under the Hearing Services Act 1991”.

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.

Notes to the Hearing Services and AGHS Reform Act 1997

Note 1

The Hearing Services and AGHS Reform Act 1997 as shown in this compilation comprises Act No. 82, 1997 amended as indicated in the Tables below.

For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.

For all other relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act	Number and year	Date of Assent	Date of commencement	Application, saving or 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 [see Note 1]
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	—

(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

Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted
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
Schedule 1..........................	rep. No. 111, 2009
Schedule 4
Schedule 4 (item 6)............	rs. No. 100, 2005; No. 9, 2006

Table A

Application, saving or transitional provisions

Statute Stocktake (Regulatory and Other Laws) Act 2009 (No. 111, 2009)

Schedule 1

16  Repeal does not affect amendments

The repeal of:

                     (a)  subsection 2(2) of the Hearing Services and AGHS Reform Act 1997 made by item 14 of this Part; and

                     (b)  Schedule 1 to the Hearing Services and AGHS Reform Act 1997 made by item 15 of this Part;

does not affect the amendments made by Schedule 1 to the Hearing Services and AGHS Reform Act 1997.