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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Industry, Science and Resources,
Senator the
Honourable Nick Minchin)
ISBN: 0642 439141
This Bill provides for the repeal of the (Commonwealth) Coal Industry
Act 1946 and the dissolution of the Joint Coal Board as constituted under
that Act and the (New South Wales) Coal Industry Act 1946. The Bill
supports New South Wales in making a law to provide for the transfer of all the
assets, rights, liabilities of the Joint Coal Board, the transfer of members of
the staff of the Joint Coal Board and other matters incidental to the
dissolution of the Joint Coal Board.
It has been a long-standing policy
commitment of this Government to place the New South Wales coal industry on an
equal footing with all other States who administer their coal industries without
this level of Commonwealth Government oversight or involvement.
In
accordance with this policy, the New South Wales Government will be given sole
responsibility for establishing a new corporation or entity to manage functions
previously undertaken by the Joint Coal Board that it considers, in consultation
with parties associated with the New South Wales coal industry, need to be
maintained.
The transfer of all the assets, rights, liabilities and
staff to a new corporation or entity established under New South Wales
legislation will ensure there will be no financial barriers to New South Wales
in continuing to maintain these functions.
Financial impact
statement
The Joint Coal Board has been self-funding since
1992/93. Very small Commonwealth administrative savings will result from
Commonwealth withdrawal from the Joint Coal Board due to the non-continuation of
some administrative activities arising from the Coal Industry Act 1946
such as ministerial approval of annual operating plans and annual reports, and
ministerial appointment of board members.
1. Clause 1 is a formal provision specifying the short title of the
Bill.
2. Clause 2 provides for the Bill to commence on a day or days to be
fixed by Proclamation. The commencement provision will need to mirror New South
Wales’ legislation dealing with the dissolution of the Joint Coal Board.
In effect, the date of proclamation will be coordinated between the Commonwealth
and New South Wales to ensure that the new arrangements are in place and ready
to take over once the Joint Coal Board is dissolved.
Clause 3:
Schedule(s)
3. Clause 3 provides that each Act that is specified in a
Schedule to this Act is amended or repealed as set out in the Schedule.
Item 1 provides for the repeal of the whole of the Coal Industry Act
1946.
Clause 4: Dissolution of Joint Coal Board
etc.
4. There are three parts to Clause 4:
Subclause 4(1)
provides for the Joint Coal Board being dissolved under the Coal Industry Act
1946.
Subclause 4(2) provides that it is the Parliament’s
intention that New South Wales legislation make provision for:
(a) the
transfer of all the assets, rights and liabilities of the Joint Coal Board to a
new New South Wales corporation or entity to ensure that:
. all the assets,
tangible or intangible, of the Joint Coal Board are transferred to a new New
South Wales corporation or entity that will administer the functions that were
carried out by the Joint Coal Board;
. the New South Wales Parliament is not
restricted in making any provisions relating to the transfer of the rights of
the Joint Coal Board;
. the Commonwealth is indemnified against all possible
current and future claims against the Joint Coal Board and any corporation or
entity established by New South Wales legislation to take over its former
functions; and
(b) the transfer of all the Joint Coal Board staff to a
new New South Wales corporation or entity prior to dissolution of the Joint Coal
Board; and
(c) any other matters to facilitate the dissolution of the
Joint Coal Board.
Subclause 4(3) defines terms used in subclause
4(2):
• assets means any legal or equitable estate or
interest (whether present or future and whether vested or contingent) in real or
personal property of any description (including money), and includes securities,
choses in action and documents.
• Joint Coal Board
means the body corporate constituted under:
(a) the Coal Industry Act
1946; and
(b) the Coal Industry Act 1946 of New South Wales.
• liabilities means all liabilities, debts and
obligations (whether present or future and whether vested or
contingent).
• rights means all rights, powers,
privileges and immunities (whether present or future and whether vested or
contingent).
5. There are two parts to Clause 5:
Subclause 5(1) provides
clarification on the treatment of records of the Joint Coal Board by noting that
there is no intention within this Bill to override the provisions of the
Archives Act 1983. The records of the Joint Coal Board can be considered
Commonwealth records under the Archives Act 1983 and their transfer will
also need to be dealt with in accordance with the Archives Act 1983.
Subclause 5(2) provides that this Bill does empower NSW to make a law
under subclause 4(2) of this Bill to transfer Commonwealth records of the JCB.
It also provides that records can only be transferred where National Archives of
Australia provides permission under the paragraph 24(2)(b) of Archives Act
1983.
In effect, Clause 5 allows for the records of the Joint Coal
Board that are of national archival interest to be managed by National Archives
of Australia and for administrative arrangements to be developed under the
Archives Act 1983 for the transfer of other records to
NSW.
Clause 6: Workers’ compensation schemes
6. There
are two parts to Clause 6:
Subclause 6(1) provides that any
workers’ compensation scheme established by the Joint Coal Board and in
operation under section 26 of the Coal Industry Act 1946 immediately
before the repeal of that Act is taken to have been established by a new
corporation or entity under New South Wales legislation to replace the Joint
Coal Board.
Subclause 6(2) provides that this Clause does not limit the
powers of Clause 4.
Clause 7: Compensation for acquisition of
property
7. There are three parts to Clause 7:
Subclause 7(1)
provides that, if apart from Clause 7, the operation of the Act proposed by this
Bill results in an acquisition of property from a person not on just terms then
this acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution. If the acquisition is invalid, the Commonwealth is liable to pay
the person a reasonable amount of compensation in respect of that
acquisition.
Subclause 7(2) provides that if the Commonwealth and the
person referred to in subclause 7(1) do not agree on the amount of compensation,
that person may seek a remedy from the Federal Court of Australia for recovery
of compensation.
Subclause 7(3) defines terms used in subclause
7(1):
• 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.