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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
RESEARCH
AGENCIES LEGISLATION AMENDMENT BILL 2002
(Circulated by authority of the Minister for
Science the Hon Peter McGauran, MP)
RESEARCH AGENCIES LEGISLATION AMENDMENT BILL 2002
The Australian Institute of Marine Science Act 1972 (AIMS Act)
established the Australian Institute of Marine Science (the Institute) as an
authority on marine science in Australia, in particular, tropical marine
science. The Australian Nuclear Science and Technology Organisation Act
1987 (ANSTO Act) established the Australian Nuclear Science and Technology
Organisation (the Organisation) as a provider of a broad range of technical
expertise that is needed to support Australia’s nuclear
interests.
The Research Agencies Legislation Amendment Bill 2002
(the Bill) will amend the AIMS Act to:
• allow the Institute to
engage in the development and commercialisation of both marine and non-marine
applications of marine science and technology;
• remove any doubt that
the Institute is able to produce goods;
• remove any doubt that the
functions of the Institute allow it to participate in the development of marine
technology and to sell that technology for profit;
• remove the current
constitutional heads of power limitations on the functions of the Institute by
inserting a ‘catch all’ provision to include all relevant heads of
power such as quarantine, fisheries and telecommunications
powers;
• give the Institute and its associated companies the power to
borrow money to finance their commercial activities;
• give the
Institute the ability to make and guarantee loans to its associated
companies;
• increase the Institute’s level of responsibility and
accountability consistent with the Commonwealth Authorities and Companies Act
1997 in respect of contracts and intellectual property
management;
• remove the requirement for the Director or Acting
Director, or any staff member (whether full-time, temporary or casual) to take
an oath or affirmation of allegiance before commencement of employment with the
Institute;
• remove the requirement for a staff member to have a level
of health and physical fitness that satisfies the Institute;
and
• affirm that the Institute is subject to stamp duty exemptions in
relation to its borrowings.
The Bill will also amend the ANSTO Act
to:
• allow the Organisation to engage in the development and
commercialisation of both nuclear and non-nuclear applications of nuclear
science and technology;
• clarify the Organisation’s ability to
construct and lease buildings to third parties; and
• bring s.31 of
the ANSTO Act into line with s.50 of the Science and Industry Research
Act 1949 (the CSIRO’s enabling legislation) by providing that
regulations can prescribe a higher contract value threshold than that prescribed
for in the Act before Ministerial approval is needed; and
• clarify
that the Organisation can produce and acquire goods, in addition to providing
and selling goods and providing services.
The Bill will result in increased revenue for the Institute and the
Organisation, the amounts of which are difficult to quantify at present. There
will be no impact on the Commonwealth’s appropriation funding for the
agencies.
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides for this Act
to be cited as the Research Agencies Legislation Amendment Act
2002.
Clause 2 - Commencement
Clause 2 provides for
this Act to commence on the day on which it receives the Royal
Assent.
Clause 3 - Schedule(s)
Clause 3 provides that
each Act that is specified in a Schedule is amended or repealed as set out in
the applicable Schedule.
Item 1
Inserts a definition of application and use
for the purposes of the Act in section 5. The term means marine application and
use as well as non-marine application and use. These terms are intended to be
interpreted broadly.
Items 2 and 3
Repeal paragraphs
9(1)(a) and (f) and substitute new paragraphs which have the effect of allowing
the Institute to carry out research and development and to collect and
disseminate information relating to both marine science and marine technology
and the application and use of marine science and marine
technology.
Item 4
Repeals paragraph 9(1)(g) and
substitutes a new paragraph which has the effect of clarifying that the
Institute is able to produce, acquire, provide and sell goods and to provide
services in connection with marine science and marine technology and the
application and use of marine science and marine technology. This removes any
doubt that the Institute is able to produce and sell goods.
Item
5
Amends paragraph 9(1)(h) to clarify that the Institute may make
available to persons on a commercial basis its resources and property, as well
as the Institute’s knowledge, expertise, equipment and
facilities.
Item 6
Amends subsection 9(2) to provide
that the Institute may perform its functions to the extent that they are not in
excess of the functions that may be conferred on it by virtue of any of the
legislative powers of the Parliament.
Items 7 and 8
Add
new paragraphs 9(2)(g), (h) and (i) which list additional purposes in respect of
which the Institute may perform its functions. These are for purposes in
relation to quarantine, fisheries in Australian waters beyond territorial limits
or telecommunications.
Item 9
Adds new subsection 9(3)
which provides definitions of communications and
telecommunications for the purposes of section 9 of the
Act.
Item 10
Repeals paragraph 10(2)(k) and substitutes a
new paragraph which has the effect of providing that the Institute may arrange
for displaying material and giving lectures to the public or otherwise about
marine science and marine technology and the application and use of marine
science and marine technology.
Item 11
Provides that, in
determining the functions and powers that the Institute had before commencement
of this Item, the amendments made by Part 1 of Schedule 1 are to be
disregarded.
Items 12-14
Insert new definitions of associated
company, borrowings and Finance Minister for the purposes of
the Act in section 5. Use of a credit card would be excluded from the
definition of borrowing inserted by Item 13. These amendments are not
intended to affect the existing powers of the Institute to obtain goods and
services on credit by use of a credit card.
Item
15
Inserts a new paragraph 10(2)(ha) which has the effect of
providing that in performing its functions the Institute may lend money to, and
provide guarantees for the benefit of, associated companies of the
Institute.
Item 16
Substitutes the reference to
“Minister for Finance” in subsection 36(2) with a reference to the
“Finance Minister”, which is the current description of the Minister
administering the Commonwealth Authorities and Companies Act
1997.
Item 17
Repeals paragraph 38(1)(a) and substitutes a new paragraph which has the effect of clarifying that the monies of the Institute may be applied in payment or discharge of the costs, expenses and other obligations incurred by the Institute in the performance of its functions or the exercise of its powers.
Items 18 and 19
Adds a new paragraph 38(1)(c) which
provides that the money of the Institute may be applied in making other payments
which the Institute is authorised or required to make under the Act or any other
law.
Item 20
Amends section 42 to provide that the
limit on contracts which the Institute may enter without the approval of the
Minister may involve the payment by the Institute of an amount not exceeding $1
million or, if a higher amount is specified in the regulations, that higher
amount.
Item 21
Inserts proposed sections 42A, 42B,
42C, 42D and 42E to provide for the Institute to borrow from the Commonwealth,
borrow from persons other than the Commonwealth, obtain Commonwealth guarantees
of borrowings by the Institute and that the Institute may give
security.
(NOTE: proposed section is abbreviated as ps)
ps42A
Borrowing from Commonwealth
Proposed section 42A provides that the
Finance Minister may, on behalf of the Commonwealth out of appropriations, lend
money to the Institute on such terms and conditions as the Minister determines
in writing.
ps42B Borrowing from persons other than the
Commonwealth
Proposed section 42B provides that the Institute may,
with the Finance Minister's written approval, borrow money from persons other
than the Commonwealth on terms and conditions specified in, or consistent with,
the approval. The money may be borrowed wholly or partly in foreign
currency.
ps42C Guarantee of borrowings by
Institute
Proposed subsection 42C(1) provides that the Finance
Minister may, on behalf of the Commonwealth, enter into a contract guaranteeing
the performance by the Institute of obligations incurred by it under section
42B. Under proposed subsection 42C(2), the Finance Minister may determine in
writing that obligations incurred by the Institute under section 42B are
guaranteed by the Commonwealth.
ps42D Borrowing not otherwise
permitted
Proposed section 42D provides that the Institute must not
borrow money except under section 42A or 42B.
ps42E Institute may
give security
Proposed section 42E provides that the Institute may
give security over the whole or part of its assets for the performance by the
Institute of any obligations incurred under section 42A or 42B, or the payment
to the Commonwealth of amounts equal to amounts paid by the Commonwealth under a
guarantee under section 42C.
Item 22
Inserts a new
subsection 43(2) to clarify that stamp duty or a similar tax under a law of the
Commonwealth or of a State or Territory is not payable by the Institute or any
other person in respect of a transaction done for the purposes of a borrowing by
the Institute or in respect of a document executed by or on behalf of the
Institute for the purposes of a borrowing by the Institute.
Item 23
Amends section 10A to omit reference to section 18,
which was repealed by the Audit (Transitional and Miscellaneous) Amendment
Act 1997 (No. 152 of 1997).
Item 24
Removes the
requirement for the Director or Acting Director of the Institute to take an oath
or affirmation of allegiance in accordance with the form in the Schedule, before
being allowed to perform the duties of his or her office.
Items 25
and 26
Amend subsection 33(1) and repeal subsection 33(2) to remove
the requirements for the appointment of officers of the Institute as set out
subsection 33(2). These requirements provided that, except with the approval of
the Minister, the Council could not appoint a person as an officer unless that
person was an Australian citizen, satisfied certain health and physical fitness
tests and took an oath or affirmation in the form set out in the
Schedule.
Items 27 and 28
Amend subsection 35(1) and
repeal subsection 35(3) to remove the condition that Council not employ a person
as a temporary or casual employee unless that person takes an oath or
affirmation of allegiance in accordance with the form in the
Schedule.
Item 29
Amends subsection 48(1) to remove the
requirement for Ministerial approval for the terms and conditions under which
the Institute may make available any discovery, invention or improvement of or
in any process, apparatus or machine made by an officer or employee of the
Institute in the course of his or her official duties.
Item
30
Amends section 49 to remove the requirement for Ministerial
approval for bonuses Council may pay officers, employees or persons working on
behalf of the Institute in respect of useful discoveries or inventions made by
those officers, employees or persons.
Item 31
Removes
the Schedule to the Act which set out the form of an oath or affirmation
formerly required by section 31 and subsections 33(2) and 35(3), which are
repealed by Items 24, 26 and 28.
Item 1
Inserts a definition of application and
use for the purposes of the Act in subsection 3(1). The term means nuclear
application and use as well as non-nuclear application and
use.
Item 2 and 3
Insert a new subparagraph 5(1)(a)(ia)
to include the application and use of nuclear science and nuclear technology as
a function of the Organisation.
Items 4, 6, 9 and
13
Inserts the word “and” after paragraphs 5(1)(a), (b),
(ba), (c), (d), (ea), (f), (g), (h) and (j) to emphasise that the functions of
the Organisation include all of the matters listed in subsection
5(1).
Item 5
Substitutes the word “use” for
“utilisation” in paragraph 5(1)(b) for consistency with the term
application and use inserted by Item 1.
Item
7
Amends paragraph 5(1)(c) to clarify that the Organisation’s
functions include the production, acquisition, provision and sale of goods and
the provision of services in connection with the matters listed in subparagraphs
is 5(1)(c)(i), (ia) and (ii), as well as proposed subparagraphs 5(1)(c)(ib) and
(ic) inserted by Item 8.
Item 8
Inserts new
subparagraphs 5(1)(c)(ib) and (ic) to clarify that the Organisation may produce,
acquire, provide and sell goods, and provides services in connection with
nuclear science and nuclear technology or the application and use of nuclear
science and nuclear technology.
Item 10
Repeals
paragraph 5(1)(e) and substitutes a new paragraph which has the effect of adding
the application and use of nuclear science and nuclear technology to the matters
which the Organisation may provide advice on.
Item
11
Amends paragraph 5(1)(ea) to clarify that, as part of its
functions, the Organisation may make available to other persons on a commercial
basis the knowledge, expertise, equipment, facilities, resources and property of
the Organisation by the means set out in subparagraphs 5(1)(ea)(i) to
(iv).
Item 12
Amends subparagraph 5(1)(ea)(iii) to
clarify that the Organisation may make available to other persons on a
commercial basis the knowledge, expertise, equipment, facilities, resources and
property of the Organisation by leasing land, buildings and
facilities.
Item 14
Adds a new subsection 6(3) which
has the effect of providing that, to avoid doubt, the general powers of the
Organisation include the power to construct buildings and facilities for the
sole purpose of performing the function referred to in paragraph 5(1)(ea).
Paragraph 5(1)(ea) is amended by Items 11 and 12.
Item
15
Provides that, in determining the functions and powers that the
Organisation had before commencement of this Item, the amendments made by Part 1
of Schedule 2 are to be disregarded.
Item 16
Amends section 31 to provide that the limit on
contracts which the Organisation may enter without the approval of the Minister
may involve the payment or receipt by the Organisation of an amount not
exceeding $5 million or, if a higher amount is specified in the regulations,
that higher amount.