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This is a Bill, not an Act. For current law, see the Acts databases.

NATIONAL PORTRAIT GALLERY OF AUSTRALIA (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2012

2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Portrait Gallery of Australia
(Consequential and Transitional
Provisions) Bill 2012
No. , 2012
(Regional Australia, Local Government, Arts and Sport)
A Bill for an Act to deal with consequential and
transitional matters in connection with the National
Portrait Gallery of Australia Act 2012, and for
related purposes
i National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Consequential amendments
3
Archives Act 1983
3
Schedule 2--Transitional provisions
4
Part 1--Definitions
4
Part 2--Transfer of assets and liabilities
5
Part 3--Transfer of other matters
8
Part 4--Staff
10
Part 5--Other matters
15
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 1
A Bill for an Act to deal with consequential and
1
transitional matters in connection with the National
2
Portrait Gallery of Australia Act 2012, and for
3
related purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act may be cited as the National Portrait Gallery of Australia
7
(Consequential and Transitional Provisions) Act 2012.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1
and 2
At the same time as the National Portrait
Gallery of Australia Act 2012 commences.
1 July 2013
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Schedule(s)
10
Each Act that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
concerned, and any other item in a Schedule to this Act has effect
13
according to its terms.
14
15
Consequential amendments Schedule 1
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 3
Schedule 1--Consequential amendments
1
2
Archives Act 1983
3
1 Subsection 3(1) (at the end of paragraphs (a) and (b) of the
4
definition of exempt material)
5
Add "or".
6
2 Subsection 3(1) (paragraph (c) of the definition of exempt
7
material)
8
Omit "Australian National Gallery;", substitute "National Gallery of
9
Australia; or".
10
3 Subsection 3(1) (after paragraph (c) of the definition of
11
exempt material)
12
Insert:
13
(ca) material included in the national collection maintained by the
14
National Portrait Gallery of Australia; or
15
4 Subsection 3(1) (paragraph (d) of the definition of exempt
16
material)
17
Omit "Museum of Australia", substitute "National Museum of
18
Australia".
19
20
Schedule 2 Transitional provisions
Part 1 Definitions
4 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
Schedule 2--Transitional provisions
1
Part 1--Definitions
2
1 Definitions
3
In this Schedule:
4
asset means:
5
(a) any legal or equitable estate or interest in real or personal
6
property, whether actual, contingent or prospective; and
7
(b) any right, power, privilege or immunity, whether actual,
8
contingent or prospective.
9
assets official, in relation to an asset, means the person or authority
10
who, under a law of the Commonwealth, a State or a Territory, or under
11
a trust instrument or otherwise, has responsibility for keeping a register
12
in relation to assets of the kind concerned.
13
liability means any liability, duty or obligation, whether actual,
14
contingent or prospective.
15
National Portrait Gallery program means the program:
16
(a) that was administered by the Commonwealth immediately
17
before the transition time; and
18
(b) that was generally known as the National Portrait Gallery.
19
transition time means the commencement of this Schedule.
20
21
Transitional provisions Schedule 2
Transfer of assets and liabilities Part 2
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 5
Part 2--Transfer of assets and liabilities
1
2 Transfer of assets from Commonwealth to National Portrait
2
Gallery of Australia
3
(1)
This item applies to the assets of the Commonwealth immediately
4
before the transition time that are for the purposes of the National
5
Portrait Gallery program.
6
(2)
Subitem (1) does not apply to land or buildings, but does apply to
7
structures or other improvements on land.
8
(3)
At the transition time, the assets to which this item applies cease to be
9
assets of the Commonwealth and become assets of the National Portrait
10
Gallery of Australia without any conveyance, transfer or assignment.
11
The Gallery becomes the successor in law in relation to the assets.
12
Assets subject to trust
13
(4)
If an asset vests in the National Portrait Gallery of Australia under this
14
item and the asset was, immediately before the transition time, held by
15
the Commonwealth on trust, that asset is taken, at and after that time, to
16
be held by the Gallery on trust and subject to the terms of the trust on
17
which the asset was so held by the Commonwealth.
18
Exception
19
(5)
The Minister may, by writing, determine that subitem (1) does not apply
20
in relation to a specified asset (including structures or other
21
improvements on land).
22
Note:
For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
23
(6)
A determination made under subitem (5) is not a legislative instrument.
24
3 Transfer of liabilities from Commonwealth to National
25
Portrait Gallery of Australia
26
(1)
This item applies to the liabilities of the Commonwealth immediately
27
before the transition time that are for the purposes of the National
28
Portrait Gallery program.
29
(2)
At the transition time, the liabilities cease to be liabilities of the
30
Commonwealth and become liabilities of the National Portrait Gallery
31
Schedule 2 Transitional provisions
Part 2 Transfer of assets and liabilities
6 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
of Australia without any conveyance, transfer or assignment. The
1
Gallery becomes the successor in law in relation to the liabilities.
2
(3)
The Minister may, by writing, determine that subitem (1) does not apply
3
in relation to a specified liability.
4
Note:
For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
5
(4)
A determination made under subitem (3) is not a legislative instrument.
6
4 Other transfers of assets and liabilities
7
(1)
This item applies in relation to assets and liabilities of the
8
Commonwealth that relate to the National Portrait Gallery program,
9
other than:
10
(a) assets or liabilities to which item 2 or 3 applies; or
11
(b) land or buildings.
12
(2)
The Minister may, in writing, make a declaration that:
13
(a) a specified asset or liability vests in the National Portrait
14
Gallery of Australia at a specified time (that is at or after the
15
transition time) without any conveyance, transfer or
16
assignment; and
17
(b) the National Portrait Gallery of Australia becomes the
18
successor in law in relation to that asset or liability at that
19
specified time.
20
Note:
For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
21
(3)
A declaration under subitem (2) has effect accordingly.
22
(4)
A declaration under subitem (2) is not a legislative instrument.
23
Assets subject to trust
24
(5)
If, at a particular time, an asset vests in the National Portrait Gallery of
25
Australia under a declaration under subitem (2) and the asset was,
26
immediately before that time, held by the Commonwealth on trust, that
27
asset is taken, at and after that time, to be held by the Gallery on trust
28
and subject to the terms of the trust on which the asset was so held by
29
the Commonwealth.
30
5 Certificates relating to vesting of assets
31
(1)
This item applies if:
32
Transitional provisions Schedule 2
Transfer of assets and liabilities Part 2
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 7
(a) any asset vests in the National Portrait Gallery of Australia
1
under this Part; and
2
(b) there is lodged with an assets official a certificate that:
3
(i) is signed by the Minister; and
4
(ii) identifies the asset; and
5
(iii) states that the asset has become vested in the National
6
Portrait Gallery of Australia under this Part.
7
(2)
The assets official may:
8
(a) deal with, and give effect to, the certificate as if it were a
9
proper and appropriate instrument for transactions in relation
10
to assets of that kind; and
11
(b) make such entries in the register as are necessary having
12
regard to the effect of this Part.
13
(3)
A certificate under paragraph (1)(b) is not a legislative instrument.
14
15
Schedule 2 Transitional provisions
Part 3 Transfer of other matters
8 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
Part 3--Transfer of other matters
1
6 Legal proceedings of the Commonwealth
2
(1)
This item applies if:
3
(a) any proceedings to which the Commonwealth was a party
4
were pending in any court or tribunal immediately before the
5
transition time; and
6
(b)
the
proceedings:
7
(i) relate to an asset or liability that, as a result of the
8
operation of item 2, 3 or 4, becomes an asset or liability
9
of the National Portrait Gallery of Australia; or
10
(ii) otherwise relate to the National Portrait Gallery
11
program.
12
(2)
The National Portrait Gallery of Australia is substituted for the
13
Commonwealth, from the transition time, as a party to the proceedings.
14
7 References in certain instruments to the Commonwealth
15
(1)
This item applies if:
16
(a) an instrument was in force immediately before the transition
17
time; and
18
(b) the instrument contains a reference to the Commonwealth
19
and the reference:
20
(i) relates to an asset or liability that, as a result of the
21
operation of item 2, 3 or 4, becomes an asset or liability
22
of the National Portrait Gallery of Australia; or
23
(ii) otherwise relates to the National Portrait Gallery
24
program.
25
(2)
The instrument has effect, from the transition time, as if the reference to
26
the Commonwealth were a reference to the National Portrait Gallery of
27
Australia.
28
(3)
The Minister may, by writing, determine that subitem (1) does not apply
29
in relation to a specified reference.
30
Note:
For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
31
(4)
A determination made under subitem (3) is not a legislative instrument.
32
(5)
In this item:
33
Transitional provisions Schedule 2
Transfer of other matters Part 3
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 9
enterprise agreement has the same meaning as in the Fair Work Act
1
2009.
2
instrument includes a contract or agreement, but does not include a
3
contract of employment or an enterprise agreement.
4
5
Schedule 2 Transitional provisions
Part 4 Staff
10 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
Part 4--Staff
1
8 Transitional--employees of the National Portrait Gallery of
2
Australia
3
Transferring employees
4
(1)
For the purposes of this item, a person is a transferring employee if:
5
(a) the person was an APS employee in the Department
6
immediately before the transition time; and
7
(b) the person is covered by a determination that:
8
(i) is made under section 72 of the Public Service Act 1999;
9
and
10
(ii) causes the person, at the transition time, to become an
11
APS employee in the National Portrait Gallery of
12
Australia.
13
(2) If:
14
(a) a person is a transferring employee; and
15
(b) immediately before the transition time, the designated
16
agreement applied to the person's employment in the
17
Department;
18
then:
19
(c) the designated agreement (as in force immediately before the
20
transition time) covers the Commonwealth and the
21
transferring employee in relation to the transferring
22
employee's employment in the National Portrait Gallery of
23
Australia; and
24
(d) the designated agreement has effect after the transition time,
25
in relation to the transferring employee's employment in the
26
National Portrait Gallery of Australia, as if it had been made
27
by the Director of the Gallery on behalf of the
28
Commonwealth; and
29
(e)
if:
30
(i) an enterprise agreement commences after the transition
31
time; and
32
(ii) the enterprise agreement was made by the Director of
33
the National Portrait Gallery of Australia on behalf of
34
the Commonwealth; and
35
Transitional provisions Schedule 2
Staff Part 4
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 11
(iii) the enterprise agreement covers the Commonwealth and
1
the transferring employee in relation to the transferring
2
employee's employment in the National Portrait Gallery
3
of Australia;
4
paragraphs (c) and (d) cease to apply in relation to the
5
transferring employee when the enterprise agreement
6
commences.
7
(3) If:
8
(a) a person is a transferring employee; and
9
(b) immediately before the transition time, a determination under
10
subsection 24(1) of the Public Service Act 1999 applied to
11
the person's employment in the Department;
12
then:
13
(c) the determination (to the extent to which it relates to the
14
transferring employee) has effect after the transition time, in
15
relation to the transferring employee's employment in the
16
National Portrait Gallery of Australia, as if:
17
(i) the determination had been made by the Director of the
18
National Portrait Gallery of Australia; and
19
(ii) the determination were applicable to the person's
20
employment in the National Portrait Gallery of
21
Australia; and
22
(d) paragraph (c) does not prevent the variation or revocation of
23
the determination.
24
New employees
25
(4)
For the purposes of this item, a person is a new employee if:
26
(a) the person is an APS employee in the National Portrait
27
Gallery of Australia; and
28
(b) the person is not a transferring employee.
29
(5) If:
30
(a) the designated agreement covers the Commonwealth because
31
of subitem (2); and
32
(b) after the transition time, a person becomes a new employee;
33
and
34
(c) the designated agreement would have covered the
35
Commonwealth and the new employee in relation to the new
36
Schedule 2 Transitional provisions
Part 4 Staff
12 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
employee's employment in the Department if the new
1
employee had been an APS employee at the same level in the
2
Department immediately before the transition time; and
3
(d) the Director of the National Portrait Gallery of Australia, by
4
written notice given to the new employee before or within 14
5
days after the person becomes a new employee, determines
6
that the designated agreement is applicable to the new
7
employee for the purposes of this subitem from the time
8
when the person becomes a new employee;
9
then:
10
(e) the designated agreement (as in force immediately before the
11
transition time) covers the Commonwealth and the new
12
employee in relation to the new employee's employment in
13
the National Portrait Gallery of Australia; and
14
(f) the designated agreement has effect after the transition time,
15
in relation to the new employee's employment in the
16
National Portrait Gallery of Australia, as if it had been made
17
by the Director of the Gallery on behalf of the
18
Commonwealth; and
19
(g)
if:
20
(i) an enterprise agreement commences after the transition
21
time; and
22
(ii) the enterprise agreement was made by the Director of
23
the National Portrait Gallery of Australia on behalf of
24
the Commonwealth; and
25
(iii) the enterprise agreement covers the Commonwealth and
26
the new employee in relation to the new employee's
27
employment in the National Portrait Gallery of
28
Australia;
29
paragraphs (e) and (f) cease to apply in relation to the new
30
employee when the enterprise agreement commences.
31
Delegation
32
(6)
The Director of the National Portrait Gallery of Australia may, in
33
writing, delegate the power conferred by paragraph (5)(d) to:
34
(a) a person who is:
35
(i) a member of the staff of the Gallery; and
36
(ii) an SES employee or acting SES employee; or
37
(b) a person who is:
38
Transitional provisions Schedule 2
Staff Part 4
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 13
(i) a member of the staff of the Gallery; and
1
(ii) an APS employee who holds or performs the duties of
2
an Executive Level 2 position or an equivalent position.
3
Note: The
expressions
SES employee and acting SES employee are defined in section 2B of
4
the Acts Interpretation Act 1901.
5
Determination is not a legislative instrument
6
(7)
A determination made under paragraph (5)(d) is not a legislative
7
instrument.
8
Definitions
9
(8)
In this item:
10
commence, in relation to an enterprise agreement, means begin to
11
operate.
12
covers has the same meaning as in the Fair Work Act 2009.
13
designated agreement means the agreement known as The Department
14
of Regional Australia, Regional Development and Local Government
15
enterprise agreement 2011.
16
enterprise agreement has the same meaning as in the Fair Work Act
17
2009.
18
9 Transitional--regulations relating to the transfer of APS
19
employees to the National Portrait Gallery of Australia
20
The Governor-General may make regulations providing for matters of a
21
transitional nature in relation to the transfer of APS employees from the
22
Department to the National Portrait Gallery of Australia.
23
10 Separate agreements relating to employment
24
(1)
If, under either or both of subitems 8(2) and (5), the designated
25
agreement covers the Commonwealth and one or more employees in
26
relation to their employment in the National Portrait Gallery of
27
Australia, the Fair Work Act 2009 and the Fair Work (Transitional
28
Provisions and Consequential Amendments) Act 2009 have effect as if
29
the following were separate agreements:
30
(a) the designated agreement, so far as it has the coverage
31
mentioned in this item;
32
(b) the designated agreement, so far as it does not have the
33
coverage mentioned in this item.
34
Schedule 2 Transitional provisions
Part 4 Staff
14 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
Definitions
1
(2)
In this item:
2
covers has the same meaning as in the Fair Work Act 2009.
3
designated agreement means the agreement known as The Department
4
of Regional Australia, Regional Development and Local Government
5
enterprise agreement 2011.
6
7
Transitional provisions Schedule 2
Other matters Part 5
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 15
Part 5--Other matters
1
11 Exemption from stamp duty and other State or Territory
2
taxes
3
(1)
No stamp duty or other tax is payable under a law of a State or a
4
Territory in respect of an exempt matter, or anything connected with an
5
exempt matter.
6
(2) An
exempt matter is:
7
(a) the vesting of an asset or liability under this Schedule; or
8
(b) the operation of this Schedule in any other respect.
9
(3)
The Minister may certify in writing:
10
(a) that a specified matter is an exempt matter; or
11
(b) that a specified thing was connected with a specified exempt
12
matter.
13
(4)
A certificate under subitem (3) is not a legislative instrument.
14
12 National Portrait Gallery Special Account
15
(1)
At the transition time, the Special Account established under subsection
16
20(1) of the Financial Management and Accountability Act 1997 with
17
the name "National Portrait Gallery Special Account" is abolished.
18
(2)
If an amount (the old amount) stands to the credit of that Special
19
Account immediately before the transition time, there is payable to the
20
National Portrait Gallery of Australia, at the transition time, an amount
21
equal to the old amount.
22
(3)
The amount payable to the National Portrait Gallery of Australia under
23
subitem (2) is to be paid out of the Consolidated Revenue Fund, which
24
is appropriated accordingly.
25
13 Constitutional safety net
26
(1)
If the operation of this Schedule would result in an acquisition of
27
property from a person otherwise than on just terms, the
28
Commonwealth is liable to pay a reasonable amount of compensation to
29
the person.
30
Schedule 2 Transitional provisions
Part 5 Other matters
16 National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill
2012 No. , 2012
(2)
If the Commonwealth and the person do not agree on the amount of the
1
compensation, the person may institute proceedings in a court of
2
competent jurisdiction for the recovery from the Commonwealth of
3
such reasonable amount of compensation as the court determines.
4
(3)
In this item:
5
acquisition of property has the same meaning as in paragraph 51(xxxi)
6
of the Constitution.
7
just terms has the same meaning as in paragraph 51(xxxi) of the
8
Constitution.
9
14 Certificates taken to be authentic
10
A document that appears to be a certificate made or issued under a
11
particular provision of this Schedule:
12
(a) is taken to be such a certificate; and
13
(b) is taken to have been properly given;
14
unless the contrary is established.
15
15 Acting Director
16
If:
17
(a) at the transition time, the Minister has not appointed a person
18
as the Director of the National Portrait Gallery of Australia;
19
and
20
(b) at the transition time, the Minister has not appointed at least 3
21
members of the Board of the National Portrait Gallery of
22
Australia;
23
then, until the Minister has appointed at least 3 members of that Board,
24
the reference in subsection 33(1) of the National Portrait Gallery of
25
Australia Act 2012 to the Board is taken to be a reference to the
26
Minister.
27
16 Delegation by Minister
28
(1)
The Minister may, by writing, delegate all or any of his or her powers
29
under this Schedule to:
30
(a) the Secretary of the Department; or
31
(b) an SES employee, or acting SES employee, in the
32
Department.
33
Transitional provisions Schedule 2
Other matters Part 5
National Portrait Gallery of Australia (Consequential and Transitional Provisions) Bill 2012
No. , 2012 17
Note: The
expressions
SES employee and acting SES employee are defined in section 2B of
1
the Acts Interpretation Act 1901.
2
(2)
In exercising powers under a delegation, the delegate must comply with
3
any directions of the Minister.
4
17 Regulations
5
The Governor-General may make regulations prescribing matters of a
6
transitional nature (including prescribing any saving or application
7
provisions) relating to the enactment of this Act or the National Portrait
8
Gallery of Australia Act 2012.
9

 

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