EXPLANATORY STATEMENT
Ministerial Notice under section 67AZR of the Australian National Railways Commission Act 1983 (ANRC Act)
The Ministerial Notice is given under section 67AZR of the ANRC Act, which allows the Minister, by written notice, to enter into one or more agreements on behalf of the Commonwealth, with South Australia for certain purposes.
The ANRC Act was repealed by the Australian National Railways Commission Sale Act 1997, however, the ANRC Act's operation in respect of Ministerial Notices of this kind is preserved.
The Ministerial Notice provides that the Minister will enter into the agreement that is annexed to the Ministerial Notice (Second Amending Agreement) with the State of South Australia for the purposes of, and in terms expressed in, the Second Amending Agreement.
The Second Amending Agreement amends the 1997 Commonwealth/South Australian Railways Agreement (1997 Agreement). The 1997 Agreement facilitated the sale of the Australian National Railways Commission (ANRC) and was previously amended by agreement on 21 September 1999 (First Amending Agreement). The First Amending Agreement settled a number of residual matters in relation to the repeal of the ANRC Act and the interstate rail corridor in South Australia.
The Department of Infrastructure and Transport (the Department) consulted with the Department of Finance and Deregulation (DOFD), the South Australian Department of Planning, Transport and Infrastructure (DPTI), and the affected company Genesee and Wyoming Pty Ltd (GWA) whilst preparing the Ministerial Notice and Explanatory Statement.
DOFD and DPTI were consulted to ensure that they were in agreement with the proposed variation and process required to ensure effect is given to the Ministerial Notice. As part of the process, DOFD were required to arrange a Declaration under 67AM of the ANRC Act, which Senator the Hon Penny Wong, Minister for Finance and Deregulation, signed on 7 July 2012. DPTI were consulted as, should the Notice be passed, the signed Second Amending Agreement which is attached to the Ministerial Notice (non legislative) is required to be tabled in both Houses of the Commonwealth and South Australian Parliaments within 15 sitting days of the making of the agreement.
GWA are the affected industry party in this matter. The Department kept GWA informed of progress throughout the development of the Notice and Explanatory Statement. GWA has indicated no concerns with the process or the proposed Notice.
The issue has no impact on the broader community and as such broader community consultation was not considered necessary.
Clause 11 of the 1997 Agreement allows for the amendment of the 1997 Agreement and requires any amendments to be tabled in both the Commonwealth and South Australian Parliaments.
The Ministerial Notice takes effect the day after registration.
It is necessary to amend the 1997 Agreement to clarify and resolve issues that have arisen with certain definitions in the 1997 Agreement. There is a risk that the sale or transfer of rail assets intended to be facilitated by the 1997 Agreement has not been complete. In particular, it is likely that some of these assets that were to have been transferred under the 1997 Agreement actually remained in Commonwealth ownership. The Second Amending Agreement will implement amended definitions to give effect to the original intent of the 1997 Agreement
The 1997 Agreement and the First Amending Agreement and Second Amending Agreement are annexed to the Ministerial Notice.
The Ministerial Notice is disallowable in accordance with section 67AZR(3) of the ANRC Act.
Overview
The Ministerial Notice F2012L01692 under section 67AZR of the Australian National Railways Commission Act 1983 was enacted to address issues arising from the 1997 Commonwealth/South Australian Railways Agreement, which facilitated the sale of the Australian National Railways Commission (ANRC). Although the ANRC Act was repealed by the Australian National Railways Commission Sale Act 1997, the provisions concerning Ministerial Notices were preserved. This Ministerial Notice, given by the Minister, intends to enter into an agreement with South Australia, as detailed in the annexed Second Amending Agreement, to amend the 1997 Agreement. This amendment aims to resolve certain definitional issues and ensure the complete transfer of rail assets from the Commonwealth to South Australia, as originally intended. The process involved consultations with relevant departments and the affected company, Genesee and Wyoming Pty Ltd, to ensure alignment and address any concerns regarding the proposed changes. The Ministerial Notice is subject to disallowance under section 67AZR(3) of the ANRC Act.
Scope and Application
The Ministerial Notice under section 67AZR of the Australian National Railways Commission Act 1983 is designed to facilitate an agreement between the Commonwealth and the State of South Australia. This agreement, known as the Second Amending Agreement, is intended to modify the 1997 Commonwealth/South Australian Railways Agreement, which was established to manage the sale of the Australian National Railways Commission. Despite the repeal of the ANRC Act by the Australian National Railways Commission Sale Act 1997, the Act’s provisions for Ministerial Notices remain applicable. The Ministerial Notice, signed by Senator the Hon Penny Wong, Minister for Finance and Deregulation, on 7 July 2012, amends the 1997 Agreement to address issues with certain definitions and ensure the completion of asset transfers as originally intended. The Second Amending Agreement is subject to consultation with relevant departments and the affected company, Genesee and Wyoming Pty Ltd, and must be tabled in both Houses of the Commonwealth and South Australian Parliaments within 15 sitting days of its making. The Ministerial Notice takes effect the day after its registration and is disallowable in accordance with section 67AZR(3) of the ANRC Act.
Key Provisions
The Ministerial Notice (F2012L01692) under section 67AZR of the Australian National Railways Commission Act 1983 (ANRC Act) provides that the Minister will enter into an agreement with the State of South Australia (Second Amending Agreement) to amend the 1997 Commonwealth/South Australian Railways Agreement. This is done to clarify certain definitions and resolve issues that have arisen, potentially ensuring that the sale or transfer of rail assets, as intended by the 1997 Agreement, is complete (section 67AZR). The Second Amending Agreement seeks to amend the 1997 Agreement by addressing ambiguities in the definitions, thereby ensuring the original intent of the agreement is fulfilled.
The obligations imposed by the Ministerial Notice primarily involve the Minister entering into the Second Amending Agreement with South Australia, which includes clarifying and resolving issues concerning the definitions within the 1997 Agreement. This is aimed at ensuring that any incomplete sale or transfer of rail assets is properly addressed. The Minister must also ensure that the signed Second Amending Agreement is tabled in both Houses of the Commonwealth and South Australian Parliaments within 15 sitting days of the making of the agreement (section 67AZR(2)). Additionally, the Department of Infrastructure and Transport must consult with relevant departments and affected parties, such as the Department of Finance and Deregulation and Genesee and Wyoming Pty Ltd, to facilitate the process and ensure all parties are in agreement with the proposed variations.
The Ministerial Notice and the Second Amending Agreement do not directly create new offences or impose penalties, but any failure to comply with the obligations under the Ministerial Notice could potentially lead to legal disputes or actions. Specifically, if the Minister fails to enter into the Second Amending Agreement or fails to table it in the Parliaments within the stipulated timeframe, it could result in the invalidation of the agreement and potential legal consequences. The Minister is also required to obtain a Declaration from the Minister for Finance and Deregulation, which was signed by Senator the Hon Penny Wong on 7 July 2012, to ensure the validity and effect of the Ministerial Notice (section 67AM). The Ministerial Notice itself is disallowable in accordance with section 67AZR(3) of the ANRC Act, meaning it can be disallowed by resolution of either House of the Parliament.