Australian Shipping Commission Amendment Act 1977

Legislation au C2004A01791 Not in force Act

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AUSTRALIAN SHIPPING COMMISSION AMENDMENT ACT 1977

No. 153 of 1977

An Act to amend the Australian Shipping Commission Act 1956.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Australian Shipping Commission Amendment Act 1977.

 

(2) The Australian Shipping Commission Act 1956 is in this Act referred to as the Principal Act.

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Interpretation

3. Section 5 of the Principal Act is amended—

(a) by omitting the definition of “approved bank” and substituting the following definition:

“‘approved bank’ means a trading bank as defined by sub-section (1) of section 5 of the Banking Act 1959 or another bank approved by the Treasurer for the purposes of the provision in which the expression occurs; and

(b) by omitting the definition of “Commission” and substituting the following definition:

“‘Commission’ means the Australian Shipping Commission;”.

Constitution of Commission

4. Section 8 of the Principal Act is amended by inserting after sub-section (1) the following sub-section:

 

“(1a) A person may be, at the same time, a Commissioner (other than the Chairman) and the General Manager of the Commission.”.

Period of appointment

5. Section 8a of the Principal Act is amended by omitting sub-section (1) and substituting the following sub-section:

 

“(1) Subject to this section, a Commissioner shall be appointed for such period, not exceeding 5 years, as is specified in his instrument of appointment, but is eligible for re-appointment.”.

Powers of Commission

6. Section 16 of the Principal Act is amended by omitting from sub-section (3) “$100,000” (wherever occurring) and substituting “$500,000”.

 

 

7. After section 16 of the Principal Act the following section is inserted:

Functions of Commission conferred by State Acts

“16a. (1) It is the intention of the Parliament that, subject to sub-section (2), the Commission may have and perform, in addition to functions and powers under this Act, functions and powers conferred on it specifically by a State Act, being functions and powers relating to the provision of—

(a) shipping services for the carriage of goods between places in that State; or

(b) shipping services of the kind mentioned in paragraph (a) and services for the carriage of goods by land to the extent that such carriage is incident to the carriage of goods by sea in pursuance of shipping services of that kind.

 

 

“(2) The regulations may provide that sub-section (1) does not extend to all or any of the functions and powers expressed to be conferred on the Commission by a State Act.”.


Provision of shipping services in the public interest

8. Section 17 of the Principal Act is amended by adding at the end thereof the following sub-section:

 

“(6) Where the Minister gives a direction to the Commission under sub-section (1) in relation to a shipping service for the purpose of meeting the requirements of a particular area, he shall, as soon as practicable after the direction is given, cause an inquiry, in such form as he thinks appropriate, to be held into the following matters:

(a) whether those requirements could be met by the provision of a shipping or other transport service by a person or persons other than the Commission; and

(b) if those requirements could be so met—

(i) whether the Commonwealth would be required to provide financial or other assistance in connexion with the provision of the service by the other person or other persons; and

(ii) if the Commonwealth would be so required to provide assistance—the nature, and the cost to the Commonwealth, of that assistance.”.

 

 

9. After section 17 of the Principal Act the following section is inserted:

Financial policy

“17a. (1) The Minister—

(a) shall, before the commencement of each financial year, determine the percentage of the capital of the Commission that would represent a reasonable return to the Commonwealth from the establishment, maintenance and operation by the Commission of coastal shipping services in that financial year, and shall give notice in writing to the Commission of the percentage so determined; and

(b) may, at any time during a financial year, by reason of a change in circumstances, by notice in writing to the Commission, amend a determination made under paragraph (a).

 

“(2) In making a determination under sub-section (1), the Minister shall take into account, in addition to other relevant matters—

(a) the profits, in relation to capital employed, that have been, and are expected to be, made by privately-owned shipping undertakings in Australia, being shipping undertakings that employ an amount of capital in coastal shipping services that is similar to the amount employed by the Commission in such services;

(b) all matters tending to create disparity with respect to costs between the Commission and privately-owned shipping undertakings; and

(c) the obligations of the Commission under section 17.

 

“(3) Subject to its obligations under section 17, the Commission shall pursue a policy directed towards making, in each financial year, profits sufficient to enable the Commission to pay to the Commonwealth, out of those profits, an amount equal to the percentage of the capital of the Commission determined under sub-section (1) in respect of that financial year.

 

“(4) The Commission shall prepare estimates, in such form as the Minister directs, of its receipts and expenditure for each financial year and, if so directed by the Minister, for any other period, and shall submit those estimates to the Minister not later than such date as the Minister directs.

 

“(5) The Commission shall, from time to time as provided in sub-section (6), review the financial results of its operations during the current financial year and if, upon any such review, the Commission finds that—

(a) the receipts and expenditure of the Commission during the preceding part of the financial year have not been as favourable to the profitable conduct of the business of the Commission as the receipts and expenditure specified in the estimates submitted to the Minister; and


(b) having regard to that fact, it appears likely that, unless special measures are taken, the Commission will not make sufficient profits in that year to enable it to pay to the Commonwealth, out of those profits, an amount equal to the percentage of the capital of the Commission determined, in respect of that year, under sub-section (1),

the Commission shall forthwith consider what specific measures can be taken for the purpose of enabling it to carry out more effectively, during the remainder of that financial year, its duty under sub-section (3) and shall inform the Minister of the measures it proposes to adopt for that purpose and the effect that it considers the adoption of those measures will have on the financial results of its operations.

 

“(6) A review under sub-section (5) shall be made whenever the Commission considers that circumstances so require or the Minister so directs, but so that not more than 6 months will elapse in a financial year between—

(a) the beginning of that financial year and the first review under that sub-section in that financial year; or

(b) the commencement of a review under that sub-section and the commencement of the next such review.

 

“(7) In this section—

‘capital of the Commission’, in relation to a determination under sub-section (1), means that part of the capital of the Commission that, in the opinion of the Minister, will be employed by the Commission in the establishment, maintenance or operation of coastal shipping services during the financial year to which that determination relates;

‘coastal shipping services’ means shipping services other than shipping services—

(a) between a place in Australia and a place in another country; or

(b) between a place in a Territory and a place in another country.”.

Duties of Commission

10. Section 18 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:

“(1) Subject to its obligations under section 17, the Commission shall, in the establishment, maintenance and operation of its overseas shipping services, pursue a policy directed towards securing revenue from those services sufficient to meet all its expenditure and provision for expenditure properly chargeable to that revenue, and to permit the payment to the Commonwealth of a reasonable return on that part of the capital of the Commission that is employed in the establishment, maintenance and operation of overseas shipping services.”; and

(b) by omitting from sub-section (2) “the last preceding sub-section” and substituting “sub-section (1) of this section and sub-section (3) of section 17a”.

11. Section 19 of the Principal Act is repealed and the following section substituted:

The Minister to be notified of rates of charges

“19. (1) Subject to this section and to sub-section (2) of section 18, the Commission may make charges for any service provided by the Commission at such rates as it thinks fit.

 

“(2) Where the Commission proposes—

(a) to fix a rate of charge for a service for which a rate of charge is not presently fixed; or

(b) to vary any of the rates of charges made by the Commission, the Commission shall give notice in writing to the Minister setting out the proposed rate of charge or the proposed variation and the basis of the proposed rate of charge or the reason for the proposed variation.

 

“(3) The Minister may, within 60 days after the receipt by him of a notice under sub-section (2), give notice in writing to the Commission approving or disapproving the proposed rate of charge or the proposed variation, as the case may be.

 

“(4) In exercising his powers under sub-section (3), the Minister shall have regard to the duties of the Commission under sub-sections (1) and (2) of section 18 and to the provisions of any agreement or arrangement referred to in sub-section (3) of that section.

 

“(5) The Commission shall not fix a rate of charge for a service for which a rate of charge is not presently fixed unless—

(a) the Minister has approved the rate of charge; or

(b) the Commission has given the Minister notice in writing under sub-section (2) in relation to the rate of charge and the Minister has not, within 60 days after receipt of the notice, given to the Commission a notice under sub-section (3) in relation to the rate of charge.

 

“(6) The Commission shall not vary a rate of charge for any service provided by the Commission unless—

(a) the Minister has approved the variation; or

(b) the Commission has given to the Minister notice in writing under sub-section (2) in relation to the variation and the Minister has not, within 60 days after receipt of the notice, given to the Commission a notice under sub-section (3) in relation to the variation.”.

Superannuation

12. Section 24a of the Principal Act is repealed.

Capital of the Commission

13. Section 28 of the Principal Act is amended by omitting from paragraph (b) “purposes of the Commission” and substituting “purpose of providing further capital for the Commission”.

Payments to Commonwealth by Commission

14. Section 29 of the Principal Act is amended by omitting “, with the concurrence of the Treasurer,” from sub-sections (1) and (2).

Borrowing by Commission

15. Section 30 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:

“(1) The Commission may, with the approval of the Treasurer, borrow moneys that are from time to time necessary for the performance of its functions or duties, or the exercise of its powers, under this Act.”;

(b) by omitting from sub-section (2) “he determines” and substituting “are determined by him in accordance with sub-section (3)”; and

(c) by inserting after sub-section (2) the following sub-section:

“(3) The rate of interest and the other terms and conditions of a loan referred to in sub-section (2) shall be a rate of interest that is, and other terms and conditions that are, determined by the Treasurer to be equivalent to the rate of interest and the other terms and conditions that would be applicable to a loan made by a bank or other financial institution to a privately-owned shipping undertaking in Australia, being a shipping undertaking that provides shipping services comparable with those provided by the Commission.”.

Application of moneys

16. Section 32 of the Principal Act is amended by omitting “fixed” from paragraph (a) of sub-section (2).

Profits of Commission

17. Section 33 of the Principal Act is amended by omitting “, with the concurrence of the Treasurer,” from sub-section (3).

18. Section 36 of the Principal Act is repealed and the following section substituted:

Liability of Commission to taxation

“36. (1) The Commission is subject to taxation under the laws of the Commonwealth, the States and the Territories.

“(2) The Commission is not a public authority for the purposes of paragraph (d) of section 23 of the Income Tax Assessment Act 1936.

“(3) The Commission is not a public transport authority for the purposes of item 77 in the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935.”.


Annual report of Commission

19. Section 39 of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section:

 

“(4) The Minister shall cause a copy of the report and financial statements of the Commission, together with a copy of the report of the Auditor-General, to be laid before each House of the Parliament within 15 sitting days of that House after their receipt by the Minister.

Schedule

20. The Schedule to the Principal Act is amended by omitting “Trade Practices Act 1965-1967.”.

Formal amendments

21. The Principal Act is amended as set out in the Schedule.

SCHEDULE     Section 21

FORMAL AMENDMENTS

The following provisions of the Principal Act are amended by omitting “Australia” (wherever occurring) and substituting “the Commonwealth”:

Sub-section 17(4), section 28, sub-sections 29(1) and (2) and 30(2) and (5), paragraph 32(1)(c) and section 47.

 

Overview

The Australian Shipping Commission Amendment Act 1977 is a legislative act enacted by the Commonwealth Parliament to amend the Australian Shipping Commission Act 1956. This Act was introduced to address the need for updating and refining the regulatory framework governing the operations and functions of the Australian Shipping Commission. The policy objective of this amendment is to enhance the efficiency and financial accountability of the Commission, while ensuring it can effectively perform its shipping-related duties. This Act provides for various amendments, including changes to definitions, the constitution of the Commission, the powers and functions of the Commission, financial policies, and the duties of the Commission, among other provisions. The Act also addresses the interplay between the Commission and state-specific shipping services, as well as the financial and operational oversight mechanisms to be employed by the Commission.

Scope and Application

The Australian Shipping Commission Amendment Act 1977 applies to the Australian Shipping Commission, which is the entity responsible for the management and operation of shipping services within the Commonwealth of Australia. This legislation amends the Australian Shipping Commission Act 1956, modifying various aspects of the Commission's operations, governance, and financial management. The amendments include changes to the definition of "approved bank," the term of appointment for Commissioners, the borrowing powers of the Commission, and the financial policy governing the distribution of profits to the Commonwealth. The Act applies nationally across Australia, as it pertains to the federal entity, the Australian Shipping Commission. Notably, the Act does not specify any exclusions or exemptions from its provisions, indicating that its reach is intended to be comprehensive in nature. The Act also extends its application through subordinate instruments, such as regulations that may further define the scope of the Commission's functions and powers conferred by State Acts.

Key Provisions

The Australian Shipping Commission Amendment Act 1977 amends the Australian Shipping Commission Act 1956 (the Principal Act) in several significant ways. Section 3 of the Amendment Act revises the definitions of "approved bank" and "Commission" within the Principal Act. An "approved bank" is now defined as a trading bank under the Banking Act 1959 or another bank approved by the Treasurer. The "Commission" is defined as the Australian Shipping Commission. Section 4 of the Amendment Act introduces a new sub-section (1a) to section 8 of the Principal Act, allowing a person to simultaneously serve as a Commissioner (excluding the Chairman) and the General Manager of the Commission. Under section 5 of the Amendment Act, the period of appointment for a Commissioner is altered. Commissioners are now appointed for a period not exceeding five years, as specified in their instrument of appointment, and are eligible for re-appointment. Section 6 modifies the financial limit for certain actions by the Commission, increasing the threshold from $100,000 to $500,000. Furthermore, section 7 introduces a new section 16a into the Principal Act, enabling the Commission to perform functions and powers conferred on it by State Acts, specifically related to shipping services for the carriage of goods within a state or in conjunction with land carriage when incident to sea carriage. Section 8 of the Amendment Act adds a new sub-section (6) to section 17 of the Principal Act, requiring the Minister to conduct an inquiry if directing the Commission to provide a shipping service for a particular area. This inquiry must assess whether the requirements could be met by another entity and, if so, whether financial or other assistance from the Commonwealth would be necessary. Section 9 introduces a new section 17a into the Principal Act, outlining the financial policy for the Commission. The Minister determines the percentage of the Commission's capital representing a reasonable return for coastal shipping services, which the Commission must strive to achieve. The Commission must submit financial estimates to the Minister and review its financial results to ensure it meets its profit targets. Section 10 amends section 18 of the Principal Act, stipulating that the Commission's policy for overseas shipping services should aim to secure sufficient revenue to cover all expenditures and allow a reasonable return to the Commonwealth. Section 11 repeals section 19 of the Principal Act and substitutes it with new provisions regarding the Minister's approval of rates of charge for services provided by the Commission. Section 12 repeals section 24a of the Principal Act, while section 13 modifies section 28 to change the purpose of capital for the Commission. Section 14 removes the requirement for the Treasurer's concurrence for payments to the Commonwealth by the Commission, as amended in section 29 of the Principal Act. Section 15 updates section 30 to allow the Commission to borrow moneys with the Treasurer's approval, setting the interest rates and terms equivalent to those for comparable private sector shipping undertakings. Section 16 amends section 32 to remove the requirement for fixed rates of interest on moneys borrowed by the Commission. Section 17 removes the Treasurer's concurrence requirement for the Commission's profits, as amended in section 33 of the Principal Act. Section 18 repeals section 36 and replaces it with new provisions on the Commission's liability to taxation, clarifying that it is not a public authority or public transport authority for certain tax purposes. Section 19 amends section 39 of the Principal Act, requiring the Minister to lay the Commission's annual report and financial statements, along with the Auditor-General's report, before each House of Parliament within 15 sitting days of receipt. The Schedule to the Principal Act is amended in section 20 by removing the reference to the Trade Practices Act 1965-1967. Finally, section 21 makes formal amendments to the Principal Act, substituting "the Commonwealth" for "Australia" in various sections and sub-sections. Failure to comply with the provisions of the Australian Shipping Commission Amendment Act 1977 could result in civil or criminal consequences, depending on the nature and severity of the breach. For instance, not adhering to the financial policy outlined in section 17a could lead to insufficient profits for the Commonwealth, potentially resulting in financial penalties or legal action. Additionally, not following the requirements for Minister approval of rates of charge under section 19 could result in fines or other penalties. However, the specific penalties for breaches are not detailed in the text provided.

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