Metro Tasmania (Transitional and Consequential Provisions) Act 1997

Metro Tasmania (Transitional and Consequential Provisions) Act 1997

An Act to provide for the transfer of property, rights and liabilities to Metro Tasmania as the universal successor of the Metropolitan Transport Trust and to amend consequentially certain Acts and regulations

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Metro Tasmania (Transitional and Consequential Provisions) Act 1997 .

2.   Commencement

(1)  Sections 1 , Sections 15 and 17 and this section and Schedules 2 and 4 commence on the day after the day on which this Act receives the Royal Assent.

(2)  Subject to subsection (1), this Act commences on the day proclaimed under section 2 of the Metro Tasmania Act 1997 .

3.   Interpretation

In this Act –

Board means the board of directors of the Company;

Company means the company referred to in the Metro Tasmania Act 1997 ;

director means a director of the Company;

incorporation day means the day on which the Company is incorporated;

liabilities includes all liabilities, duties and obligations, whether actual, contingent or prospective;

MTT employee means an employee, within the meaning of the Tasmanian State Service Act 1984 , who, immediately before the incorporation day, was appointed or employed for the purposes of the repealed Act;

property means –

(a) any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property; and

(b) money, documents and securities; and

(c) any other rights;

repealed Act means the Metropolitan Transport Act 1954 ;

rights includes all rights, powers, privileges and immunities, whether actual, contingent or prospective;

Trust means the Metropolitan Transport Trust established under the repealed Act.

4.   Transfer of property, &c., to Company

(1)  On the incorporation day –

(a) the property of the Trust vests in the Company; and

(b) the liabilities of the Trust become the liabilities of the Company.

(2)  State tax is not payable in respect of any document prepared to give effect to subsection (1) .

(3)  In this section,

State tax means application or registration fees, stamp duty or any other tax, duty, fee or charge imposed by any Act or law of Tasmania.

5.   Construction of instruments

(1)  This section applies to an instrument –

(a) which was in force immediately before the incorporation day; and

(b) in which there is a reference to the Trust.

(2)  Unless the context or subject matter of the instrument otherwise indicates or requires, an instrument to which this section applies has effect on and from the incorporation day as if –

(a) the reference to the Trust were a reference to the Company; or

(b) if the case so requires, the reference included a reference to the Company.

6.   Continuation of proceedings

(1)  On and after the incorporation day –

(a) legal proceedings instituted by or against the Trust before, and pending on, the incorporation day may be continued by or, as the case may be, against the Company; and

(b) a judgment or order of a court obtained in those proceedings by or against the Trust may be enforced by or, as the case may be, against the Company; and

(c) a document addressed to and purporting to be served on the Trust relating to those proceedings is taken to be served on the Company.

(2)  Any legal or other proceedings instituted by or against the Trust before the incorporation day and pending on that day may be continued by or, as the case may be, against the Company.

(3)  A judgment or order of a court obtained in any such legal proceedings, where the proceedings are brought by or against the Trust, may be enforced by or against the Company on or after the incorporation day.

7.   Auditor

A person acting as auditor of the Trust immediately before the incorporation day continues, on that day, to act as auditor of the Company until its members appoint another person as auditor.

8.   Powers of Company in respect of matters arising under this Act

(1)  This section applies to –

(a) debts, money, claims, securities and charges relating to property that vests in the Company under this Act; and

(b) liabilities that become liabilities of the Company under this Act.

(2)  On and after the incorporation day, the Company may –

(a) in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of debts, money and claims to which this section applies that are payable to, or recoverable by, the Trust and for the prosecution of proceedings relating to any such debts, money or claims as the Trust might have done but for the enactment of this Act; and

(b) enforce and realise any security or charge to which this section applies and which is existing immediately before the incorporation day in favour of the Trust and may exercise any powers conferred under the security or charge on the Trust as if it were a security or charge in favour of the Company.

9.   Contracts and agreements

(1)  A contract, agreement, arrangement or undertaking made or entered into by the Trust, if not executed, discharged or otherwise terminated before the incorporation day, is taken to be a contract, agreement, arrangement or undertaking entered into by the Company.

(2)  A person who is a party to any such contract or agreement is not entitled to terminate that contract or agreement by reason only of the operation of this Act.

10.   Company taken to hold licences, &c.

(1)  Until the end of the triennium commencing on 1 July 1998, the Company is taken to hold such licences and to have the benefit of such exemptions granted under the Traffic Act 1925 as may be necessary to enable it to continue to provide the services provided by the Trust immediately before the incorporation day in the areas specified in Schedule 1 .

(2)  Subsection (1) has effect notwithstanding section 15(11) of the Traffic Act 1925 and sections 22A and 23 of that Act do not apply to any licence which the Company is taken to hold.

(3)  No fee is payable in respect of any licence or exemption taken to be in force under this section.

11.   Initial directors and chairperson

(1)  On the incorporation day –

(a) the persons who were, immediately before that day, holding office as directors of the Trust are taken to be appointed as the initial directors of the Board for the unexpired balance of their term of office; and

(b) the person who was at that time holding office as chairperson of the Trust is taken to be appointed as the initial chairperson of the Board.

(2)  If an initial director vacates office before the end of his or her term, a suitable person, as mentioned in section 9 of the Metro Tasmania Act 1997 , is to be appointed to replace that director for the balance of that term.

12.   Existing staff of Trust to be transferred

(1)  On the incorporation day, the employment of all MTT employees is terminated and they become employees of the Company.

(2)  On the incorporation day –

(a) the Company becomes the employer of each MTT employee; and

(b) each such employee ceases to be a State Service employee and the Tasmanian State Service Act 1984 ceases to apply to that employee –

but compensation is not payable to the employee by reason of that fact.

(3)  An MTT employee –

(a) is taken to have been employed by the Company for the same remuneration as he or she was receiving immediately before the incorporation day; and

(b) except where an award, agreement or any other law otherwise provides, retains all existing and accrued rights relating to leave as if service as an employee of the Company were a continuation of his or her service under the Tasmanian State Service Act 1984 ; and

(c) may claim those rights against the Company.

(4)  The period of service of an MTT employee under the Tasmanian State Service Act 1984 is taken to be service as an employee of the Company.

(5)  Nothing in subsection (1) or (2) prevents any of the terms or conditions of employment of an MTT employee being altered by an award, agreement or any other law having effect after the incorporation day.

(6)  The Long Service Leave (State Employees) Act 1994 continues to apply to an MTT employee unless he or she, by notice in writing given to the Company, elects that that Act is not to apply to him or her.

13.   Superannuation

(1)  The Company may, without limiting its power to establish or participate in any other superannuation scheme, participate in the superannuation scheme provided by or under the Retirement Benefits Act 1993 and, if it does participate in that scheme, it is taken to be a State authority for the purposes of that Act in respect of any of its employees who may be subject to the scheme.

(2)  The Company must make adequate provision to meet its liability under the Retirement Benefits Act 1993 to pay pension and other benefits in respect of –

(a) all MTT employees; and

(b) any of its employees who are members of a superannuation scheme referred to in subsection (1) ; and

(c) all former employees of the Trust.

(3)  Where an MTT employee is a member of a scheme established or maintained by the Trust nothing in this Act affects his or her entitlements as such a member.

14.   Regulations

(1)  The Governor may make regulations for the purpose of this Act.

(2)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.

(3)  A provision referred to in subsection (2) may take effect on the day on which this section commences or a later day.

(4)  Without limiting subsection (2) , the regulations may provide that, until the end of the triennium commencing on 1 July 1998, any provisions of the Traffic Act 1925 or the Transport Act 1981 specified in the regulations do not apply to the Company.

15.   Consequential amendments

The legislation specified in Schedule 2 is amended as specified in that Schedule.

16.   Consequential amendments

The legislation specified in Schedule 3 is amended as specified in that Schedule.

17.   Retirement Benefits Regulations 1994 amended

The Retirement Benefits Regulations 1994 are amended as specified in Schedule 4 and those amendments have effect notwithstanding section 29 of the Retirement Benefits Act 1993.

18.   Consequential amendments

The legislation specified in Schedule 5 is amended as specified in that Schedule.

19.   Repeal of Metropolitan Transport Act 1954, &c., and saving for by-laws

(1)  The Metropolitan Transport Act 1954 and the Metropolitan Transport Amendment Act 1998 are repealed.

(2)  Notwithstanding the repeal of the Metropolitan Transport Act 1954 effected by subsection (1), the Metropolitan Transport By-laws 1990 made under that Act continue in force for a period of 3 years from the incorporation day but may be amended or rescinded by regulations made under this Act.

(3)  For the purposes of subsection (2), references in the Metropolitan Transport By-laws 1990 to the Metropolitan Transport Trust are taken to be references to the Company.

20.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Transport; and

(b) the Department responsible to the Minister for Transport in relation to the administration of this Act is the Department of Transport.

SCHEDULE 1 - Metropolitan areas in which licences or exemptions taken to be in force

Section 10(1)

1.   Hobart Metropolitan Area

The area situated within a radius of 22 kilometres from the General Post Office at Hobart.

2.   Launceston Metropolitan Area

The area of the City of Launceston, as existing immediately before the commencement of the Local Government (City of Launceston Reorganization) Act 1985 , together with –

(a) such parts of the councils of St Leonards and Lilydale (as existing immediately before that commencement); and

(b) such parts of the councils of Evandale, Westbury and Beaconsfield –

as are situated within a radius of 12 kilometres from the General Post Office at Launceston.

3.   Burnie Metropolitan Area

Such area as may be required for the transport of passengers by road, in either direction, between –

(a) any places within the City of Burnie; and

(b) the City of Burnie and the town of Wynyard; and

(c) the City of Burnie and the town of Ulverstone.

SCHEDULE 2 - Consequential Amendments

Section 15

Government Prices Oversight Act 1995

1.   The long title is amended as follows:

(a) by omitting "Enterprises and Local Government Bodies" (firstly occurring) and substituting "Enterprises, Local Government Bodies, statutory authorities and State-owned companies";

(b) by omitting "Government Agencies, Government Business Enterprises and Local Government Bodies" (lastly occurring) and substituting "Agencies, Enterprises, Bodies, authorities and companies".

2.   

(1) Section 3 is amended as follows:

(a) by inserting "(1)" before "In";

(b) by inserting "or statutory authority" in the definition of "Agency" after "Enterprise";

(c) by omitting "Agency" from paragraph (b) of the definition of "community service obligation" and substituting "Agency, statutory authority, State-owned company";

(d) by omitting the definition of "dividend" and substituting the following definition:

dividend includes a dividend within the meaning of the Government Business Enterprises Act 1995 ;

(e) by omitting paragraph (b) from the definition of "monopoly provider" and substituting the following paragraph:

(b) a prescribed body which provides a monopoly service;

(f) by omitting "an Agency which is" from paragraph (a) of the definition of "Portfolio Act";

(g) by omitting "or Agency" from paragraph (a) of the definition of "Portfolio Act" and substituting "or statutory authority";

(h) by omitting paragraph (b) from the definition of "Portfolio Minister" and substituting the following paragraphs:

(b) in respect of a statutory authority or Government Business Enterprise constituted or continued by or under an Act or part of an Act, means the Minister to whom the administration of that Act or part is assigned; and

(ba) in respect of a statutory authority or Government Business Enterprise not established, constituted or continued by or under an Act or part of an Act, means the Minister to whom the administration of the statutory authority or Government Business Enterprise is assigned; and

(i) by omitting "1993;" from paragraph (c) of the definition of "Portfolio Minister" and substituting "Portfolio Minister1993; and";

(j) by inserting the following paragraph in the definition of "Portfolio Minister" after paragraph (c):

(d) in respect of a State-owned company, means the Minister to whom the administration of the Act requiring or authorising the formation of the company is assigned;

(k) by inserting the following definition after the definition of "Portfolio Minister":

prescribed body means –

(a) an Agency; and

(b) a Government Business Enterprise; and

(c) a statutory authority; and

(d) a State-owned company; and

(e) a Local Government Body;

(l) by inserting the following definition after the definition of "State charge":

State-owned company means a company incorporated under the Corporations Law which is controlled by the Crown, a Government Business Enterprise or a statutory authority or another company which is so controlled;

(2) Section 3 is further amended by inserting the following subsection:

(2)  For the purposes of the definition of "State-owned company" in subsection (1) , the provisions of the Corporations Law relating to control are taken to apply as if the Crown, Government Business Enterprise or statutory authority, as the case may be, were a corporation under that Law.

3.   Section 6(1) is amended by omitting "Government Business Enterprise, Agency or Local Government Body" and substituting "prescribed body".

4.    Section 20 is amended as follows:

(a) by omitting paragraph (b) from subsection (1) and substituting the following paragraph:

(b) a Government Business Enterprise, statutory authority or State-owned company if the Minister and Portfolio Minister approve in writing;

(b) by omitting "Body." from subsection (2)(d) and substituting "Body;";

(c) by inserting the following paragraphs in subsection (2) after paragraph (d):

(e) a statutory authority;

(f) a State-owned company.

SCHEDULE 3 - Consequential Amendments

Section 16

Constitution Act 1934

1.    Section 33(6) is amended by omitting paragraph (c) from the definition of State instrumentality .

Government Business Enterprises Act 1995

1.   After section 122, the following section is inserted:

122A.   Saving for Metro Tasmania

Notwithstanding the amendments made to Schedules 1 , 2 , 3 and 4 by the Metro Tasmania (Transitional and Consequential Provisions) Act 1997 , Part 10 of this Act continues to apply to the company referred to in section 4 of the Metro Tasmania Act 1997 in respect of the financial year ending on 30 June 1997 as if that company were a Government Business Enterprise.

2.   Part 1 of Schedule 1 is amended by omitting "Metropolitan Transport Trust".

3.   Schedule 2 is amended by omitting "Metropolitan Transport Trust".

4.   Schedule 3 is amended by omitting "Metropolitan Transport Trust".

5.   Schedule 4 is amended by omitting "Metropolitan Transport Trust".

Government Prices Oversight Act 1995

1.   After section 43, the following section is inserted:

43A.   Application of Act to Metro Tasmania

Where, on the day on which the company referred to in section 4 of the Metro Tasmania Act 1997 is incorporated, an order is in force under this Act relating to services provided by the Metropolitan Transport Trust, the order continues to have effect as if references to the Trust were references to that company.

2.   Part 1 of Schedule 1 is amended by omitting the item "Metropolitan Transport Trust 30 September 1996" and substituting the following item:

The company referred to in section 4 of the Metro Tasmania Act 1997

30 September 1999

Ombudsman Act 1978

1.    Schedule 1 is amended by omitting item 37 .

Public Health Act 1962

1.    Section 60 is amended by omitting subsection (2) .

Tasmanian State Service Act 1984

1.   Part 2 of Schedule 1 is amended by omitting the item relating to the Metropolitan Transport Trust.

Taxi Industry Act 1995

1.    Section 6(1) is amended by omitting "or the Metropolitan Transport Act 1954 ".

Traffic Act 1925

1.    Section 23 is repealed.

2.    Section 29 is repealed and the following section is substituted:

29.   Agreements regarding licensing requirements for public vehicles

(1)  The Commission may, with the approval of the Minister, enter into an agreement with any person for the performance of any functions or the discharge of any duties provided for in the regulations –

(a) in connection with the issue of licences or certificates relating to a vehicle in respect of which a licence is in force under Part III of this Act; and

(b) to ensure that vehicles used for the purpose of public transport are maintained and inspected so as to comply with any standards considered necessary by the Commission.

(2)  The agreement may provide for –

(a) vehicles to which the agreement relates to be fitted with a distinguishing label or plate while it is in force; and

(b) payment to the Commission of all expenses reasonably incurred in ensuring compliance with the agreement.

Transport Act 1981

1.    Section 5(1)(a) is amended by omitting "other than any bus service operated by the Metropolitan Transport Trust".

2.    Section 6(1)(a) is amended by omitting ", other than transport by rail and transport services operated by the Metropolitan Transport Trust".

3.    Section 6 is amended by omitting subsection (2) .

SCHEDULE 4 - Consequential Amendments

Section 17

Retirement Benefits Regulations 1994

1.    Regulation 3 is amended as follows:

(a) by inserting after the definition of "police officer" in subregulation (1) the following definition:

prescribed arrangement means an enactment, arrangement or agreement under which services currently provided by an Agency or part of an Agency are transferred as a result of –

(a) a change to its constitution; or

(b) a sale or any other arrangement which may result in any change to the terms of employment of all or some of its employees –

to another person, organisation or State authority if the enactment, arrangement or agreement is declared to be a prescribed arrangement under subregulation (1A) ;

(b) by omitting the definition of "transfer arrangement";

(c) by inserting after subregulation (1) the following subregulation:

(1A)  The Minister may, by notice published in the Gazette, declare that an enactment, arrangement or agreement is to be a prescribed arrangement for the purposes of these regulations.

2.    Regulation 4(g) is amended by omitting subparagraph (x) and substituting the following subparagraph:

(x) employed by the company referred to in section 4 of the Metro Tasmania Act 1997 who are members of a scheme established or maintained by that company; or

3.   Regulation 23 is amended as follows:

(a) by inserting "(1)" before "A permanent";

(b) by inserting the following subregulation:

(2)  A person who –

(a) becomes an employee of the company referred to in section 4 of the Metro Tasmania Act 1997 ; or

(b) as an employee, elects under regulation 45B not to continue as a contributor –

is not eligible to become, or again to become, a contributor.

4.    Regulation 37(1)(d) is amended by omitting "transfer" and substituting "prescribed".

5.   Regulation 43 is amended as follows:

(a) by omitting from subregulations (1) and (3) "or dismissal" and substituting ", dismissal or cessation of employment as a result of a prescribed arrangement";

(b) by inserting after subregulation (5) the following subregulation:

(5A)  If the amount payable under regulation 90 together with the sum payable from the Fund under subregulation (2)(a)(ii) exceeds the prescribed sum of money payable under this regulation, the balance is to be credited to the investment account established under regulation 60 .

6.   After regulation 45 , the following Division is inserted in Part 4:

Division 4 - Prescribed arrangements

45A.   Declaration of prescribed arrangement

(1)  A declaration of a prescribed arrangement may provide that –

(a) regulation 45B has effect in respect of the rights and entitlements of all contributors whose terms of employment are affected by the prescribed arrangement; or

(b) regulation 59A has effect in respect of the rights and entitlements of all eligible employees whose terms of employment are so affected; or

(c) both those regulations so have effect.

(2)  If the declaration provides that regulation 45B or 59A or both of them are to have effect, the declaration is to specify a commencement day for the purposes of the relevant regulation and, on publication of the declaration, the application of the relevant regulation extends to the contributors or eligible employees accordingly.

45B.   Application of prescribed arrangements to contributors

(1)  This regulation applies to contributors to whom a declaration of a prescribed arrangement is expressed to apply.

(2)  Within 60 days after the commencement day specified in the declaration, the Board must, in writing, notify the contributors to whom this regulation applies of –

(a) their entitlements under regulation 37 and the value of the employer contributions to that benefit under regulation 90 ; and

(b) the difference in the level of employer superannuation support provided under regulation 90 for entitlements calculated under this Part and Part 5 .

(3)  After receipt of the notification and within 6 months after the commencement day or a longer period determined by the Board, an employee who was a contributor immediately before that day may, in writing, notify the Board and the person, organisation or State authority to which the relevant services have been transferred that he or she elects not to continue as a contributor.

(4)  A notice of election under subregulation (3) is to include –

(a) a copy of the notification referred to in subregulation (2) ; and

(b) a statement to the effect that the contributor making the election has taken into account the matters referred to in that notification.

(5)  On making an election under subregulation (3) , an employee –

(a) is taken to have ceased to be a contributor as a result of the relevant prescribed arrangement; and

(b) is entitled to a lump sum benefit calculated in accordance with regulation 37 .

(6)  An employee who does not make an election as mentioned in subregulation (3) is taken to remain as a contributor.

7.   After regulation 59 , the following regulation is inserted in Division 3:

59A.   Application of prescribed arrangements to eligible employees

(1)  This regulation applies to eligible employees to whom a declaration of a prescribed arrangement is expressed to apply.

(2)  Within 60 days after the commencement day specified in the declaration, the Board must, in writing, notify the eligible employees to whom this regulation applies of –

(a) their accrued benefit under this Part; and

(b) the level of employer superannuation support provided under this Part.

(3)  After receipt of the notification and within 6 months after the commencement day or a longer period determined by the Board, an employee who was an eligible employee immediately before that day may, in writing, notify the Board and the person, organisation or State authority to which the relevant services have been transferred that he or she elects not to continue as an eligible employee.

(4)  A notice of election under subregulation (3) is to include –

(a) a copy of the notification referred to in subregulation (2) ; and

(b) a statement to the effect that the eligible employee making the election has taken into account the matters referred to in that notification.

(5)  On making an election under subregulation (3) , the employee –

(a) is taken to have ceased to be an eligible employee as a result of the relevant prescribed arrangement; and

(b) is entitled to a benefit in accordance with this Division.

(6)  An eligible employee who does not make an election as mentioned in subregulation (3) is taken to remain as an eligible employee.

8.    Regulation 90 is amended as follows:

(a) by inserting after "43(4)(c)" in subregulation (1)(b)(i) "and who does not cease to be a contributor by reason of a prescribed arrangement";

(b) by inserting after subparagraph (i) of subregulation (1)(b) the following subparagraph:

(ia) in respect of a contributor who ceases to be a contributor as a result of a prescribed arrangement and is entitled to both a benefit under regulation 37 and an amount of money under regulation 43(4) (c), the total benefit payable under regulation 37 less the amount payable by the Fund under regulation 43(2)(a)(ii) ; or

(c) by inserting after subregulation (4) the following subregulation:

(5)  The application of subregulation (1) , as amended by the Metro Tasmania (Transitional and Consequential Provisions) Act 1997 , extends to an arrangement or agreement made after 1 September 1997 which was at the relevant time a transfer arrangement within the meaning of these regulations as then in force.

9.    Regulation 91(1) is amended by omitting paragraph (c) and substituting the following paragraph:

(c) where appropriate, a prescribed arrangement.

SCHEDULE 5 - Consequential Amendments

Regulation 18

Traffic (Miscellaneous) Regulations 1968

1.    Regulation 3 is amended by omitting "relation" from the definition of authorised member .

Traffic (Public Vehicles) Regulations 1967

1.    Regulation 3 is amended by omitting "relation" from the definition of authorised member .

[Second reading presentation speech made in:

House of Assembly on 2 DECEMBER 1997

Legislative Council on 9 DECEMBER 1997]