Commonwealth Numbered Acts Commonwealth Numbered ActsCommonwealth Services Delivery Agency Act 1997
1 Title
Omit " to establish an agency for the provision of certain Commonwealth services, and for related purposes ", substitute " relating to the provision of certain services, and for other purposes ".
2 Section 1
Omit " Commonwealth Services Delivery Agency Act 1997 ", substitute " Human Services (Centrelink) Act 1997 ".
Note: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act's previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901 ).
3 Section 2A
Repeal the section.
4 Section 3 (definition of Agency )
Repeal the definition.
5 Section 3
Insert:
"centrelink program" has the meaning given by section 40.
6 Section 3
Insert:
"Chief Executive Centrelink" means the Chief Executive Centrelink referred to in section 7.
7 Section 3
Insert:
"Chief Executive Medicare" has the same meaning as in the Human Services (Medicare) Act 1973 .
8 Section 3 (definition of Chief Executive Officer )
Repeal the definition.
9 Section 3 (definition of Commonwealth authority )
Repeal the definition.
10 Section 3 (definition of Commonwealth service )
Repeal the definition.
11 Section 3
Insert:
"Departmental employee" means an APS employee in the Department.
Note: APS employee is defined in the Acts Interpretation Act 1901 .
12 Section 3 (definition of employee )
Repeal the definition.
13 Section 3
Insert:
"function" includes power.
14 Section 3
Insert:
"medicare program" has the same meaning as in the Human Services (Medicare) Act 1973 .
15 Section 3
Insert:
"perform" includes exercise.
16 Section 3 (definition of principal officer )
Repeal the definition.
17 Section 3
Insert:
"Secretary" means the Secretary of the Department.
18 Section 3 (definition of service arrangements )
Repeal the definition.
19 Section 3
Insert:
"service delivery functions" , in relation to the Chief Executive Centrelink, has the meaning given by section 8A.
20 Part 2
Repeal the Part.
21 Part 3 (heading)
Repeal the heading, substitute:
Part 3 -- Chief Executive Centrelink
22 Division 1 of Part 3 (heading)
Repeal the heading.
23 Section 7
Repeal the section, substitute:
(1) There is to be a Chief Executive Centrelink.
(2) The Chief Executive Centrelink is to be a person who is:
(a) an SES employee in the Department; and
(b) specified in a written instrument made by the Secretary.
(3) A person must not be specified in an instrument under paragraph (2)(b) if the person is, or is acting as:
(a) the Chief Executive Medicare; or
(b) the Child Support Registrar.
(4) An instrument under paragraph (2)(b) is not a legislative instrument.
7A Acting Chief Executive Centrelink
(1) The Secretary may appoint an SES employee in the Department to act as the Chief Executive Centrelink:
(a) during a vacancy in the position of Chief Executive Centrelink (whether or not an appointment has previously been made to the position); or
(b) during any period, or during all periods, when the Chief Executive Centrelink:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the position.
(2) A person must not be appointed under subsection (1) if the person is, or is acting as:
(a) the Chief Executive Medicare; or
(b) the Child Support Registrar.
(3) Anything done by or in relation to a person purporting to act under an appointment under subsection (1) is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
Note: See sections 20 and 33A of the Acts Interpretation Act 1901 .
24 Subsection 8(1)
Omit "Chief Executive Officer has", substitute "Chief Executive Centrelink has".
Note 1: The heading to section 8 is altered by omitting " Chief Executive Officer " and substituting " Chief Executive Centrelink ".
Note 2: The following heading to subsection 8(1) is inserted " Functions--general ".
25 Paragraph 8(1)(a)
Repeal the paragraph, substitute:
(a) the service delivery functions mentioned in section 8A;
26 Paragraph 8(1)(b)
Omit "Chief Executive Officer", substitute "Chief Executive Centrelink".
26A After paragraph 8(1)(b)
Insert:
(ba) any functions that are prescribed by the regulations;
27 Paragraph 8(1)(c)
Repeal the paragraph.
27A Subsection 8(2)
Repeal the subsection.
28 At the end of section 8
Add:
Parallel function
(3) A function prescribed by regulations made for the purposes of paragraph (1)(ba) may be a specified function that another person (the primary person ) has under a law of the Commonwealth.
(4) When the specified function is performed by the Chief Executive Centrelink, the function is, for the purposes of that or any other law of the Commonwealth, taken to have been performed by the primary person.
(5) The performance of the specified function by the Chief Executive Centrelink does not prevent the performance of the function under the law of the Commonwealth by the primary person.
(6) For the purposes of subsection (3), it is immaterial whether the specified function is a function that can be delegated.
(7) For the purposes of subsection (3), it is immaterial whether the specified function is a function under a law administered by the Minister.
(8) Subsection (3) does not limit paragraph (1)(ba).
(9) Subsections (6) and (7) are enacted for the avoidance of doubt.
Function of acting on behalf of another person
(10) A function prescribed by regulations made for the purposes of paragraph (1)(ba) may be a function of acting on behalf of another person (the primary person ) in the performance of a function that the primary person may perform, whether under a law of the Commonwealth or otherwise.
(11) For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform is a function that can be delegated.
(12) For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform under a law of the Commonwealth is a function under a law administered by the Minister.
(13) For the purposes of subsection (10), it is immaterial whether a function that the primary person may perform otherwise than under a law of the Commonwealth is a function that is within the responsibilities of the Minister.
(14) Subsection (10) does not limit paragraph (1)(ba).
(15) Subsections (10) to (14) are enacted for the avoidance of doubt.
29 Section 8A
Repeal the section, substitute:
8A Chief Executive Centrelink's service delivery functions
The Chief Executive Centrelink's service delivery functions are as follows:
(a) to provide services, benefits, programs or facilities that are provided for by the Commonwealth for a purpose for which the Parliament has the power to make laws;
(b) to provide services, benefits, programs or facilities that are provided for by a person other than the Commonwealth for a purpose for which the Parliament has the power to make laws.
8B Agreements about performance of Chief Executive Centrelink's functions
The Secretary of the Department may enter into a written agreement with the Secretary of another Department about the performance of any of the Chief Executive Centrelink's functions.
30 Sections 9, 10 and 11
Repeal the sections.
31 Subsection 12(1)
Omit "Chief Executive Officer may, by writing, delegate to an employee all or any of the powers or functions of the Chief Executive Officer", substitute "Chief Executive Centrelink may, by writing, delegate to a Departmental employee all or any of the functions of the Chief Executive Centrelink".
32 After subsection 12(1)
Insert:
(1A) For the purposes of subsection (1), it is immaterial whether a function of the Chief Executive Centrelink is a function of the kind mentioned in subsection 8(3) or (10).
33 Subsection 12(2)
Omit "Chief Executive Officer must not delegate powers or functions", substitute "Chief Executive Centrelink must not delegate functions".
34 Subsection 12(3)
Omit "Chief Executive Officer may, by writing, delegate to an employee all or any of the powers or functions delegated to the Chief Executive Officer", substitute "Chief Executive Centrelink may, by writing, delegate to a Departmental employee all or any of the functions delegated to the Chief Executive Centrelink".
35 Subsection 12(4)
Omit "Chief Executive Officer must not delegate powers or functions", substitute "Chief Executive Centrelink must not delegate functions".
36 Subsection 12(4)
Omit "Chief Executive Officer would", substitute "Chief Executive Centrelink would".
37 At the end of section 12
Add:
(5) The Chief Executive Centrelink must not delegate functions under subsection (1) or (3) to a Departmental employee who is, or is acting as:
(a) the Chief Executive Medicare; or
(b) the Child Support Registrar.
38 After section 12
Insert:
(1) A law of a State or Territory may confer powers or functions, or impose duties, on the Chief Executive Centrelink.
Note: Section 15 sets out when such a law imposes a duty on the Chief Executive Centrelink.
(2) Subsection (1) does not authorise the conferral of a power or function, or the imposition of a duty, by a law of a State or Territory to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Chief Executive Centrelink; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Chief Executive Centrelink cannot exercise a power, or perform a duty or function, under a law of a State or Territory without the written approval of the Minister.
14 How duty is imposed on Chief Executive Centrelink by State and Territory laws
Application
(1) This section applies if a law of a State or Territory purports to impose a duty on the Chief Executive Centrelink.
Note: Section 15 sets out when such a law imposes a duty on the Chief Executive Centrelink.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Chief Executive Centrelink.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 13 to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Chief Executive Centrelink.
(6) Subsections (1) to (5) do not limit section 13.
15 When State and Territory laws impose a duty on Chief Executive Centrelink
For the purposes of sections 13 and 14, a law of a State or Territory imposes a duty on the Chief Executive Centrelink if:
(a) the law confers a power or function on the Chief Executive Centrelink; and
(b) the circumstances in which the power or function is conferred give rise to an obligation on the Chief Executive Centrelink to exercise the power or to perform the function.
16 Chief Executive Centrelink may be assisted by Departmental employees
A Departmental employee may assist the Chief Executive Centrelink in the performance of any of the functions of the Chief Executive Centrelink.
39 Division 2 of Part 3
Repeal the Division.
40 Part 4
Repeal the Part.
41 Subsection 38(1)
Omit "Chief Executive Officer's", substitute "Secretary's".
42 Paragraph 38(1)(f)
Omit "the protected symbol", substitute "a protected symbol".
43 Subsections 38(2) and (3)
Omit "the protected symbol", substitute "a protected symbol".
44 Subsection 38(4) (definition of protected symbol )
Repeal the definition, substitute:
"protected symbol" means:
(a) a symbol:
(i) that is used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink; and
(ii) the design of which is set out in the regulations; or
(b) a symbol:
(i) that is used, or for use, in connection with one or more services, benefits, programs or facilities, where Departmental employees are involved in the provision of those services, benefits, programs or facilities; and
(ii) the design of which is set out in the regulations.
45 Subsection 38(4) (paragraph (c) of the definition of protection time )
Omit "the protected symbol", substitute "a protected symbol".
46 At the end of section 38
Add:
(5) To avoid doubt, a name may be prescribed by regulations made for the purposes of paragraph (b) of the definition of protected name in subsection (4) even if the name is not used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink.
(6) To avoid doubt, the design of a symbol may be set out in regulations made for the purposes of subparagraph (b)(ii) of the definition of protected symbol in subsection (4) even if the symbol is not used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink.
(7) For the purposes of subparagraph (b)(i) of the definition of protected symbol in subsection (4), a person is taken to be involved in the provision of services, benefits, programs or facilities if the person's duties include:
(a) making payments in connection with the services, benefits, programs or facilities; or
(b) making decisions in connection with the services, benefits, programs or facilities; or
(c) collecting information in connection with the services, benefits, programs or facilities; or
(d) providing information about the services, benefits, programs or facilities.
47 Section 39
Omit "Chief Executive Officer", substitute "Chief Executive Centrelink".
Note: The heading to section 39 is altered by omitting " Chief Executive Officer " and substituting " Chief Executive Centrelink ".
48 Section 40
Repeal the section, substitute:
(1) For the purposes of a law of the Commonwealth, the following are centrelink programs :
(a) services, benefits, programs or facilities, where:
(i) the Chief Executive Centrelink is; or
(ii) Departmental employees are;
involved in the provision of the services, benefits, programs or facilities; or
(b) services, benefits, programs or facilities specified in a legislative instrument made by the Minister for the purposes of this paragraph.
(2) However, the following are not centrelink programs :
(a) medicare programs;
(b) services, benefits, programs or facilities that are provided for under:
(i) the Child Support (Assessment) Act 1989 ; or
(ii) the Child Support (Registration and Collection) Act 1988 ; or
(c) services, benefits, programs or facilities that are specified in a legislative instrument made by the Minister for the purposes of this paragraph.
(3) For the purposes of paragraph (1)(a), a person is taken to be involved in the provision of services, benefits, programs or facilities if the person's duties include:
(a) making payments in connection with the services, benefits, programs or facilities; or
(b) making decisions in connection with the services, benefits, programs or facilities; or
(c) collecting information in connection with the services, benefits, programs or facilities; or
(d) providing information about the services, benefits, programs or facilities.
40A Multiple secrecy provisions
Scope
(1) This section applies to particular information if:
(a) the information is subject to a regulatory regime under a designated program Act (the first program Act ); and
(b) the information is also subject to a regulatory regime under another designated program Act (the second program Act ).
For the purposes of this subsection, in determining whether particular information is subject to a regulatory regime under a designated program Act, disregard whether the information is subject to a regulatory regime under any other designated program Act.
Disclosure or use of information etc.
(2) If:
(a) the Secretary, the Chief Executive Centrelink or a Departmental employee:
(i) discloses the information; or
(ii) uses the information; or
(iii) makes a record of the information; and
(b) the Secretary, the Chief Executive Centrelink or the Departmental employee, as the case may be, does so without contravening the first program Act;
the disclosure, use, or making of the record, as the case may be, does not contravene the second program Act.
Definitions
(3) In this section:
"designated program Act" means:
(a) the A New Tax System (Family Assistance) (Administration) Act 1999 ; or
(b) the Aged Care Act 1997 ; or
(c) the Child Support (Assessment) Act 1989 ; or
(d) the Child Support (Registration and Collection) Act 1988 ; or
(e) the Dental Benefits Act 2008 ; or
(f) the Disability Services Act 1986 ; or
(g) the Health Insurance Act 1973 ; or
(h) the Medical Indemnity Act 2002 ; or
(i) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 ; or
(j) the National Health Act 1953 ; or
(k) the Paid Parental Leave Act 2010 ; or
(l) the Private Health Insurance Act 2007 ; or
(m) the Social Security (Administration) Act 1999 ; or
(n) the Student Assistance Act 1973 ; or
(o) an Act specified in a legislative instrument made by the Minister for the purposes of this paragraph.
"disclose" means disclose, divulge or communicate.
Part 2 -- Transitional provisions
49 Definitions
In this Part:
binding non-employment agreement means an agreement:
(a) that is legally enforceable; and
(b) to which the Commonwealth or the Chief Executive Officer is a party; and
(c) that does not contain any or all of the terms and conditions of employment of one or more employees; and
(d) that was entered into before the transition time.
Centrelink means the Commonwealth Services Delivery Agency established by the Commonwealth Services Delivery Agency Act 1997 as in force before the transition time.
Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997 as amended by this Schedule.
Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973 as amended by Schedule 1 to this Act.
Chief Executive Officer means the Chief Executive Officer (within the meaning of the Commonwealth Services Delivery Agency Act 1997 as in force immediately before the transition time).
Departmental employee has the same meaning as in the Human Services (Centrelink) Act 1997 as amended by this Schedule.
government body means:
(a) a department of the Commonwealth, a State or a Territory; or
(b) an agency, authority or instrumentality of the Commonwealth, a State or a Territory.
non-binding governmental agreement means an agreement:
(a) between Centrelink and a government body; and
(b) that is not legally enforceable; and
(c) that was entered into before the transition time.
Secretary means the Secretary of the Department.
transition time means the commencement of this Schedule.
Division 2--Acts of the CEO etc.
50 Transitional--acts of the CEO under financial management and public service legislation etc.
Scope
(1) This item applies to an act if:
(a) the act was done by the Chief Executive Officer before the transition time under:
(i) the Financial Management and Accountability Act 1997 ; or
(ii) regulations under the Financial Management and Accountability Act 1997 ; or
(iii) Finance Minister's Orders under the Financial Management and Accountability Act 1997 ; or
(iv) the Public Service Act 1999 ; or
(v) regulations under the Public Service Act 1999 ; or
(b) the act was done in relation to the Chief Executive Officer before the transition time under, or for the purposes of:
(i) the Financial Management and Accountability Act 1997 ; or
(ii) regulations under the Financial Management and Accountability Act 1997 ; or
(iii) Finance Minister's Orders under the Financial Management and Accountability Act 1997 ; or
(iv) the Public Service Act 1999 ; or
(v) regulations under the Public Service Act 1999 .
Note: For acts of delegates, see paragraph 34AB(c) of the Acts Interpretation Act 1901 .
Effect after transition time
(2) After the transition time, the act has effect:
(a) if paragraph (1)(a) applies--as if it had been done by the Secretary; or
(b) if paragraph (1)(b) applies--as if it had been done in relation to the Secretary.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified act.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make any of the following declarations:
(a) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Chief Executive Centrelink;
(b) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Centrelink.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
51 Transitional--acts of the CEO under binding non-employment agreements etc.
Scope
(1) This item applies to an act if:
(a) the act was done by the Chief Executive Officer before the transition time under, or for the purposes of, a binding non-employment agreement; or
(b) the act was done in relation to the Chief Executive Officer before the transition time under, or for the purposes of, a binding non-employment agreement.
Effect after transition time
(2) After the transition time, the act has effect:
(a) if paragraph (1)(a) applies--as if it had been done by the Secretary; or
(b) if paragraph (1)(b) applies--as if it had been done in relation to the Secretary.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified act.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make any of the following declarations:
(a) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Chief Executive Centrelink;
(b) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Chief Executive Medicare;
(c) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Centrelink;
(d) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Medicare.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
52 Transitional--acts of the CEO under non-binding governmental agreements etc.
Scope
(1) This item applies to an act if:
(a) the act was done by the Chief Executive Officer before the transition time under, or for the purposes of, a non-binding governmental agreement; or
(b) the act was done in relation to the Chief Executive Officer before the transition time under, or for the purposes of, a non-binding governmental agreement.
Effect after transition time
(2) After the transition time, the act has effect:
(a) if paragraph (1)(a) applies--as if it had been done by the Chief Executive Centrelink; or
(b) if paragraph (1)(b) applies--as if it had been done in relation to the Chief Executive Centrelink.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified act.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make any of the following declarations:
(a) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Secretary;
(b) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Chief Executive Medicare;
(c) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Secretary;
(d) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Medicare.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
53 Transitional--other acts of the CEO
Scope
(1) This item applies to an act if:
(a) both:
(i) the act was done by the Chief Executive Officer before the transition time; and
(ii) none of items 50, 51 and 52 applies to the act; or
(b) both:
(i) the act was done in relation to the Chief Executive Officer before the transition time; and
(ii) none of items 50, 51 and 52 applies to the act.
Effect after transition time
(2) After the transition time, the act has effect:
(a) if paragraph (1)(a) applies--as if it had been done by the Chief Executive Centrelink; or
(b) if paragraph (1)(b) applies--as if it had been done in relation to the Chief Executive Centrelink.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified act.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make any of the following declarations:
(a) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Secretary;
(b) if paragraph (1)(a) applies--that the act has effect, after the transition time, as if it had been done by the Chief Executive Medicare;
(c) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Secretary;
(d) if paragraph (1)(b) applies--that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Medicare.
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
54 Transitional--documents lodged with Centrelink
Scope
(1) This item applies to a document that was given to, or lodged with, Centrelink before the transition time.
Effect after transition time
(2) After the transition time, the document has effect as if it had been given to, or lodged with, the Department.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified document.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under subitem (3) in relation to a specified document, the Minister may at the same time, by legislative instrument, make either of the following declarations:
(a) that the document has effect, after the transition time, as if it had been given to, or lodged with, the Chief Executive Centrelink;
(b) that the document has effect, after the transition time, as if it had been given to, or lodged with, the Chief Executive Medicare.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
55 Transitional--other acts done in relation to Centrelink etc.
Scope
(1) This item applies to an act if:
(a) the act was done in relation to Centrelink before the transition time; and
(b) the act is not covered by item 54.
Effect after transition time
(2) After the transition time, the act has effect as if it had been done in relation to the Department.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified act.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under subitem (3) in relation to a specified act, the Minister may at the same time, by legislative instrument, make either of the following declarations:
(a) that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Centrelink;
(b) that the act has effect, after the transition time, as if it had been done in relation to the Chief Executive Medicare.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
56 Transitional--acts done by employees of Centrelink under Commonwealth laws etc.
Scope
(1) This item applies to an act if:
(a) the act was done by an employee of Centrelink before the transition time under a law of the Commonwealth; or
(b) the act was done in relation to an employee of Centrelink before the transition time under a law of the Commonwealth.
Effect after transition time
(2) After the transition time, the act has effect:
(a) if paragraph (1)(a) applies--as if it had been done by a Departmental employee; or
(b) if paragraph (1)(b) applies--as if it has been done in relation to a Departmental employee.
(3) The Minister may, by legislative instrument, declare that subitem (2) does not apply to a specified act.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) A declaration made under subitem (3) after the transition time takes effect at the transition time.
(5) A declaration made under subitem (3) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
57 Variation or revocation of instruments etc.
(1) If an act consists of the making of an instrument, this Division does not, by implication, prevent the instrument from being varied, amended or revoked after the transition time.
(2) If an act consists of the making of an agreement, this Division does not, by implication, prevent the agreement from being varied or terminated after the transition time.
57A This Division does not apply to making of lapsed instruments etc.
(1) This Division does not apply to the making of an instrument, agreement or arrangement, before the transition time, under any of the following provisions of the Commonwealth Services Delivery Agency Act 1997 :
(a) subsection 7(1);
(b) paragraph 8(1)(c);
(ba) section 8A;
(c) section 9;
(d) section 10;
(e) Division 2 of Part 3.
(2) Subitem (1) is enacted for the avoidance of doubt.
Division 3--Translation of references in documents
58 Transitional--translation of references in binding non-employment agreements
Scope
(1) This item applies to an agreement if:
(a) the agreement is a binding non-employment agreement; and
(b) the agreement was in force immediately before the transition time.
Effect after transition time
(2) After the transition time, the agreement has effect as if:
(a) a reference (if any) in the agreement to the Commonwealth of Australia represented by the Chief Executive Officer were a reference to the Commonwealth of Australia represented by the Department; and
(b) a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Secretary; and
(c) a reference (if any) in the agreement to Centrelink were a reference to the Department.
(3) The Minister may, by legislative instrument, make any of the following declarations:
(a) that paragraph (2)(a) does not apply to a specified agreement;
(b) that paragraph (2)(b) does not apply to a specified agreement;
(c) that paragraph (2)(c) does not apply to a specified agreement.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under paragraph (3)(b) in relation to a specified agreement, the Minister may at the same time, by legislative instrument, make either of the following declarations:
(a) that the agreement has effect, after the transition time, as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (2)(a)) were a reference to the Chief Executive Centrelink;
(b) that the agreement has effect, after the transition time, as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (2)(a)) were a reference to the Chief Executive Centrelink.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
Agreement may be varied etc.
(7) This item does not, by implication, prevent the agreement from being varied or terminated after the transition time.
59 Transitional--translation of references in non-binding governmental agreements
Scope
(1) This item applies to an agreement if:
(a) the agreement is a non-binding governmental agreement; and
(b) the agreement was in force immediately before the transition time.
Effect after transition time
(2) After the transition time, the agreement has effect as if:
(a) a reference (if any) in the agreement to the Commonwealth of Australia represented by the Chief Executive Officer were a reference to the Commonwealth of Australia represented by the Department; and
(b) a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (a)) were a reference to the Chief Executive Centrelink; and
(c) a reference (if any) in the agreement to Centrelink were a reference to the Department.
(3) The Minister may, by legislative instrument, make any of the following declarations:
(a) that paragraph (2)(a) does not apply to a specified agreement;
(b) that paragraph (2)(b) does not apply to a specified agreement;
(c) that paragraph (2)(c) does not apply to a specified agreement.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under paragraph (3)(b) in relation to a specified agreement, the Minister may at the same time, by legislative instrument, make either of the following declarations:
(a) that the agreement has effect, after the transition time, as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (2)(a)) were a reference to the Secretary;
(b) that the agreement has effect, after the transition time, as if a reference (if any) in the agreement to the Chief Executive Officer (other than a reference covered by paragraph (2)(a)) were a reference to the Chief Executive Medicare.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
Agreement may be varied etc.
(7) This item does not, by implication, prevent the agreement from being varied or terminated after the transition time.
60 Transitional--translation of references in other instruments
Scope
(1) This item applies to an instrument if:
(a) neither item 58 nor item 59 applies to the instrument; and
(b) the instrument was in force immediately before the transition time.
Effect after transition time
(2) After the transition time, the instrument has effect as if:
(a) a reference (if any) in the instrument to the Chief Executive Officer were a reference to the Chief Executive Centrelink; and
(b) a reference (if any) in the instrument to Centrelink were a reference to the Department.
(3) The Minister may, by legislative instrument, make either of the following declarations:
(a) that paragraph (2)(a) does not apply to a specified instrument;
(b) that paragraph (2)(b) does not apply to a specified instrument.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(4) If, at a particular time, the Minister makes a declaration under paragraph (3)(a) in relation to a specified instrument, the Minister may at the same time, by legislative instrument, make either of the following declarations:
(a) that the instrument has effect, after the transition time, as if a reference (if any) in the agreement to the Chief Executive Officer were a reference to the Secretary;
(b) that the instrument has effect, after the transition time, as if a reference (if any) in the agreement to the Chief Executive Officer were a reference to the Chief Executive Medicare.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003 .
(5) A declaration made under subitem (3) or (4) after the transition time takes effect at the transition time.
(6) A declaration made under subitem (3) or (4) before the transition time, in accordance with section 4 of the Acts Interpretation Act 1901 , takes effect at the transition time.
Instrument may be varied etc.
(7) This item does not, by implication, prevent the instrument from being varied, amended, revoked, or terminated after the transition time.
Definition
(8) In this item:
instrument includes:
(a) a contract, deed, undertaking or agreement; and
(b) a notice, authority, order or instruction; and
(c) an instrument made under an Act or under regulations;
but does not include an Act.
60A This Division does not apply to lapsed instruments etc.
(1) This Division does not apply to an instrument, agreement or arrangement made before the transition time under any of the following provisions of the Commonwealth Services Delivery Agency Act 1997 :
(a) subsection 7(1);
(b) paragraph 8(1)(c);
(ba) section 8A;
(c) section 9;
(d) section 10;
(e) Division 2 of Part 3.
(2) Subitem (1) is enacted for the avoidance of doubt.
Division 4--Proceedings in courts and tribunals
61 Transitional--administrative law proceedings
Scope
(1) This item applies to proceedings:
(a) that are pending in a court or tribunal immediately before the transition time; and
(b) to which the Chief Executive Officer is a party;
if the proceedings are:
(c) in the Administrative Appeals Tribunal; or
(d) in the Social Security Appeals Tribunal; or
(e) in a court under the Administrative Decisions (Judicial Review) Act 1977 ; or
(f) in a court or tribunal in relation to the review (otherwise than under the Administrative Decisions (Judicial Review) Act 1977 ) of:
(i) a decision; or
(ii) conduct engaged in for the purpose of making a decision; or
(iii) a failure to make a decision.
Substitution of party
(2) At the transition time, the Chief Executive Centrelink is substituted as a party to the proceedings.
Court or tribunal may make another substitution
(3) If the court or tribunal considers that it is in the interests of the administration of justice to do so, the court or tribunal may, by order, determine:
(a) that subitem (2) does not apply to the proceedings; and
(b) that a person specified in the order is substituted as a party to the proceedings.
62 Transitional--other proceedings to which the Commonwealth represented by the CEO is a party
Scope
(1) This item applies to proceedings if:
(a) the proceedings are pending in a court or tribunal immediately before the transition time; and
(b) a party to the proceedings is described as the Commonwealth represented by the Chief Executive Officer.
Description of party
(2) After the transition time, the party is to be described as the Commonwealth represented by the Department.
Court or tribunal order
(3) If the court or tribunal considers that it is in the interests of the administration of justice to do so, the court or tribunal may, by order, determine:
(a) that subitem (2) does not apply to the proceedings; and
(b) that the party is to be described in a manner specified in the order.
63 Transitional--other proceedings to which the CEO or Centrelink is a party
Scope
(1) This item applies to proceedings if:
(a) the proceedings are pending in a court or tribunal immediately before the transition time; and
(b) item 61 does not apply to the proceedings; and
(c) a party to the proceedings is:
(i) the Chief Executive Officer; or
(ii) Centrelink.
Substitution of party
(2) If the court or tribunal considers that it is in the interests of the administration of justice to do so, the court of tribunal may, by order, determine that, after the transition time, a person specified in the order is substituted as a party to the proceeding.
64 Transitional--other proceedings to which the Commonwealth represented by Centrelink is a party
Scope
(1) This item applies to proceedings if:
(a) the proceedings are pending in a court or tribunal immediately before the transition time; and
(b) a party to the proceedings is described as the Commonwealth of Australia represented by Centrelink.
Court or tribunal order
(2) If the court or tribunal considers that it is in the interests of the administration of justice to do so, the court or tribunal may, by order, determine that the party is to be described in the manner specified in the order.
65 Other powers of courts and tribunals unaffected
The powers conferred on a court or tribunal under this Division are in addition to, and not instead of, any other powers of the court or tribunal.
66 Transitional--movement of employees from Centrelink to the Department
The movement of APS employees from Centrelink to the Department is to be in accordance with a determination under section 72 of the Public Service Act 1999 .
67 Transitional--employment agreements and determinations
Transferring employees
(1) For the purposes of this item, a person is a transferring employee if:
(a) the person was an APS employee in Centrelink immediately before the transition time; and
(b) the person is covered by a determination that:
(i) is made under section 72 of the Public Service Act 1999 ; and
(ii) causes the person, at the transition time, to become an APS employee in the Department.
(2) If:
(a) a person is a transferring employee (other than an SES employee); and
(b) immediately before the transition time, a designated agreement applied to the person's employment in Centrelink; and
(c) there is no enterprise agreement that:
(i) commences at the transition time; and
(ii) was made by the Secretary on behalf of the Commonwealth; and
(iii) covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department;
then:
(d) the designated agreement (as in force immediately before the transition time):
(i) covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department; and
(ii) applies to the transferring employee's employment in the Department; and
(e) while the designated agreement covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department, no other enterprise agreement, modern award or award-based transitional instrument covers the transferring employee in relation to the transferring employee's employment in the Department; and
(f) the designated agreement has effect after the transition time, in relation to the transferring employee's employment in the Department, as if it had been made by the Secretary on behalf of the Commonwealth; and
(g) if the transferring employee becomes an SES employee after the transition time--paragraphs (d), (e) and (f) cease to apply in relation to the transferring employee; and
(h) if:
(i) an enterprise agreement commences after the transition time; and
(ii) the enterprise agreement was made by the Secretary on behalf of the Commonwealth; and
(iii) apart from paragraphs (d), (e) and (f), the enterprise agreement covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department;
paragraphs (d), (e) and (f) cease to apply in relation to the transferring employee when the enterprise agreement commences.
(3) If:
(a) a person is a transferring employee; and
(b) immediately before the transition time, an individual agreement-based transitional instrument applied to the person's employment in Centrelink;
the individual agreement-based transitional instrument has effect after the transition time, in relation to the transferring employee's employment in the Department, as if it had been made with the Secretary on behalf of the Commonwealth.
(4) If:
(a) a person is a transferring employee (other than an SES employee); and
(b) immediately before the transition time, an individual agreement-based transitional instrument applied to the person's employment in Centrelink; and
(c) at a time (the cessation time ) during the period:
(i) beginning at the transition time; and
(ii) ending immediately before the commencement of an enterprise agreement made after the transition time by the Secretary on behalf of the Commonwealth, where (apart from the individual agreement-based transitional instrument) the enterprise agreement covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department;
the individual agreement-based transitional instrument ceases to cover the person's employment; and
(d) a designated agreement covers the Commonwealth because of subitem (2); and
(e) the Secretary, by written notice given to the transferring employee before or within 14 days after the cessation time, determines that the designated agreement is applicable to the transferring employee for the purposes of this subitem from the cessation time;
then:
(f) the designated agreement (as in force immediately before the transition time):
(i) covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department; and
(ii) applies to the transferring employee's employment in the Department; and
(g) while the designated agreement covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department, no other enterprise agreement, modern award or award-based transitional instrument covers the transferring employee in relation to the transferring employee's employment in the Department; and
(h) the designated agreement has effect after the cessation time, in relation to the transferring employee's employment in the Department, as if it had been made by the Secretary on behalf of the Commonwealth; and
(i) if the transferring employee becomes an SES employee after the cessation time--paragraphs (f), (g) and (h) cease to apply in relation to the transferring employee; and
(j) if:
(i) an enterprise agreement commences after the transition time; and
(ii) the enterprise agreement was made by the Secretary on behalf of the Commonwealth; and
(iii) apart from paragraphs (f), (g) and (h), the enterprise agreement covers the Commonwealth and the transferring employee in relation to the transferring employee's employment in the Department;
paragraphs (f), (g) and (h) cease to apply in relation to the transferring employee when the enterprise agreement commences.
(5) If:
(a) a person is a transferring employee; and
(b) immediately before the transition time, a determination under subsection 24(1) of the Public Service Act 1999 applied to the person's employment in Centrelink;
then:
(c) the determination (to the extent to which it relates to the transferring employee) has effect after the transition time, in relation to the transferring employee's employment in the Department, as if:
(i) the determination had been made by the Secretary; and
(ii) the determination were applicable to the person's employment in the Department; and
(d) paragraph (c) does not prevent the variation or revocation of the determination.
New employees
(6) For the purposes of this item, a person is a new employee if:
(a) the person is an APS employee (other than an SES employee) in the Department; and
(b) the person is not a transferring employee.
(7) If:
(a) a designated agreement covers the Commonwealth because of subitem (2); and
(b) after the transition time, a person becomes a new employee; and
(c) the Secretary, by written notice given to the new employee before or within 14 days after the person becomes a new employee, determines that the designated agreement is applicable to the new employee for the purposes of this subitem from the time when the person becomes a new employee;
then:
(d) the designated agreement (as in force immediately before the transition time):
(i) covers the Commonwealth and the new employee in relation to the new employee's employment in the Department; and
(ii) applies to the new employee's employment in the Department; and
(e) while the designated agreement covers the Commonwealth and the new employee in relation to the new employee's employment in the Department, no other enterprise agreement, modern award or award-based transitional instrument covers the new employee in relation to the new employee's employment in the Department; and
(f) the designated agreement has effect after the transition time, in relation to the new employee's employment in the Department, as if it had been made by the Secretary on behalf of the Commonwealth; and
(g) if the new employee becomes an SES employee after the transition time--paragraphs (d), (e) and (f) cease to apply in relation to the new employee; and
(h) if:
(i) an enterprise agreement commences after the transition time; and
(ii) the enterprise agreement was made by the Secretary on behalf of the Commonwealth; and
(iii) apart from paragraphs (d), (e) and (f), the enterprise agreement covers the Commonwealth and the new employee in relation to the new employee's employment in the Department;
paragraphs (d), (e) and (f) cease to apply in relation to the new employee when the enterprise agreement commences.
Section 58 of the Fair Work Act 2009
(8) Paragraphs (2)(h), (4)(j) and (7)(h) have effect subject to section 58 of the Fair Work Act 2009 .
Delegation
(9) The Secretary may, in writing, delegate the powers conferred by paragraphs (4)(e) and (7)(c) to an SES employee in the Department.
Legislative instrument
(10) A determination made under paragraph (4)(e) or (7)(c) is not a legislative instrument.
Definitions
(11) In this item:
award-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
collective agreement-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
commence , in relation to an enterprise agreement, means begin to operate.
designated agreement means:
(a) the Centrelink Agreement 2009-2011 ; or
(b) a collective agreement-based transitional instrument.
enterprise agreement has the same meaning as in the Fair Work Act 2009 .
individual agreement-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 .
modern award has the same meaning as in the Fair Work Act 2009 .
68 This Division prevails over Divisions 2 and 3
Divisions 2 and 3 have no effect to the extent (if any) to which they are inconsistent with this Division.
69 Transitional--transfer of appropriated money
(1) For the purposes of the operation of an Appropriation Act after the transition time, references to Centrelink are to be read as references to the Department.
(2) In this item:
Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund in relation to:
(a) the financial year beginning on 1 July 2010; or
(b) an earlier financial year.
70 Transitional--responsibility for Commonwealth resources
Scope
(1) This item applies to Commonwealth resources if, immediately before the transition time, the Chief Executive Officer was responsible for the resources under the Financial Management and Accountability Act 1997 .
Responsibility
(2) At the transition time, the Secretary assumes responsibility, under the Financial Management and Accountability Act 1997 , for the Commonwealth resources.
71 Transitional--final annual report
(1) Despite the amendments of section 40 of the Commonwealth Services Delivery Agency Act 1997 made by this Schedule, that section continues to apply, in relation to the report for the financial year beginning on 1 July 2010, as if those amendments had not been made.
(2) However, the obligation to prepare the report and give it to the Minister is imposed on the Secretary instead of the Chief Executive Officer.
72 Transitional--other reporting requirements
Scope
(1) This item applies if, assuming that this Schedule had not been enacted:
(a) the Chief Executive Officer would, after the transition time, be obliged under a law of the Commonwealth to:
(i) prepare a report in relation to Centrelink; and
(ii) give the report to another person; and
(b) the report would relate to:
(i) the financial year beginning 1 July 2010; or
(ii) a period that ends on or before 30 June 2011.
Obligation
(2) Despite the amendments made by this Schedule, the obligation to prepare the report, and give it to the other person, continues to apply.
(3) However, the obligation is imposed on the Secretary instead of the Chief Executive Officer.
73 Transitional--transfer of records to the Department
Scope
(1) This item applies to any records or documents that were in possession of the Chief Executive Officer or Centrelink immediately before the transition time.
Transfer
(2) The records and documents are, by force of this subitem, transferred to the Department at the transition time.
74 Transitional--subsections 8(10) to (14) of the Human Services (Centrelink) Act 1997
(1) Without limiting their effect apart from this subitem, subsections 8(10) to (14) of the Human Services (Centrelink) Act 1997 as amended by this Schedule also have effect as provided by subitem (2).
(2) Subsections 8(10) to (14) of the Human Services (Centrelink) Act 1997 as amended by this Schedule also have the effect they would have if the reference in subsection 8(10) of the Human Services (Centrelink) Act 1997 as amended by this Schedule to a function prescribed by regulations made for the purposes of paragraph 8(1)(ba) of that Act were a reference to a function that the Chief Executive Officer was, before the transition time, directed to perform under paragraph 8(1)(c) of the Commonwealth Services Delivery Act 1997 .
75 Transitional--regulations setting out protected symbol
Scope
(1) This item applies to regulations that:
(a) were made for the purposes of the definition of protected symbol in subsection 38(4) of the Commonwealth Services Delivery Agency Act 1997 ; and
(b) were in force immediately before the transition time.
Effect after transition time
(2) The regulations have effect, after the transition time, as if they had been made for the purposes of subparagraph (a)(ii) of the definition of protected symbol in subsection 38(4) of the Human Services (Centrelink) Act 1997 as amended by this Schedule.