Railways (Tasmania) Act 1975 (Australia)

Railways (Tasmania) Act 1975

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RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975
RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 1. Short title.
RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 An Act relating to the Acquisition by Australia, with the consent of Tasmania, of the Railways of Tasmania and to the Construction and Extension by Australia, with the consent of Tasmania, of Railways in Tasmania, and for purposes connected therewith. BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:- 1. This Act may be cited as the Railways (Tasmania) Act 1975.* RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 2. Commencement.
2. (1) Subject to sub-section (2), this Act shall come into operation on 1 July 1975. (2) This Act shall not come into operation unless an Act of the Parliament of Tasmania approving the Agreement has come into force on or before 1 July 1975. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 3. Interpretation.
3. (1) In this Act, unless the contrary intention appears- ''Agreement'' means the agreement a copy of which is set out in the Schedule; ''proceeding'' includes any action; ''property'' includes cash, rights and interests of any kind (including contractual rights) and things in action. (2) Expressions used in this Act that are defined by clause 1 of the Agreement have the same respective meanings as those expressions have in the Agreement. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 4. Approval of Agreement.
4. The Agreement is approved. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 5. Vesting of property.
5. Any land and other property to which the Australian Commission is entitled on the commencement date under clause 4 of the Agreement shall, by force of this section, vest in the Australian Commission on that date. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 6. Hydro-Electric Commission to exercise powers only in accordance with the Agreement.
6. The Hydro-Electric Commission of Tasmania is not entitled to construct or erect works, or to maintain, repair or use works constructed or erected, on land of the Australian Commission except in accordance with sub-clause (3) of clause 4 of the Agreement. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 7. Transfer of liabilities.
7. (1) Subject to this section, the Australian Commission shall, on and after the declared date, be subject to all liabilities and obligations incurred by Tasmania or the Tasmanian Commission before that date in connexion with the administration, maintenance and operation of the railways and of any services (including passenger and freight road services) that are incidental or supplementary to, or are operated in association with, the railways, to the extent to which those liabilities and obligations are not discharged before that date. (2) The obligations to which the Australian Commission is subject under sub-section (1) in relation to the maintenance and repair of the surface of any roadway do not extend beyond the obligations of the Australian Commission under section 68 of the Australian National Railways Act 1917-1975. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 8. Application of State laws.
8. (1) Where any laws of Tasmania referred to in paragraph (b) of sub-clause (2) of clause 2 of the Agreement, as purporting to have the effect referred to in that paragraph by virtue of legislation of Tasmania enacted in accordance with that paragraph, cannot, by reason of section 52 of the Constitution, have that effect as laws of Tasmania, the provisions of those laws shall have that effect by virtue of, and in accordance with, the Commonwealth Places (Application of Laws) Act 1970-1973. (2) It is the intention of the Parliament that nothing contained in a law of Australia shall prevent any law of Tasmania from having effect, as a law of Tasmania, as referred to in paragraph (b) of sub-clause (2) of clause 2 of the Agreement. (3) Paragraph 4 (2) (a) of the Commonwealth Places (Application of Laws) Act 1970-1973 does not apply in relation to the application of laws of Tasmania in accordance with sub-section (1) of this section. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 9. Pending proceedings.

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9. (1) A proceeding shall not be instituted during the interim period by or against the Australian Commission in respect of land or other property that vests in the Australian Commission by this Act if, by virtue of a law of Tasmania, the proceeding may be instituted by or against Tasmania or the Tasmanian Commission but, if any proceeding instituted before or during the interim period by or against Tasmania or the Tasmanian Commission in respect of such land or other property is not completed before the declared date, the court in which the proceeding was or is instituted shall, on or after that date, substitute the Australian Commission for Tasmania or the Tasmanian Commission as the plaintiff or defendant, as the case may be, in the proceeding. (2) Where a proceeding in respect of a liability or obligation to which the Australian Commission is made subject by this Act was or is instituted against the Tasmanian Commission before or during the interim period but was not or is not completed before the declared date, the court in which the proceeding was or is instituted shall, on or after that date, substitute the Australian Commission for the Tasmanian Commission as the defendant in the proceeding. (3) In this section, a reference to the plaintiff or the defendant in relation to a proceeding by way of a cross-proceeding is a reference to the plaintiff or the defendant, as the case may be, in the cross- proceeding. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 10. Commission authorized to operate railways in Tasmania.
10. On and after the declared date, the Australian Commission may- (a) administer, maintain and operate in Tasmania the railways and services acquired under the Agreement; and (b) construct and extend railways in Tasmania in accordance with the Agreement and administer, maintain and operate railways so constructed or extended and services (including passenger and freight road services) incidental or supplementary to, or associated with, those railways. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 11. Transfer of employees.
11. The Australian Commission shall, not later than the declared date, in pursuance of section 46 of the Australian National Railways Act 1917-1975, appoint as officers or engage as employees, with effect from that date, the persons who are, by clause 12 of the Agreement, to be transferred to the employment of the Australian Commission on that date. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 12. Certificates.
12. (1) A certificate in writing signed by- (a) the Minister or his delegate; and (b) the State Minister or his delegate, stating that the right, title and interest of Tasmania or of the Tasmanian Commission in land referred to in the certificate vested in the Commission on the commencement date is admissible in evidence in any proceeding and is conclusive evidence of the matters stated in the certificate. (2) A certificate in writing signed by- (a) the Minister or his delegate; and (b) the State Minister or his delegate, in relation to any other matters arising under this Act or the Agreement is admissible in evidence in any proceeding and is prima facie evidence of the matters stated in the certificate. (3) A reference in this section to a delegate of the Minister or of the State Minister is a reference to a person appointed by the Minister or by the State Minister as the case may be, as the delegate of the Minister or of the State Minister for the purposes of the Agreement. (4) A document purporting to be a certificate given under this section shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 13. Australia and Commission to carry out Agreement.
13. Australia and the Australian Commission shall perform and observe any provisions of the Agreement that are required to be performed or observed by Australia and the Australian Commission, respectively. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 14. Agreement not affected by other Acts.
14. The Agreement has effect notwithstanding anything in any other Act, and nothing in any other Act prevents the carrying out or performance of any of the provisions of the Agreement. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 15. Capital of Commission.
15. Section 55 of the Australian National Railways Act 1917-1975 has effect as if any land and other property that became vested in the Australian Commission by virtue of this Act became so vested under section 16 of that Act.
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RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 16. Appropriation.
16. The Consolidated Revenue Fund is appropriated to the extent necessary for the purpose of the payment to Tasmania of $5,000,000 in accordance with clause 14 of the Agreement. RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - SECT. 17. Regulations.
17. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act or the Agreement. ----------- RAILWAYS (TASMANIA) ACT 1975 No. 70, 1975 - THE SCHEDULE
THE SCHEDULE Section 3 AN AGREEMENT made the 23 day of May One thousand nine hundred and seventy- five between THE COMMONWEALTH OF AUSTRALIA (in this agreement called ''Australia'') of the one part and THE STATE OF TASMANIA (in this agreement called ''the State'') of the other part. WHEREAS:- (a) Provision is made by paragraphs (xxxiii) and (xxxiv) of section 51 of the Commonwealth of Australia Constitution for the Parliament of Australia to make laws with respect to the acquisition, with the consent of a State, of any railways of the State on terms arranged between Australia and the State, and for railway construction and extension in any State with the consent of that State. (b) The railways of the State are vested in and operated by the Transport Commission pursuant to the Transport Act 1938 as amended. (c) Australia and the State desire- (i) that pursuant to paragraph (xxxiii) of section 51 of the Constitution the railways shall be acquired by Australia on the first day of July 1975, with the consent of the State, on the terms contained in this agreement to the intent that on that date the railways shall be vested in the Australian National Railways Commission; (ii) that the Transport Commission shall administer, maintain and operate the railways in accordance with the provisions of this agreement until a date to be declared; and (iii) that the Australian National Railways Commission shall assume full administration, maintenance and control of the railways on the declared date. NOW IT IS HEREBY AGREED as follows:- PART I-PRELIMINARY Interpretation 1. (1) In this agreement, unless the contrary intention appears- ''arbitration'' means arbitration pursuant to clause 20; ''Australian National Railways'' means the railways of the Australian Commission; ''clause'' means a clause of this agreement; ''commencement date'' means the first day of July 1975; ''declared date'' means the date to be declared as provided in clause 13; ''interim period'' means the period beginning on the commencement date and ending on the day immediately preceding the declared date; ''interest'', in relation to land, means- (a) a legal or equitable estate or interest in the land; or (b) a right, power or privilege over, or in connection with, the land; ''land'' includes an interest in land; ''land and other property'', in relation to the railways and services, includes all land, railway lines, bridges, culverts, wharves, buildings, structures, roads, depot and barrack facilities for employees, facilities for storage, servicing and maintenance of rolling stock, signalling, road protection and communication facilities, locomotives, wagons, carriages and other rolling stock and vehicles, including road and shunting vehicles,
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cranes, weighbridges, machinery, plant, equipment, tools and other works, matters and things used, associated, or connected with or appurtenant to the railways or services or necessary for the efficient operation and maintenance thereof; ''party'' means a party to this agreement and ''the parties'' means the two parties to this agreement; ''railways'' means the railways operated by the Tasmanian Commission; ''Schedule'' means the Schedule to this agreement; ''services'' means services (including passenger and freight road services) that are incidental or supplementary to, or are operated in association with, the railways; ''the Australian Railways Act'' means the Australian National Railways Act 1917-1975; ''the Australian Commission'' means the Australian National Railways Commission, being the body corporate established by the Australian Railways Act; ''the Australian Shipping Commission'' means the body corporate established by the Australian Shipping Commission Act 1956-1974; ''the Australian Superannuation Fund'' means the Fund established under the Superannuation Act 1922 as amended, or any fund established by any Act substituted for that Act; ''the Australian Minister'' means the Minister who has for the time being the administration of the Australian Railways Act; ''the Retirement Benefits Fund'' means the Fund established under the Retirement Benefits Act 1970 of the State; ''the State Retirement Benefits Fund Board'' means the Retirement Benefits Fund Board which administers the State Retirement Benefits Fund; ''the State Minister'' means the Minister who has for the time being the administration of the Transport Act; ''the State Superannuation Fund'' means the Fund established under the Superannuation Act 1938 as amended of the State; ''the State Superannuation Board'' means the Superannuation Fund Board, which administers the State Superannuation Fund; ''the Tasmanian Commission'' means the Transport Commission, being the body corporate constituted by the Transport Act; and ''the Transport Act'' means the Transport Act 1938 as amended of the State. (2) Where in this agreement a Minister is referred to, the reference shall be deemed to include any other Minister of the Australian Government or of the State Government, as the case may be, who is for the time being acting for or on behalf of the relevant Minister. (3) Where in this agreement an Act, or an Act as amended, is referred to, the reference shall mean that Act as amended from time to time, or any Act substituted for that Act, and, where appropriate or necessary, shall include all regulations, by-laws and proclamations from time to time made under the Act or the substituted Act, as the case may be. (4) A reference in this agreement to property other than land shall be construed as including a reference to- (a) any interest or right (including a contractual right) or a thing in action in relation to property other than land; and (b) cash in hand and in bank. (5) Headings and marginal notes in this agreement shall not affect its meaning. Approving and implementing legislation 2. (1) This agreement, other than this clause, shall have no force or effect until the Prime Minister of Australia and the Premier of the State have jointly certified that the Parliament of Australia and the Parliament of the State have enacted such legislation as is necessary to enable this agreement to enter into force, whether or not that legislation has come into operation. (2) The parties will take all practicable steps to seek the enactment, as soon as possible, of legislation as follows: (a) legislation by the Parliament of Australia and the Parliament of the State to approve this agreement and to make such provision as shall be necessary or appropriate on the parts of those Parliaments respectively for
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the implementation of this agreement including legislation- (i) vesting in the Australian Commission on the commencement date land and other property to which the Australian Commission is entitled under this agreement; (ii) authorising and requiring Australia, the State and their respective Authorities and Instrumentalities to perform and observe the provisions of this agreement on their part to be performed and observed; (iii) providing to the effect that a joint certificate given by the Australian Minister and the State Minister, or their respective delegates, that the right, title and interest of the State or the Tasmanian Commission in the land referred to in the certificate vested in the Australian Commission under legislation enacted pursuant to this agreement is conclusive evidence that such right, title and interest so vested; (iv) providing to the effect that a joint certificate by the Australian Minister and the State Minister, or their respective delegates, given in relation to any matters not referred to in sub-paragraph (iii) arising under the legislation or this agreement, is admissible in evidence in any action or proceeding and shall be prima facie evidence of the matters stated in the certificate for the purposes of such an action or proceeding; and (v) authorising the making of regulations or by-laws that are necessary or convenient for carrying out or giving effect to this agreement and to the legislation for the implementation of this agreement; (b) legislation by the Parliament of the State to the effect that the laws of the State that, but for this agreement, would have applied at any time during interim period to and in relation to the administration, maintenance and operation of the railways or services have the effect, and shall be deemed to be expressed to have the effect, in relation to the administration, maintenance and operation of those railways or services that they would have if this agreement had not been made; (c) legislation by the Parliament of Australia to the effect that- (i) to the extent that the laws of the State referred to in paragraph (b) of this sub-clause, as purporting to have the effect referred to in that paragraph by virtue of legislation of the State enacted in accordance with that paragraph, cannot, by reason of section 52 of the Constitution, have that effect as laws of the State, the provisions of those laws shall have that effect by virtue of, and in accordance with, the Commonwealth Places (Application of Laws) Act 1970 as amended of the Parliament of Australia; (ii) it is the intention of the Parliament of Australia that nothing contained in a law of Australia shall prevent any law of the State from having effect, as a law of the State, as referred to in paragraph (b) of this sub-clause; and (iii) paragraph (a) of sub-section (2) of section 4 of the Commonwealth Places (Application of Laws) Act 1970 as amended does not apply in relation to the application of laws of the State in accordance with sub-paragraph (i) of this paragraph; (d) legislation by the Parliament of the State discharging the State and the Tasmanian Commission on and after the declared date from all liabilities and obligations incurred in connection with the administration, maintenance and operation of the railways and services before the declared date to the extent that those liabilities and obligations have not been discharged before that date; (e) legislation by the Parliament of Australia making the Australian Commission subject on and after the declared date to all the liabilities and obligations to which paragraph (d) of this sub-clause relates, and requiring the substitution of the Australian Commission for the State or the Tasmanian Commission in any action or proceeding pending at the declared date in respect of such liabilities or obligations; (f) legislation by the Parliament of Australia and the Parliament of the State under which an action or proceeding in respect of land or other property that vests in the Australian Commission pursuant to this agreement shall be instituted or continued during the interim period by or against the State or the Tasmanian Commission as if that land or other property had not so vested, and that after that period any such action or proceeding that is not completed shall be continued by or against the Australian Commission; (g) legislation by the Parliament of the State giving the Australian Commission a general power to administer, maintain and operate in the State
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railways constructed or acquired by Australia or the Australian Commission and any services that are incidental, or supplementary to, or are operated in association with, such railways; (h) legislation by the Parliament of the State giving a general consent to the construction and extension of railways by Australia and the Australian Commission in the State; and (j) legislation by the Parliament of the State referring to the Parliament of Australia the matter of the administration, maintenance and operation in the State of the railways and services vested in the Australian Commission pursuant to this agreement, of any railways constructed or extended in the State by Australia or the Australian Commission and of any services incidental or supplementary to, or associated with, those last mentioned railways. Compliance with agreement 3. Each party, so far as its power extends, will provide for and secure compliance with this agreement in accordance with the legislation by which it is approved and is to be implemented. PART II-TRANSFER AND INTERIM ADMINISTRATION, MAINTENANCE AND OPERATION OF RAILWAYS Assets 4. (1) In consideration of the financial arrangements between the parties contained in this agreement, subject to sub-clauses (2) and (3) of this clause, the Australian Commission shall, on the commencement date, be entitled to the right, title and interest of the Crown in right of the State and of the Tasmanian Commission in all land and other property used or held for use or intended or reserved for the purposes of the railways and services and, in the case of land (not being an interest in land in which an estate in fee simple or a Crown Lease is held by a person other than the Crown or the Tasmanian Commission), without reservation of minerals to the Crown in right of the State and unlimited as to depth; (2) The property to which the Australian Commission is entitled under sub-clause (1) of this clause shall not include- (a) land consisting of- (i) roads within the meaning of the Roads and Jetties Act 1935 as amended of the State; and (ii) roads over which there is, otherwise than as provided in sub-paragraph (i), a public right of way, but not so as to prevent the exercise by the Australian Commission over such roads of any rights, powers or privileges that the Australian Commission has under the Australian Railways Act; (b) land and cottages thereon vested in the Tasmanian Commission which are separated from a line of railway by land which is not vested in the Tasmanian Commission; (c) cottages and the curtilages thereof forming part of other land vested in the Tasmanian Commission which have been sold; and (d) the plant, equipment and materials in the Launceston Precision Tool Annexe building referred to in clause 19. (3) (a) Subject to this sub-clause, the Hydro-Electric Commission of the State may, subject to the duties at the date of this agreement similar to those specified in Section 46 of the Hydro-Electric Commission Act 1944 as amended, in relation to land vested in the Australian Commission pursuant to this agreement, maintain, repair and use works constructed or erected by the Hydro-Electric Commission before the date of this agreement for the purpose of generating, transmitting or distributing electrical energy. (b) Nothing in this sub-clause shall entitle the Hydro-Electric Commission to break up, excavate and open up the surface or substratum of any part of a railway without the consent of the Australian Commission. (c) Subject to the consent of the Australian Commission, the Hydro-Electric Commission may extend existing works or carry out further works on, under, or above a railway for the purpose of generating, transmitting or distributing electrical energy, and if consent is withheld the matter may be referred to arbitration. (d) Any work done by the Hydro-Electric Commission pursuant to this clause shall be executed under the supervision of the Australian Commission and in accordance with all reasonable requests and directions of the Australian Commission. Interim administration, maintenance and operation of railways and services 5. (1) Subject to this agreement the Tasmanian Commission will, during the interim period continue to administer, maintain and operate the railways and
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services, but in so doing will comply with any directions of the Australian Commission, including directions relating to the services to be provided and fares and freight rates to be charged. (2) During the interim period the Tasmanian Commission will not- (a) deal with any land or other property to be vested in the Australian Commission pursuant to this agreement; or (b) acquire additional land or other property for the purpose of the railways or services, except as agent for the Australian Commission and after receiving prior general or specific directions or consent in writing regarding the matter from the Australian Commission. Consultation regarding operation of railways 6. When so requested by the State, the Australian Minister or his delegate will consult with the State on matters regarding the operation of the existing and new railways within the State which the State considers to be of concern to the State. Rates and Charges 7. (1) Subject to the provisions of this clause, the Australian Commission will, if so requested by the State, continue to grant the concessional rates and concessional charges granted by the Tasmanian Commission in respect of the railways at the date of this agreement. (2) The State will, both during and after the interim period, maintain its proportion of any costs existing at the date of this agreement as a contribution to such concessional rates and charges as it contributed to before the date of this agreement. Disputes regarding cessation of services or concessions 8. If after consultation between the Australian Commission and the State there is a dispute regarding cessation of any railway service, or payments to be made for concessions which are granted by the Tasmanian Commission at the date of this agreement and are to be continued by the Australian Commission pursuant to this agreement, the matter shall be determined by arbitration. State representation on the Australian Commission and the Shipping Commission 9. The State shall be entitled to nominate- (a) a representative to be appointed as a part-time Commissioner of the Australian Commission for an initial term of five years, subject to the provisions of the Australian Railways Act; and