Commonwealth Numbered Acts

Australian National Airlines Amendment Act 1984 No. 68 of 1984 - SECT 18

18. (1) Sections 31, 31A and 32 of the Principal Act are repealed and the
following sections are substituted: Borrowing from Commonwealth

''31. The Minister for Finance may, on behalf of the Commonwealth, out of
moneys appropriated by the Parliament for the purpose, lend money to the
Commission on such terms and conditions as the Minister for Finance, by
instrument in writing, determines. Borrowings otherwise than from Commonwealth

''32. (1) The Commission may, with the approval of the Treasurer-

   (a)  borrow money otherwise than from the Commonwealth; or

   (b)  raise money otherwise than by borrowing, on such terms and conditions
        as are specified in the approval.

''(2) Without limiting the generality of sub-section (1), the Commission may,
under that sub-section, borrow money, or raise money otherwise than by
borrowing, by dealing with securities.

''(3) A borrowing of money, or a raising of money otherwise than by borrowing,
under sub-section (1) may be made, in whole or in part, in a currency other
than Australian currency.

''(4) An approval may be given under sub-section (1) in relation to a
particular transaction or in relation to transactions included in a class of
transactions.

''(5) An approval under sub-section (1) shall be given by instrument in
writing.

''(6) For the purposes of this section-

   (a)  the issue by the Commission of an instrument acknowledging a debt in
        consideration of-

        (i)    the payment or deposit of money; or

        (ii)   the provision of credit,

otherwise than in relation to a transaction that is in the ordinary course of
the day to day operations of the Commission shall be deemed to be a raising by
the Commission, otherwise than by borrowing, of an amount of money equal to
the amount of the money paid or deposited or the value of the credit provided,
as the case may be; and

   (b)  the obtaining of credit by the Commission otherwise than in relation
        to a transaction that is in the ordinary course of the day to day
        operations of the Commission shall be deemed to be a raising by the
        Commission, otherwise than by borrowing, of an amount of money equal
        to the value of the credit so obtained. Guarantees

''32A. (1) The Treasurer may, on behalf of the Commonwealth, enter into a
contract-

   (a)  guaranteeing the repayment by the Commission of money borrowed under
        paragraph 32 (1) (a) and the payment by the Commission of interest
        (including any interest on that interest) on money so borrowed; or

   (b)  guaranteeing the payment by the Commission of such amounts (including
        any interest) that the Commission is liable to pay with respect to
        money raised under paragraph 32 (1) (b) as are specified in the
        contract.

''(2) The Treasurer may, by instrument in writing, determine-

   (a)  that the repayment by the Commission of money borrowed under paragraph
        32 (1) (a), and the payment by the Commission of interest (including
        any interest on that interest) on money so borrowed, are guaranteed by
        the Commonwealth; or

   (b)  that the payment by the Commission of such money (including any
        interest) that the Commission is liable to pay with respect to money
        raised under paragraph 32 (1) (b) as is specified in the determination
        is guaranteed by the Commonwealth, and, where the Treasurer makes such
        a determination, the repayment of that money and the payment of that
        interest are, or the payment of that money is, by the force of this
        sub-section, guaranteed by the Commonwealth.

''(3) A contract may be entered into under sub-section (1), and a
determination may be made under sub-section (2), in relation to a particular
transaction or in relation to transactions included in a class of
transactions.

''(4) A contract entered into under sub-section (1) may include-

   (a)  a provision agreeing, on behalf of the Commonwealth, that proceedings
        under the contract may be taken in the courts, or a specified court,
        of a country other than Australia; or

   (b)  a provision waiving, on behalf of the Commonwealth, the immunity of
        the Commonwealth from suit in the courts, or a specified court, of a
        country other than Australia in relation to any proceedings that may
        be taken under the contract. Commission may give security

''32B. The Commission may give security over the whole or any part of its
assets for-

   (a)  the repayment by the Commission of money borrowed by the Commission
        under section 31 or paragraph 32 (1) (a) and the payment by the
        Commission of interest (including any interest on that interest) on
        money so borrowed;

   (b)  the payment by the Commission of amounts (including any interest) that
        the Commission is liable to pay with respect to money raised by the
        Commission under paragraph 32 (1) (b); or

   (c)  the payment to the Commonwealth of amounts equal to any amounts that
        the Commonwealth may become liable to pay under a contract entered
        into under sub-section 32A (1) or a determination made under
        sub-section 32A (2). Borrowings not otherwise permitted

''32C. The Commission shall not borrow money, or raise money otherwise than by
borrowing, except in accordance with sections 31 and 32. Guarantee of
borrowings by subsidiary of Commission

''32D. (1) This section applies to a borrowing by a body corporate (in this
section referred to as a 'relevant subsidiary'), being a body corporate that-

   (a)  is a wholly-owned subsidiary of the Commission; and

   (b)  owns or operates, or is to own or operate, aircraft, of money, whether
        in Australian currency or in a currency other than Australian
        currency, that has been or is to be expended in connection with the
        purchase by that relevant subsidiary of aircraft, being aircraft
        having a capacity of at least 90 passengers, or of spare parts or
        equipment for aircraft of that kind.

''(2) Subject to this section, the Treasurer may, on behalf of the
Commonwealth, at the request of a relevant subsidiary, enter into a contract
guaranteeing that the relevant subsidiary will fulfil its obligations arising
out of a borrowing to which this section applies to repay so much of the money
borrowed, and to pay so much of the interest (including any interest on that
interest) on that money, as are specified in the contract.

''(3) For the purposes of the protection of the financial interests of the
Commonwealth, the Treasurer shall not enter into a contract under sub-section
(2) in respect of a borrowing by a relevant subsidiary unless-

   (a)  the Treasurer is satisfied that the terms and conditions of the
        borrowing are reasonable;

   (b)  where the borrowing consists of, or includes, the issue of
        instruments-the issue of those instruments, and the form of those
        instruments, have been approved by the Treasurer;

   (c)  appropriate security to the satisfaction of the Treasurer is, or is to
        be, given to the Commonwealth over the goods to which the borrowing
        relates;

   (d)  undertakings to the satisfaction of the Treasurer are given by that
        relevant subsidiary that the goods over which security is, or is to
        be, taken in accordance with paragraph (c)-

        (i)    will be insured and kept insured to their full insurable value
               against all risks against which it is customary to insure;

        (ii)   will not be sold or made the subject of a mortgage or charge
               having priority over the security given to the Commonwealth in
               respect of the contract of guarantee; and

        (iii)  will not be taken out of Australia for a destination that is
               not in Australia except after the giving of such security as
               the Treasurer requires;

   (e)  undertakings to the satisfaction of the Treasurer are given by that
        relevant subsidiary that, so long as the whole or any part of the
        amounts borrowed, or of any interest on those amounts, remains unpaid-

        (i)    officers of the Australian Public Service will have full access
               at all reasonable times to the financial accounts of that
               relevant subsidiary when authorized in writing by the Minister
               for that purpose; and

        (ii)   that relevant subsidiary will do everything within its power to
               ensure that the officers so authorized have similar access to
               the financial accounts of any body, whether corporate or
               unincorporate, in which that relevant subsidiary has, at any
               time, whether directly or indirectly, a controlling interest;

   (f)  undertakings to the satisfaction of the Treasurer are given by that
        relevant subsidiary that any legal costs incurred by the Commonwealth
        in connection with the contract of guarantee will be met by that
        relevant subsidiary; and

   (g)  such other conditions as the Treasurer thinks necessary are fulfilled.

''(4) Where the Treasurer enters into a contract under sub-section (2) in
respect of a borrowing, the Treasurer shall cause to be laid before each House
of the Parliament, within 15 sitting days of that House after the contract is
entered into, a notice specifying the amount and term of the borrowing and
such other information relating to the borrowing or the guarantee as the
Treasurer considers appropriate.

''(5) For the purposes of this section-

   (a)  the issue by a relevant subsidiary of instruments acknowledging a debt
        in consideration of the payment or deposit of money, or the provision
        of credit; or

   (b)  the obtaining of credit by a relevant subsidiary, shall, to the extent
        of the amount of that money or of that credit, as the case may be, be
        deemed to be a borrowing by that relevant subsidiary.

''(6) A contract entered into under sub-section (2) may include-

   (a)  a provision agreeing, on behalf of the Commonwealth, that proceedings
        under the contract may be taken in the courts, or a specified court,
        of a country other than Australia; or

   (b)  a provision waiving, on behalf of the Commonwealth, the immunity of
        the Commonwealth from suit in the courts, or a specified court, of a
        country other than Australia in relation to any proceedings that may
        be taken under the contract.

''(7) For the purposes of sub-section (1), a body corporate is a wholly-owned
subsidiary of the Commission if that body corporate is a subsidiary of the
Commission and none of the members of that body corporate is a person other
than-

   (a)  the Commission;

   (b)  a nominee of the Commission;

   (c)  a subsidiary of the Commission, being a subsidiary none of the members
        of which is a person other than the Commission or a nominee of the
        Commission; or

   (d)  a nominee of a subsidiary referred to in paragraph (c).

''(8) For the purposes of sub-section (7), the question whether a body
corporate is a subsidiary of the Commission shall be determined in the same
manner as the question whether a corporation is a subsidiary of another
corporation is determined under the Companies Act 1981.

''(9) The Treasurer may, either generally or as otherwise provided by the
instrument of delegation, by writing signed by him, delegate to an officer of
the Department of the Treasury any of his powers under this section, other
than this power of delegation.

''(10) A power so delegated, when exercised by the delegate, shall, for the
purposes of this section, be deemed to have been exercised by the Treasurer.

''(11) A delegate is, in the exercise of a power so delegated, subject to the
directions of the Treasurer.

''(12) A delegation under sub-section (9) does not prevent the exercise of a
power by the Treasurer. Superannuation

''32E. (1) In this section, 'eligible employee' means an employee of the
Commission who is an eligible employee for the purposes of the Superannuation 
Act 1976 .

''(2) The Commission shall, before the expiration of 4 weeks after the
commencement of this section and subsequently at intervals of not more than 4
weeks, pay to trustees approved by the Minister for Finance amounts
representing provision for superannuation for employees of the Commission
other than eligible employees.

''(3) The Commission shall, before the expiration of 2 weeks after the
commencement of this section and subsequently at intervals of not more than 2
weeks, pay to the Commonwealth, in respect of each eligible employee, an
amount calculated in accordance with the formula

A B
---- ,
C where-
A is the amount of the salary for superannuation purposes of the eligible
employee;

B is the amount paid by the Commission to trustees under sub-section (2) in
respect of an employee of the Commission (not being an eligible employee) who
is a member of the ground staff of the Commission; and

C is so much of the amount of the salary of that member of the ground staff as
is taken into account for the purpose of determining the amount to be paid by
the Commission to trustees under sub-section (2) in respect of that member of
the ground staff.

''(4) Section 159 of the Superannuation Act 1976 and section 145 of the
Superannuation Act 1922 do not apply in relation to the Commission. Financial
policy

''32F. (1) The Commission shall, not later than 30 days before the
commencement of each financial year-

   (a)  determine, in writing, that the financial target of the Commission for
        the financial year is-

        (i)    a specified profit;

        (ii)   neither a profit nor a loss; or

        (iii)  a specified loss; and

   (b)  inform the Minister, by notice in writing, of-

        (i)    the financial target that it has determined for the financial
               year; and

        (ii)   the amount estimated by the Commission to be the net worth of
               the Commission as at the end of the financial year.

''(2) In making a determination under sub-section (1), the Commission shall
have regard to-

   (a)  the need to ensure that the Commonwealth receives a reasonable return
        on the capital of the Commission from the operations of the
        Commission, being a return on capital of similar proportions to the
        return that could be expected to be received by a shareholder in a
        privately-owned air transport undertaking in Australia having a
        similar capital structure to that of the Commission;

   (b)  the need to maintain, in real terms, the net worth of the Commission;

   (c)  the need to increase the reserves of the Commission to enable
        expansion of the Commission's operations; and

   (d)  such other commercial considerations as the Commission thinks fit.

''(3) The Minister may, before the expiration of 30 days after the receipt by
him of a notice of a determination made by the Commission under sub-section
(1) in relation to a financial year-

   (a)  determine, in writing, a different financial target for the financial
        year; and

   (b)  inform the Commission, by notice in writing, of the financial target
        that he has determined for the financial year and the reasons for his
        determination.

''(4) In performing his functions under sub-section (3), the Minister shall
have regard to-

   (a)  the matters specified in paragraphs (2) (a), (b) and (c); and

   (b)  such other commercial considerations as the Minister thinks fit.

''(5) Where the Minister gives a notice to the Commission under sub-section
(3), the Minister shall cause a copy of that notice and a statement of the
reasons for the decision to give that notice to be laid before each House of
the Parliament within 15 sitting days of that House after the giving of the
notice to the Commission.

''(6) As soon as practicable after the financial target for a financial year
is finalized, the Commission shall-

   (a)  having regard to the policy that the Commission is required by
        sub-section (7) to pursue in that financial year, prepare estimates,
        in such form as the Minister directs, of its revenue and expenditure
        for that financial year; and

   (b)  submit those estimates to the Minister.

''(7) The Commission shall pursue a policy in each financial year directed
towards ensuring that the Commission will attain, from its operations in that
financial year-

   (a)  except in a case to which paragraph (b) applies-the financial target
        specified by the Commission in the notice given to the Minister under
        sub-section (1) in relation to that financial year; or

   (b)  if the Minister has given a notice to the Commission under sub-section
        (3) in relation to that financial year-the financial target specified
        by the Minister in that notice.

''(8) The Commission shall, in accordance with sub-section (9), review the
financial results of its operations during the current financial year and if,
upon any such review, the Commission finds that the revenue and expenditure of
the Commission during the preceding part of the financial year have not been
as favourable to the profitable conduct of the business of the Commission as
those specified in the estimates submitted to the Minister, the Commission
shall forthwith consider what specific measures can be taken for the purpose
of enabling the business of the Commission to be conducted more profitably
during the remainder of that financial year and shall inform the Minister of
the measures it proposes to adopt for that purpose and the effect that it
considers the adoption of those measures will have on the financial results of
its operations.

''(9) A review under sub-section (8) shall be made whenever the Minister so
directs or the Commission considers that circumstances so require, but so that
not more than 6 months elapses in a financial year between-

   (a)  the commencement of that financial year and the commencement of the
        first review under sub-section (8) in that financial year; or

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

''(10) For the purposes of this section, a reference to the net worth of the
Commission shall be read as a reference to the sum of-

   (a)  the capital of the Commission;

   (b)  the reserves of the Commission; and

   (c)  any retained profits of the Commission. Payments of dividends to the
        Commonwealth

''32G. (1) The Commission shall, before the expiration of 4 months after the
end of each financial year, by notice in writing given to the Minister,
recommend-

   (a)  that the Commission pay to the Commonwealth, in relation to the
        operations of the Commission in that financial year, a dividend of an
        amount specified in the notice; or

   (b)  that the Commission not pay a dividend to the Commonwealth for the
        financial year.

''(2) In making a recommendation under sub-section (1), the Commission shall
have regard to-

   (a)  the matters specified in paragraphs 32F (2) (a), (b) and (c); and

   (b)  such other commercial considerations as the Commission thinks fit.

''(3) The Minister shall, before the expiration of 30 days after the receipt
by him of a recommendation made by the Commission under sub-section (1) in
relation to a financial year, give notice in writing to the Commission-

   (a)  where the recommendation is that the Commission pay a dividend to the
        Commonwealth for the financial year-

        (i)    approve the recommendation; or

        (ii)   direct the Commission to pay a dividend of a different
               specified amount to the Commonwealth for the financial year; or

   (b)  where the recommendation is that the Commission not pay a dividend to
        the Commonwealth for the financial year-

        (i)    approve the recommendation; or

        (ii)   direct the Commission to pay a dividend of a specified amount
               to the Commonwealth for the financial year.

''(4) In performing his functions under sub-section (3), the Minister shall
have regard to-

   (a)  the matters specified in paragraphs 32F (2) (a), (b) and (c); and

   (b)  such other commercial considerations as the Minister thinks fit.

''(5) Where the Minister gives a notice to the Commission under sub-paragraph
(3) (a) (ii) or (b) (ii), the Minister shall cause a copy of that notice and a
statement of the reasons for the decision to give that notice to be laid
before each House of the Parliament within 15 sitting days of that House after
the giving of the notice to the Commission.

''(6) The Commission shall, before the expiration of 8 months after the end of
each financial year, or within such further time as the Minister allows, pay
to the Commonwealth-

   (a)  except in a case to which paragraph (b) applies-the amount of the
        dividend specified in the notice given by the Commission under
        sub-section (1) in relation to that financial year; or

   (b)  if the Minister has given a notice to the Commission under
        sub-paragraph (3) (a) (ii) or (b) (ii) in relation to that financial
        year-the amount of the dividend specified in that notice.

''(7) A payment by the Commission to the Commonwealth under this section may
be made-

   (a)  out of the profits of the Commission for the financial year to which
        the payment relates;

   (b)  out of the profits of the Commission for any preceding financial year;
        or

   (c)  partly out of the profits of the Commission for the financial year
        referred to in paragraph (a) and partly out of the profits of the
        Commission for any preceding financial year. Commission to prepare,
        &c., long-term reports

''32H. The Commission shall, before the expiration of 60 days after the
commencement of each financial year, prepare and give to the Minister a report
setting out the Commission's financial and operational targets, strategies and
policies for the 3 years commencing at the commencement of that financial
year.''.

(2) Section 32G of the Principal Act as amended by this Act applies in
relation to the payment of dividends by the Commission in relation to the
operations of the Commission in respect of the financial year that commenced
on 1 July 1983 and to subsequent financial years.

(3) Sections 32F and 32H of the Principal Act as amended by this Act apply in
relation to the financial year commencing on 1 July 1984 and to subsequent
financial years.

(4) Section 32F of the Principal Act as amended by this Act applies in
relation to the financial year commencing on 1 July 1984 as if ''not later
than 30 days before the commencement of each financial year'' were omitted
from sub-section 32F (1) of that Act as so amended and ''not later than 1
August 1984'' were substituted.

(5) Section 32H of the Principal Act as amended by this Act applies in
relation to the financial year commencing on 1 July 1984 as if the reference
in that section to 60 days were a reference to 90 days.

(6) An approval given by the Minister for Finance under section 31A of the
Principal Act continues to have effect after the commencement of this Act as
if it had been given under section 32E of the Principal Act as amended by this
Act.

(7) It is declared that the power of the Australian National Airlines
Commission under the Australian National Airlines Act 1945 to borrow moneys
has always included a power to borrow moneys in a currency other than
Australian currency.