An Act relating to the Australian Postal Corporation
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Australian
Postal Corporation Act 1989.
2
Commencement [see
Note 1]
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1)
within the period of 6 months beginning on the day on which it receives the
Royal Assent, it commences on the first day after the end of the period.
3
Interpretation—definitions
In this Act, unless the contrary
intention appears:
ACCC means the Australian Competition and
Consumer Commission.
article means any matter or thing, and
includes, for example:
(a) a letter;
(b) a message or information;
(c) a direction to pay an amount of
money;
(d) an envelope, packet, parcel,
container or wrapper containing any matter or thing (including a letter,
message, information or direction to pay an amount of money); and
(e) a message, information, or
direction to pay an amount of money, that is not in written form.
Australia, when used in a geographical sense,
includes the external Territories to which this Act extends.
Australia Post means the Australian Postal
Corporation.
Board means the Board of Directors of
Australia Post.
borrow includes raise money or credit.
carry, in relation to an article, means:
(a) carry the article from one place
to another by physical means; or
(b) if the article is an unwritten
communication—transmit the article from one place to another by electromagnetic
or other non‑physical means;
and includes:
(c) in the case of the carriage of an
article from one place to another by physical means—collect or receive the
article for carriage and deliver the article after carriage; and
(d) in the case of the transmission of
an unwritten communication from one place to another by electromagnetic or
other non‑physical means—collect or receive the communication (whether in
written or unwritten form) for transmission and deliver the communication
(whether in written or unwritten form) after transmission.
carry by post, in relation to an article, has
the meaning given by section 4.
Chairperson means the Chairperson of the
Board.
community service obligations means
obligations under section 27.
convention means a convention to which Australia
is a party or an agreement or arrangement between Australia and a foreign
country.
Deputy Chairperson means the Deputy
Chairperson of the Board.
director means a director of the Board and
includes the Chairperson, the Deputy Chairperson and the Managing Director.
Federal Court means the Federal Court of
Australia.
letter means any form of written communication
that is directed to a particular person or address, and includes:
(a) any standard postal article;
(b) any envelope, packet, parcel,
container or wrapper containing such a communication; and
(c) any unenclosed written
communication that is directed to a particular person or address.
Managing Director means the Managing Director
of Australia Post.
office, in relation to Australia Post, means
an office (in Australia or outside Australia):
(a) established by Australia Post for
the supply of postal services; or
(b) conducted by an agent of Australia
Post.
ordinary post, in relation to the carrying of
an article, has the meaning given by section 5.
postage, in relation to a postal article,
means the amount payable for the carrying of the article by post (including any
special charge or additional fee payable for special services supplied in
relation to the carrying of the article).
postage stamp includes an imprinted or
printed mark, label or design authorised by Australia Post for the purpose of
paying postage for a postal article.
postal article means an article of a kind
that, under the terms and conditions on which Australia Post supplies postal
services, may be carried by post.
reserved services means the activities that
Australia Post has, because of section 29, the exclusive right to engage
in.
standard postal article means, subject to the
regulations, a postal article that satisfies all of the following criteria:
(a) it does not weigh more than 250
grams;
(b) it is not more than 5mm thick;
(c) its other 2 dimensions form a
rectangle:
(i) 2 of whose sides are
shorter than the other sides; and
(ii) the shorter sides of
which are not more than 122 mm long; and
(iii) the longer sides of
which are not more than 237 mm long; and
(iv) the adjacent sides of
which are in the ratio of 1 to at least 1.414.
subsidiary has the meaning given by section 6.
the letter service means the service supplied
by Australia Post under section 27.
thing includes a living thing.
unwritten communication includes a message,
information, or direction to pay an amount of money, that is not in written
form.
4
Interpretation—meaning of carry by post
For the purposes of this Act, an article
is carried by post if it is carried by or through Australia Post.
5
Interpretation—meaning of carry by ordinary post
For the purposes of this Act, an article
is carried by ordinary post if the article is carried by means of the letter
service in such a way as will not involve the supply of a special service for
which a special charge or additional fee is payable in relation to the carrying
of the article.
6
Interpretation—meaning of subsidiary
For the purposes of this Act, a body
corporate is a subsidiary of another body corporate if, under the Corporations
Act 2001, the first body corporate is a subsidiary of the other body
corporate.
7
Extraterritorial operation of Act
This Act applies both within and outside
Australia.
8
Extension of Act to certain external Territories
This Act extends to the external
Territories (other than Norfolk Island).
9
Extension of Act to adjacent areas
(1) Subject to subsection (2), this Act
applies in relation to the adjacent areas of the States and Territories as if
references to Australia (when used in a geographical sense) included references
to the adjacent areas.
(2) The application of this Act in relation
to the adjacent areas of the States and Territories extends only in relation to
acts, matters and things touching, concerning, arising out of or connected with
the exploration of, or the exploitation of the resources of, the continental
shelf of Australia.
(3) Without limiting subsection (2), the
application of this Act in relation to the adjacent areas of the States and
Territories because of subsection (1) extends in relation to all acts done
by or in relation to, and all matters, circumstances and things affecting, any
person who is in the adjacent area of a State or Territory for a reason
touching, concerning, arising out of or connected with the exploration of, or
the exploitation of the resources of, the continental shelf of Australia.
(4) In this
section:
adjacent area, in relation to a State or
Territory, has the same meaning as in the Petroleum (Submerged Lands) Act
1967.
Territory does not include Norfolk Island.
10 Act
binds the Crown
This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory, of
the Northern Territory and of Norfolk Island.
11 Act
subject to Radiocommunications Act and Telecommunications Act etc.
This Act has effect subject to the Radiocommunications
Act 1992, the Telecommunications Act 1997 and the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
11A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part 2—Australia Post and its
Board
Division 1—Constitution, functions and powers of Australia Post
12 Australia
Post continues in existence
The Australian Postal Corporation
continues in existence.
13 Australia
Post continues to be body corporate etc.
The Australian Postal Corporation:
(a) continues to be a body corporate;
(b) shall have a seal; and
(c) may sue and be sued in its
corporate name.
Note: The Commonwealth
Authorities and Companies Act 1997 applies to Australia Post. That Act
deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment,
and conduct of officers.
14
Functions—the principal function
The principal function of Australia Post
is to supply postal services within Australia and between Australia and places
outside Australia.
15
Functions—subsidiary function
A subsidiary function of Australia Post
is to carry on, outside Australia, any business or activity relating to postal
services.
16
Functions—incidental businesses and activities
(1) The functions of Australia Post include
the carrying on, within or outside Australia, of any business or activity that
is incidental to:
(a) the supplying of postal services
under section 14; or
(b) the carrying on of any business or
activity under section 15.
(2) Without limiting subsection (1), the
functions of Australia Post include the carrying on, within or outside Australia,
of any business or activity that is capable of being conveniently carried on:
(a) by the use of resources that are
not immediately required in carrying out Australia Post’s principal or
subsidiary function; or
(b) in the course of:
(i) supplying postal
services under section 14; or
(ii) carrying on any
business or activity under section 15.
17
General powers
(1) Australia Post has power to do all things
necessary or convenient to be done for, or in connection with, the performance
of its functions.
(2) Subsection (1) is not limited by any
other provision of this or any other Act that confers a power on Australia
Post.
18
Specific postal and postal related powers
Australia Post has power, for or in
connection with the performance of its functions:
(a) to supply packet and parcel
carrying services; and
(b) to supply philatelic and
associated services; and
(c) to supply courier services; and
(d) to supply electronic mail
services; and
(da) to supply:
(i) carriage services
(within the meaning of the Telecommunications Act 1997); and
(ii) content services
(within the meaning of that Act); and
(e) to supply document exchange
services and contract mail management services; and
(ea) to supply mail house services
(which may include, for example, the provision of a mail order service and the
doing of things incidental to the provision of such a service); and
(f) to supply funds transfer
services; and
(g) to supply postal services
(including philatelic and associated services) for Norfolk Island, Christmas
Island, Cocos (Keeling) Islands and foreign countries; and
(h) to supply any services other than
postal services to or on behalf of the Commonwealth, the States and
Territories, foreign countries and other persons; and
(j) to manufacture postage stamps and
other goods for use in connection with postal services.
19
Other powers
(1) Australia Post has, for or in connection
with the performance of its functions, all the powers of a natural person, and
may, for example:
(a) enter into contracts;
(b) acquire, hold and dispose of real
and personal property;
(c) appoint agents and attorneys, and
act as agent for other persons;
(d) form, and participate in the
formation of, companies;
(e) subscribe for and purchase shares
in, and debentures and other securities of, companies;
(f) participate in partnerships,
trusts, unincorporated joint ventures and other arrangements for the sharing of
profits;
(g) issue debentures and grant
floating charges on its property;
(h) make charges and fix terms and
conditions for work done, or services, goods and information supplied, by it;
(j) engage consultants;
(k) accept gifts, grants, bequests and
devises made to it, and act as trustee of money and other property vested in it
on trust;
(m) offer and pay rewards;
(n) deal in futures and other
contracts;
(p) provide consultancy and project
management services; and
(q) do such other things as it is
authorised to do by or under this Act or any other law of the Commonwealth or
any law of a State or Territory.
(2) Australia Post has, in addition to its
other powers, power to do all things necessary or convenient to be done for, or
in connection with, the performance of its obligation under section 26,
and may, for example:
(a) purchase and otherwise acquire
land and buildings that it may require;
(b) sell and otherwise dispose of land
and buildings that it does not require;
(c) develop land and buildings to
enable their more efficient utilisation;
(d) develop and lease land and
buildings not immediately required by it; and
(e) develop land and buildings for the
purpose of sale.
Division 2—Australia Post’s Board and
Managing Director
20 The
Board
There shall be a Board of Directors of
Australia Post.
21 The
Managing Director
There shall be a Managing Director of
Australia Post.
22
Constitution of the Board
The Board consists of:
(a) the Chairperson;
(b) the Deputy Chairperson;
(c) the Managing Director; and
(d) not more than 6 other directors.
23
Role of the Board
It is the role of the Board:
(a) to decide the objectives,
strategies and policies to be followed by Australia Post; and
(b) to ensure that Australia Post
performs its functions in a manner that is proper, efficient and, as far as
practicable, consistent with sound commercial practice.
24
Duties of the Managing Director
(1) The Managing Director shall, under the
Board, manage Australia Post.
(2) All acts and things done in the name of,
or on behalf of, Australia Post by the Managing Director shall be taken to have
been done by Australia Post.
Part 3—Australia Post’s
obligations and reserved services
Division 1—Obligations
25
Obligations generally
Australia Post has the following
obligations:
(a) its commercial obligation under
section 26;
(b) its community service obligations
under section 27;
(c) its general governmental
obligations under section 28.
26
Commercial obligation
Australia Post shall, as far as
practicable, perform its functions in a manner consistent with sound commercial
practice.
27 Community
service obligations
(1) Australia Post shall supply a letter
service.
(2) The principal purpose of the letter
service is, by physical means:
(a) to carry, within Australia,
letters that Australia Post has the exclusive right to carry; and
(b) to carry letters between Australia
and places outside Australia.
(3) Australia Post shall make the letter
service available at a single uniform rate of postage for the carriage within Australia,
by ordinary post, of letters that are standard postal articles.
(4) Australia Post shall ensure:
(a) that, in view of the social
importance of the letter service, the service is reasonably accessible to all
people in Australia on an equitable basis, wherever they reside or carry on
business; and
(b) that the performance standards
(including delivery times) for the letter service reasonably meet the social,
industrial and commercial needs of the Australian community.
(5) In this
section:
Australia includes Christmas Island and Cocos
(Keeling) Islands, but does not include any other external Territory to which
this Act extends.
28
General governmental obligations
Australia Post shall perform its
functions in a way consistent with:
(a) any general policies of the
Commonwealth Government of which the directors are notified under section 28
of the Commonwealth Authorities and Companies Act 1997;
(b) any directions given by the
Minister under section 49; and
(c) Australia’s obligations under any
convention.
28A Australia
Post may return letters received from foreign postal authorities
(1) This section applies to letters and other
postal articles received by Australia Post from a foreign postal authority,
whether they are for delivery within Australia or not.
(2) Subject to subsection (3), if, under
a convention, Australia is permitted to return a letter or postal article,
Australia Post may return the article in accordance with the convention despite
its obligations under this Division.
(3) The Minister may give written directions
to the Board, consistent with the convention, about how the power to return
articles should be exercised (including whether that power should be exercised
in particular circumstances).
(4) The Board must ensure that Australia
Post complies with any directions under subsection (3).
(5) If the Minister gives a direction under subsection (3),
the Minister must cause a copy of the direction to be laid before each House of
the Parliament within 15 sitting days of that House after giving the direction.
Division 1A—Performance standards and audits
28B
Interpretation
In this Division:
performance audit report means a report under
section 28D.
prescribed performance standards has the
meaning given by subsection 28C(1).
28C
Performance standards to be met by Australia Post
(1) The regulations may prescribe performance
standards (the prescribed performance standards) to be met by
Australia Post.
(2) The prescribed performance standards must
relate to:
(a) the frequency, speed or accuracy
of mail delivery; or
(b) the availability or accessibility
of:
(i) post‑boxes or
other mail lodgement points; or
(ii) offices of Australia
Post or other places from which Australia Post products or services may be
purchased.
(3) Without limiting subsection (1), the
prescribed performance standards may relate to methods of determining the level
of mail delivery service for a particular area.
28D
Auditor‑General to report on compliance with prescribed performance
standards
(1) The Auditor‑General must, in
relation to the financial year starting on 1 July 1994 and each later financial year, audit, and report on, the extent to which, during the
financial year, Australia Post met the prescribed performance standards that
were in force.
(2) The audit must be conducted in accordance
with the methodology that the Auditor‑General determines is consistent
with prevailing performance audit methodology, and a statement of the
methodology used in conducting the audit must be included in the report.
(3) The Auditor‑General may request
Australia Post to supply information that the Auditor‑General considers
is reasonably necessary to perform the audit, and Australia Post must comply
with the request.
(4) The Auditor‑General must give the
report to the Minister on or before 1 November in the next financial year.
(5) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after its receipt by the Minister.
28E
Service improvement plans
(1) If, in a performance audit report, the
Auditor‑General reports that Australia Post has not met a prescribed
performance standard, Australia Post must, unless the Minister determines, by
legislative instrument, that it is unnecessary in the circumstances, prepare a
service improvement plan to ensure it meets that prescribed performance
standard as soon as practicable.
(2) The service improvement plan must be
given to the Minister on or before 1 March in the financial year after the
financial year to which the performance audit report relates.
(3) The Minister must cause a copy of the
service improvement plan to be laid before each House of the Parliament within
15 sitting days of that House after its receipt by the Minister.
Division 2—Reserved services
29
Services reserved to Australia Post etc.
(1) Subject to section 30, Australia
Post has the exclusive right to carry letters within Australia, whether the
letters originated within or outside Australia.
(2) The reservation of services to Australia
Post under subsection (1) extends to:
(a) the collection, within Australia,
of letters for delivery within Australia; and
(b) the delivery of letters within Australia.
(3) Australia Post also has the exclusive
right to issue postage stamps within Australia.
30
Exceptions to reserved services
(1) The reserved services do not include any
of the following:
(a) the carriage of a letter weighing
more than 250 grams unless the letter consists of an envelope, packet, parcel,
container or wrapper containing 2 or more separate letters;
(b) the carriage of a letter relating
to goods that is sent and delivered with the goods;
(c) the carriage of a newspaper,
magazine, book, catalogue or leaflet, whether or not directed to a particular
person or address and whether or not enclosed in any sort of cover;
(d) the carriage of a letter otherwise
than for reward;
(e) the carriage of a letter within
Australia for a charge or fee that is at least 4 times the then rate of postage
for the carriage within Australia of a standard postal article by ordinary
post;
(g) the carriage of a letter by the
sender or an officer or employee of the sender;
(ga) the carriage of a letter from an
office of the individual or organisation sending the letter to another office
of that individual or organisation;
(h) the carriage of a letter to or from:
(i) the nearest office of
Australia Post; or
(ii) another office of
Australia Post authorised by it;
(ha) the carriage of a letter to an
office of Australia Post where it is then lodged for delivery under a bulk
interconnection service (within the meaning of section 32A);
(hb) the carriage of a letter to the
provider of an aggregation service, for the purposes of aggregation in order to
use a bulk interconnection service (within the meaning of section 32A);
(j) the carriage of a letter on
behalf of Australia Post under an agreement with it;
(k) the carriage of a letter that,
under the terms and conditions on which Australia Post supplies postal
services, is not a postal article;
(m) the carriage of writs, warrants or
other documents required or permitted to be served, given or sent under the
practice and procedure of any court or tribunal;
(ma) the carriage of a letter, in the
course of a document exchange service:
(i) from one service
centre of the service to another service centre of the service; or
(ii) within a service
centre of the service; or
(iii) from a member of the
service to a service centre of the service (subject to subsection (1C));
or
(iv) from a service centre
of the service to a member of the service (subject to subsections (1C) and
(1D));
(n) the carriage of a letter solely by
any electromagnetic or other non‑physical means;
(p) the carriage of letters by or on
behalf of a foreign country under a convention;
(q) any service that, under the
regulations, is not reserved to Australia Post.
(1A) For the purpose of paragraph (1)(ga):
(a) the reference to an office
of an individual or organisation includes a reference to any place where the
individual or organisation carries on business or conducts operations; and
(b) a place where a business is
conducted under a franchise agreement or arrangement is an office
of the franchisee but is not, merely because that business is conducted there,
an office of the franchisor; and
(c) subject to paragraph (d), the
reference to an organisation is a reference to:
(i) a body corporate; or
(ii) a partnership; or
(iii) a Department of State
of the Commonwealth or of a State; or
(iv) a Department or
administrative unit of the Public Service of a Territory; or
(v) a body, authority,
agency or service, whether incorporated or not, established by the Commonwealth
or a State or Territory, or by or under a law of the Commonwealth or a State or
Territory; or
(vi) any other
unincorporated body; and
(d) if a body, authority, agency or
service covered by subparagraph (c)(v) is also part of a Department or
administrative unit covered by subparagraph (c)(iii) or (iv), the body,
authority, agency or service is taken to be an organisation that is separate
from the organisation constituted by that Department or administrative unit.
(1AA) For the purposes of paragraph (1)(hb),
an aggregation service is a service:
(a) that aggregates letters from
different senders; and
(b) that is offered in order to allow
the senders to use a bulk interconnection service (within the meaning of
section 32A).
(1B) For the purposes of paragraph (1)(ma),
a service centre of a document exchange service is a place
conducted by, or under the control of, the provider of the service where, under
the terms of the service, all persons who, under those terms, are entitled to
use the service may:
(a) deposit documents for carriage by
the service; and
(b) collect documents carried by the
service.
(1C) Carriage of a letter between a service
centre of a document exchange service and a person who is a member of the
service is only covered by subparagraph (1)(ma)(iii) or (iv) if, at the
time of the carriage, all of the following apply:
(a) the person chose to become a
member of the service by applying directly to the provider of the service;
(b) the terms and conditions on which
the service is provided require the person to pay a fee periodically (at least
annually) to remain a member;
(c) the person has a unique identifier
that:
(i) is not a postal
address; and
(ii) does not include a
street name;
for the purposes of sending and
receiving letters carried by the service;
(d) the person is entitled to send and
receive letters carried by the service;
(e) there is a separate receptacle at
a service centre of the service for the lodgment and collection of letters
carried by the service that are sent to the person or sent by the person;
(f) the person is a government
agency, partnership, educational institution, health or community service
provider, charity, religious institution or other person carrying on a business
or other undertaking not of a private or domestic nature.
(1D) Carriage of a letter from a service centre
of a document exchange service to a person who is a member of the service is
not covered by subparagraph (1)(ma)(iv) if the sender has addressed the
letter using only a postal address.
(2) A regulation made for the purposes of paragraph (1)(q)
may not take effect earlier than the day after the last day on which the
regulation may be disallowed under section 48 of the Acts
Interpretation Act 1901.
30A
Enforcement for infringement of reserved services
(1) A person shall not engage in conduct that
involves an infringement of Australia Post’s exclusive right to undertake the
reserved services.
(2) If the Federal Court is satisfied that a
person has contravened subsection (1), the Court may order the person to
pay to the Commonwealth such pecuniary penalty, in respect of each
contravention, as the Court determines to be appropriate.
(3) In determining the pecuniary penalty, the
Court must have regard to all relevant matters, including:
(a) the nature and extent of the
contravention; and
(b) the nature and extent of any loss
or damage suffered as a result of the contravention; and
(c) the circumstances in which the
contravention took place; and
(d) whether the person has previously
been found by the Court in proceedings under this Act to have engaged in any
similar conduct.
(4) The pecuniary penalty payable under subsection (2)
by a body corporate is not to exceed $250,000 for each contravention.
(5) The pecuniary penalty payable under subsection (2)
by a person other than a body corporate is not to exceed $50,000 for each
contravention.
(6) The Minister or the ACCC may institute a
proceeding in the Federal Court for the recovery on behalf of the Commonwealth
of a pecuniary penalty referred to in subsection (2).
(7) A proceeding under subsection (6)
may be commenced within 6 years after the contravention.
(8) For the avoidance of doubt, the remedy in
this section is in addition to that provided in section 31 of this Act.
31
Actions for infringement of reserved services etc.
(1) Where a person has engaged, or is
proposing to engage, in conduct that involves, or would involve, an
infringement of Australia Post’s exclusive right to undertake the reserved
services, Australia Post may apply to the Federal Court for relief.
(2) The relief that may be granted includes
an injunction and, at the option of Australia Post, either damages or an
account of profits.
(3) Where, in the opinion of the Federal
Court, it is desirable to do so, the Court may grant an interim injunction
pending determination of an application under subsection (1).
(4) The power of the Federal Court to grant
an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the
court that the person intends to engage again, or to continue to engage, in
conduct of that kind;
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is imminent
danger of substantial damage to Australia Post if the person engages in conduct
of that kind.
Part 4—Australia Post’s
operations
Division 1—Terms and conditions applying to services
32
Terms and conditions generally
(1) Subject to any express provision of this
or any other Act, the terms and conditions of a service supplied by Australia
Post for a person are:
(a) so far as Australia Post and the
person agree on terms and conditions for the supply of the service—the agreed
terms and conditions; and
(b) so far as Australia Post and the
person do not agree on terms and conditions—the terms and conditions determined
by the Board that are applicable to the supply of the service.
(2) Without limiting subsection (1), the
terms and conditions determined by the Board may make provision with respect
to:
(a) the kinds of articles that may be
carried by post and the means by which different kinds of articles may be
carried; and
(b) the carriage of letters and other
postal articles; and
(c) rates of postage; and
(d) the payment of postage, including
the issue and sale of postage stamps, the pre‑stamping of postal articles
and the use of franking machines; and
(e) the carriage of letters to or from
an office of Australia Post; and
(f) undelivered letters and other
articles (including the forfeiture and destruction of such articles).
(3) The Board shall ensure that copies of a
determination made by it under this section are made available for inspection
and purchase at all offices of Australia Post as soon as practicable after it
is made.
(4) A contravention of subsection (3) in
relation to a determination does not affect the validity of the determination.
(5) This section has effect subject to
section 33 of this Act and to Part VIIA of the Trade Practices Act
1974.
32A
Terms and conditions—bulk interconnection service
(1) This section applies to a service
supplied by Australia Post (a bulk interconnection service) under
which bulk quantities of letters are delivered within Australia at reduced
rates provided that:
(a) they are lodged at an office of
Australia Post specified as mentioned in paragraph (2)(a); and
(b) they have, before being lodged,
been sorted in accordance with the terms and conditions of the service.
(2) The terms and conditions of a bulk
interconnection service must:
(a) specify the offices of Australia
Post at which letters must be lodged for delivery under the service; and
(b) allow letters to be lodged for
delivery under the service at any office so specified; and
(c) provide for the rate reduction
mentioned in subsection (1) to include a component that is Australia
Post’s estimate of the average transport costs per letter avoided by Australia
Post in respect of letters lodged for delivery under the service.
(3) The terms and conditions of a bulk
interconnection service are not required to be limited to the matters mentioned
in this section.
32B
Regulations may provide for inquiries into certain disputes about bulk services
(1) The regulations may provide:
(a) for the ACCC:
(i) to inquire into a
dispute, between Australia Post and a person who is obtaining or who wishes to
obtain a rate reduction for the delivery of bulk quantities of letters by
Australia Post in return for performing functions in relation to the letters
that may be performed by Australia Post, about the terms and conditions on
which a rate reduction is or would be provided to the person (including the
amount of the rate reduction); and
(ii) to make a
recommendation to the Minister about those terms and conditions; and
(b) procedures for persons to notify
the ACCC of a dispute of the kind referred to in paragraph (a); and
(c) for the conduct of inquiries, and
for the making of recommendations, provided for under paragraph (a); and
(d) for the provision of information
by Australia Post to the ACCC in connection with the exercise of powers
conferred on the ACCC under paragraph (a); and
(da) for the ACCC to use for the
purposes described in paragraph (a) information obtained under Part VIIA
of the Trade Practices Act 1974;
(e) for the matters to be taken into
account by the ACCC in exercising powers conferred under paragraph (a);
and
(f) that, despite section 49,
the Minister may, if the Minister thinks fit and after consultation with the
Board, direct Australia Post to act in accordance with a recommendation made by
the ACCC under subparagraph (a)(ii); and
(g) for the matters to be taken into
account by the Minister in deciding whether to give a direction provided for
under paragraph (f); and
(h) for the notification of:
(i) directions given by
the Minister as provided for under paragraph (f); and
(ii) decisions of the
Minister not to give such directions; and
(i) in relation to the operation of
directions given by the Minister as provided for under paragraph (f).
(1A) Regulations made under paragraph (1)(f)
must not authorise the making of directions that are inconsistent with
subsection 32A(2).
(2) The regulations may provide as specified
in subsection (1) in spite of anything in the Trade Practices Act 1974.
32C
Terms and conditions—incoming overseas mail service
(1) This section applies to a service
supplied by Australia Post (an incoming overseas mail service)
under which letters received by Australia Post from a country or place outside Australia
are carried and delivered within Australia.
(2) The terms and conditions of an incoming
overseas mail service must, so far as they relate to charges for the service,
comply with whichever of the following paragraphs applies:
(a) if a convention applies to the
service—the charges must be determined in accordance with the convention;
(b) if paragraph (a) does not
apply—the charges must be the same as those that would apply to the provision
of a like service by Australia Post for the carriage and delivery within Australia
of letters collected within Australia.
(3) The terms and conditions of an incoming
overseas mail service are not required to be limited to the matters mentioned
in this section.
32D
Exemption from Part IIIA of the Trade Practices Act
Part IIIA of the Trade Practices
Act 1974 does not apply in relation to the supply of a service (including a
bulk interconnection service and an incoming overseas mail service) by
Australia Post.
33
Certain postage charges subject to Ministerial review
(1) This section applies to the rate of
postage for the carriage within Australia of standard postal articles by
ordinary post.
(2) Before making a determination under
section 32 fixing or varying rates of postage to which this section
applies, the Board shall give the Minister written notice of the proposed
determination.
(3) The Minister may, within 30 days after
receiving notice of a proposed determination, give the Board written notice
disapproving it.
(4) In
exercising powers under subsection (3), the Minister shall have regard to:
(a) Australia Post’s obligations under
this Act; and
(aa) changes in the Consumer Price
Index as published by the Australian Statistician from time to time; and
(b) any other matters the Minister
considers appropriate.
(5) The Board may make a determination under
section 32 fixing or varying rates of postage to which this section
applies only if 30 days have elapsed since the Minister received notice of it
and the Minister has not, within that period, given the Board a notice
disapproving it.
33A
Postage stamps not to be sold etc. for less than usual retail price
(1) A person authorised by Australia Post to
sell postage stamps must not:
(a) sell a valid Australian stamp for
less than its usual retail price; or
(b) give away a valid Australian stamp
free of charge.
(2) Australia Post must not sell a valid
Australian stamp for less than its usual retail price unless the sale is
pursuant to an agreement between Australia Post and another person under which
the person buys the stamp for the purpose of re‑selling it at its usual
retail price.
(3) If a person has engaged, or is proposing
to engage, in conduct that involves, or would involve, an infringement of subsection (1),
Australia Post may apply to the Federal Court for relief.
(4) The relief that may be granted includes
an injunction and, at the option of Australia Post, either damages or an
account of profits.
(5) The Federal Court may grant an interim
injunction pending determination of an application under subsection (3)
if, in the Court’s opinion, it is desirable to do so.
(6) The power
of the Federal Court to grant an injunction restraining a person from engaging
in conduct may be exercised:
(a) whether or not it appears to the
Court that the person intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has
previously engaged in conduct of that kind; and
(c) whether or not there is imminent
danger of substantial damage to Australia Post if the person engages in conduct
of that kind.
(6A) The following conduct is authorised for the
purposes of subsection 51(1) of the Trade Practices Act 1974:
(a) making and carrying out an
agreement described in subsection (2) of this section;
(b) applying to the Federal Court
under subsection (3) of this section.
(7) For the purposes of the application of
this section to a postage stamp that consists of an imprinted or printed mark
(for example a mark produced by a franking machine):
(a) the mark is taken to be issued
within Australia by Australia Post if Australia Post has authorised the use of
the mark for the purpose of paying postage for postal articles; and
(b) the mark is sold if a charge is
made for the imprinting or printing of the mark onto the cover, or onto a label
to be fixed to the cover, of a postal article; and
(c) the usual retail price of the mark
is the amount Australia Post usually charges for the imprinting or printing of
the mark.
(8) In this section:
Australia Post does not include an agent of
Australia Post.
valid Australian stamp
means:
(a) a postage stamp issued within Australia
by Australia Post that is still valid; or
(b) an envelope, or other postal
stationery, issued within Australia by Australia Post on which a postage stamp
that is still valid is imprinted.
34
Immunity from certain actions
(1) An action or proceeding does not lie
against Australia Post or any other person in relation to any loss or damage
suffered, or that may be suffered, by a person because of any act or omission
(whether negligent or otherwise) by or on behalf of Australia Post in relation
to the carriage of a letter or other article by means of the letter service.
(2) Subsection (1) does not apply if
Australia Post provides the sender with a receipt for the article.
Division 2—Corporate plans
38
Matters to be considered in setting financial target
In preparing or revising a financial
target for inclusion in a corporate plan under section 17 of the Commonwealth
Authorities and Companies Act 1997, the Board shall have regard to:
(a) the need to earn a reasonable rate
of return on Australia Post’s assets;
(b) the need to maintain the extent of
the Commonwealth’s equity in Australia Post;
(c) the expectation of the
Commonwealth that Australia Post will pay a reasonable dividend;
(d) the need to maintain Australia
Post’s financial viability;
(e) the need to maintain a reasonable
level of reserves, especially to make provision for:
(i) any estimated future
demand for postal services; and
(ii) any need to improve
the accessibility of, and performance standards for, the letter service;
(f) any other commercial matters the
Board considers appropriate;
(g) the cost of carrying out Australia
Post’s community service obligations;
(h) the cost of performing Australia
Post’s functions in a manner consistent with the general policies of the
Commonwealth Government of which the directors are notified under section 28
of the Commonwealth Authorities and Companies Act 1997;
(j) the cost of implementing any
directions given by the Minister under section 49; and
(k) the cost of any other obligations
of Australia Post under this or any other Act that require it to act otherwise
than in accordance with normal commercial practice.
40
Minister may direct certain variations of corporate plans
(1) If the Minister receives a corporate plan
for Australia Post under section 17 of the Commonwealth Authorities and
Companies Act 1997, the Minister may, within 60 days and after consultation
with the Board, direct the Board to vary either or both of the following:
(a) the statement included in the plan
of the strategies and policies that Australia Post is to follow to carry out
its community service obligations;
(b) a financial target under a plan.
(2) In exercising powers under paragraph (1)(b),
the Minister shall have regard to:
(a) the matters referred to in section 38
(other than the matter referred to in paragraph (f)); and
(b) any other matters the Minister
considers appropriate.
(3) A direction under subsection (1)
shall be in writing and shall set out the Minister’s reasons for the direction.
(4) If the Minister gives a direction under subsection (1),
the Minister must cause a copy of the direction to be laid before each House of
the Parliament within 15 sitting days of that House after giving the direction.
(5) Australia Post must comply with a
direction under subsection (1) and must inform the Minister of the changes
made to the plan to comply with the direction.
Division 3—Other accountability requirements
43
Extra general matters to be included in annual reports
(1) The annual report on Australia Post under
section 9 of the Commonwealth Authorities and Companies Act 1997
must also:
(a) include the objectives of
Australia Post and its subsidiaries under the corporate plan; and
(b) include an outline of:
(i) the strategies and
policies of Australia Post and its subsidiaries that are set out in the
corporate plan; and
(ii) the financial targets
and non‑financial performance measures that are set out in the corporate
plan; and
(c) include an assessment of the
extent to which the operations of Australia Post and its subsidiaries during
the year have achieved those objectives; and
(d) include an outline of the
strategies and policies that Australia Post is following to carry out its
community service obligations; and
(e) if the Minister has, under
subsection 40(1), directed the Board to vary the statement included in the
corporate plan of Australia Post’s strategies and policies to carry out its community
service obligations—include an outline of the strategies and policies that the
Minister directed the Board to vary; and
(f) include an assessment of the
appropriateness and adequacy of the strategies and policies that Australia Post
is following to carry out its community service obligations; and
(fa) include a statement about
compliance, during the year, with the performance standards referred to in
paragraph 27(4)(b) (these standards relate to Australia Post’s community
service obligations); and
(g) include particulars of:
(i) any general policies
of the Commonwealth Government of which the directors are notified under
section 28 of the Commonwealth Authorities and Companies Act 1997
that are applicable to the year; and
(ii) any directions given
by the Minister under section 49 that are applicable to the year; and
(h) deal specifically with the effect
on Australia Post’s operations during the year of:
(i) each such policy and
direction; and
(ii) any other obligations
of Australia Post under this or any other Act that require it to act otherwise
than in accordance with normal commercial practice; and
(j) if the Minister has, under
subsection 33(3), disapproved a proposed determination by the Board fixing or
varying rates of postage—set out particulars of the proposed determination; and
(k) include particulars of:
(i) companies that
Australia Post and its subsidiaries formed, and companies in whose formation
Australia Post and its subsidiaries participated, during the year;
(ii) companies that became
or ceased to be subsidiaries of Australia Post and its subsidiaries during the
year; and
(iii) interests in
partnerships, trusts, unincorporated joint ventures and other arrangements for
the sharing of profits that Australia Post and its subsidiaries acquired or
disposed of during the year; and
(m) include an outline of:
(i) shares that Australia
Post subscribed for, purchased or disposed of during the year;
(ii) other business
interests that Australia Post and its subsidiaries acquired or disposed of
during the year; and
(iii) other activities of
Australia Post’s subsidiaries during the year; and
(n) include an outline of the exercise
during the year by Australia Post and its employees of any powers to open, or
examine the contents of, articles carried by post; and
(o) include, in relation to:
(i) each subsection of
section 90J (other than subsections 90J(2) and (4)); and
(ii) each
subsection of section 90K;
a record of the number of times
during the year that information or documents were disclosed in reliance on
that subsection and of the persons, authorities or bodies to which information
or documents were so disclosed.
(2) In this section:
corporate plan
means the corporate plan for Australia Post under section 17 of the Commonwealth
Authorities and Companies Act 1997.
44
Extra financial matters to be included in annual reports
(1) The annual report on Australia Post under
section 9 of the Commonwealth Authorities and Companies Act 1997
must also:
(a) specify the financial targets
applicable to the year under the corporate plan; and
(b) if the Minister has, under
subsection 40(1), directed the Board to vary a financial target—specify the
financial target that the Minister directed the Board to vary and set out the
reasons given to the Board by the Minister for the direction; and
(c) include an assessment of Australia
Post’s progress in achieving the financial targets under the corporate plan;
and
(d) specify the dividend paid or
proposed to be paid to the Commonwealth for the year; and
(e) if the Minister has, under
subsection 54(3), directed the payment of a dividend, or a different dividend,
for the year—specify the recommendation made by the Board to the Minister in
relation to the dividend for the year; and
(f) include particulars of any
amounts of capital repaid to the Commonwealth during the year; and
(g) include an assessment of:
(i) the cost of carrying
out Australia Post’s community service obligations;
(ii) the cost of performing
Australia Post’s functions in a manner consistent with the general policies of
the Commonwealth Government of which the directors are notified under section 28
of the Commonwealth Authorities and Companies Act 1997;
(iii) the cost of
implementing any directions given by the Minister under section 49; and
(iv) the cost of any other
obligations of Australia Post under this or any other Act that require it to
act otherwise than in accordance with normal commercial practice; and
(h) include the financial information
that the Minister requests in relation to each of the following categories of
Australia Post’s activities:
(i) the reserved services
(taken as a whole);
(ii) its other activities
(taken as a whole).
(2) A request under paragraph (1)(h)
must be made by notice in writing given to Australia Post.
(3) In this section:
corporate plan means the corporate plan for
Australia Post under section 17 of the Commonwealth Authorities and
Companies Act 1997.
49
Minister may give directions to the Board
(1) Subject to subsection (2), the Minister
may, after consultation with the Board, give to the Board such written
directions in relation to the performance of Australia Post’s functions as
appear to the Minister to be necessary in the public interest.
(2) The Minister shall not give a direction
under subsection (1) in relation to:
(a) rates of postage; or
(b) amounts to be charged for work
done, or services, goods or information supplied, by Australia Post.
(3) Where the Minister gives a direction
under subsection (1), the Minister shall cause a copy of the direction to
be laid before each House of the Parliament within 15 sitting days of that
House after giving the direction.
50 Australia
Post and Board not otherwise subject to government direction
Except as otherwise provided by or under
this or any other Act, Australia Post and its Board are not subject to
direction by or on behalf of the Commonwealth Government.
Part 4A—Monitoring of Australia Post
Division 2—Role of the ACCC
50H
ACCC may require Australia Post to keep records
(1) The ACCC may require Australia Post to
keep records:
(a) about the matters specified by the
ACCC; and
(b) in the manner and form specified
by the ACCC.
(2) Without limiting subsection (1), the
ACCC must require Australia Post to keep records about its reserved services.
(3) Australia Post must give the ACCC:
(a) copies of records kept under subsections (1)
and (2); or
(b) details about information
contained in those records;
on request by the ACCC:
(c) in the manner and form specified
by the ACCC; and
(d) within the time specified by the
ACCC.
(4) The ACCC may only require Australia Post
to keep records under subsection (1) about matters that are relevant to
the following:
(a) the performance of the ACCC’s
functions in relation to prices surveillance and to section 32B of this
Act;
(b) the financial relationship between
parts of Australia Post’s business that relate to reserved services and parts
that do not;
(c) the financial relationship between
different parts of Australia Post’s business that relate to reserved services.
50I
ACCC may publish reports analysing records
The ACCC may prepare and publish reports
analysing information given to the ACCC under subsection 50H(3).
50J
Minister may direct ACCC to report
(1) The Minister may direct the ACCC to do
either or both of the following:
(a) prepare;
(b) publish;
a report analysing the information in records kept under
subsections 50H(1) and (2).
(2) The ACCC must comply with a direction
under subsection (1).
50K
Publication of confidential information
A report published under section 50I
or 50J may include information that Australia Post claims is commercial‑in‑confidence
information if the ACCC is satisfied:
(a) that the claim is not justified;
or
(b) that it is in the public interest
to publish the information.
Part 5—Finance
51
Determination of Australia Post’s initial capital under Act
(1) The Minister shall, as soon as
practicable after the commencement of this Act and after consultation with the
Board, determine the amount of Australia Post’s initial capital under this Act.
(2) In making the determination, the Minister
shall have regard to any relevant advice that the Board has given to the
Minister.
(3) The determination shall be made in
writing.
52 Australia
Post’s capital
(1) Australia Post’s capital is equal to the
sum of:
(a) the amount of Australia Post’s
initial capital under this Act (as determined by the Minister under subsection
51(1));
(b) any part of Australia Post’s
liabilities to the Commonwealth at the commencement of this Act that is
subsequently converted into capital at the direction of the Minister;
(c) any amounts paid to Australia Post
after the commencement of this Act out of money appropriated by the Parliament
for the purpose of providing capital; and
(d) any
part of Australia Post’s reserves that, after the commencement of this Act, is
converted into capital at the direction of the Minister after consultation with
the Board;
less any amounts of capital repaid under subsection (2).
(2) Interest is not payable to the
Commonwealth on Australia Post’s capital, but the capital is repayable to the
Commonwealth at such times, and in such amounts, as the Minister directs after
consultation with the Board.
(3) In giving such a direction, the Minister
shall have regard to any advice that the Board has given to the Minister in
relation to Australia Post’s financial affairs.
(4) A direction under this section shall be
given in writing.
53
Revaluation of assets
The Board shall ensure that, at least
once every 5 years, Australia Post’s assets are revalued in accordance with
normal commercial practice.
54
Payments of dividends to Commonwealth
(1) The Board shall, within 4 months after
the end of each financial year, by written notice to the Minister, recommend
that Australia Post pay a specified dividend, or not pay a dividend, to the
Commonwealth for the financial year.
(2) In making the recommendation, the Board
shall have regard to the matters referred to in section 38 (other than the
matter referred to in paragraph (a)).
(3) The Minister shall, within 45 days after
receiving the recommendation, by written notice to the Board, either:
(a) approve the recommendation; or
(b) direct the payment of a dividend
or a different specified dividend, as the case requires.
(4) In exercising powers under subsection (3),
the Minister shall have regard to:
(a) the matters referred to in section 38
(other than the matters referred to in paragraphs (a) and (f)); and
(b) any other matters the Minister
considers appropriate.
(4A) If the Minister gives a direction under paragraph (3)(b),
the Minister must cause a copy of the direction to be laid before each House of
the Parliament within 15 sitting days of that House after giving the direction.
(5) Australia Post’s dividend for a financial
year shall not exceed its profit for the year, after provision has been made
for income tax.
(6) Subject to section 55, the dividend
payable for a financial year shall be paid within 6 months after the end of the
financial year or such further period as the Minister directs after
consultation with the Board.
(7) In exercising powers under subsection (6),
the Minister shall have regard to any recommendation of the Board in relation
to the time of payment of the dividend.
(8) A direction under subsection (6)
shall be given in writing.
55
Interim dividends
(1) The Board must, within 60 days after 31 December
in each financial year, by written notice to the Minister, recommend that
Australia Post pay a specified amount, or not pay any amount, to the
Commonwealth on account of the dividend that may become payable under section 54
for the financial year.
(3) The Minister shall, within 45 days after
receiving the recommendation, by written notice to the Board, either:
(a) approve the recommendation; or
(b) give directions to the Board in
relation to the payment of amounts to the Commonwealth on account of the
dividend that may become payable under section 54 for the financial year.
(4) In exercising powers under subsection (3),
the Minister shall have regard to:
(a) the matters referred to in section 38
(other than the matters referred to in paragraphs (a) and (f)); and
(b) any other matters the Minister
considers appropriate.
(5) If the Minister gives a direction under paragraph (3)(b),
the Minister must cause a copy of the direction to be laid before each House of
the Parliament within 15 sitting days of that House after giving the direction.
56
Reimbursement of cost of complying with directions
(1) Where Australia Post satisfies the
Minister that it has suffered financial detriment as a result of complying with
a direction given by the Minister under section 49, Australia Post is
entitled to be reimbursed by the Commonwealth the amount that the Minister
determines, after consultation with the Board, to be the amount of the
financial detriment.
(2) In making such a determination, the
Minister shall have regard to any advice that the Board has given to the
Minister as to the amount of the financial detriment.
(3) The reference in subsection (1) to
suffering financial detriment includes a reference to:
(a) incurring costs that are greater
than would otherwise have been incurred; or
(b) forgoing revenue that would
otherwise have been received.
(4) A determination under subsection (1)
shall be made in writing.
56A
Recovery of costs incurred by the ACCC
Minister may estimate costs for financial year
(1) The Minister may, during a financial
year:
(a) estimate the ACCC’s costs for that
financial year; and
(b) notify Australia Post of the
Minister’s estimate.
Minister may determine actual costs for previous
financial year
(2) The Minister may, in a financial year,
determine the ACCC’s actual costs for the previous financial year.
Minister may direct Australia Post to pay adjusted estimated
costs to ACCC
(3) The Minister may, in a financial year,
direct Australia Post to pay to the ACCC, on behalf of the Commonwealth, the
Minister’s estimate of the ACCC’s costs for that financial year, adjusted in
accordance with subsection (7) or (8).
Adjustment for ACCC
(7) If:
(a) in the previous financial year,
the Minister directed Australia Post to pay an amount to the ACCC; and
(b) the Minister determines that the
ACCC’s actual costs for that previous financial year exceed the costs the
Minister estimated for the ACCC that year;
the amount the Minister may direct Australia Post to pay
to the ACCC under subsection (3) is increased by that excess.
(8) If:
(a) in the previous financial year,
the Minister directed Australia Post to pay an amount to the ACCC; and
(b) the Minister determines that the
ACCC’s actual costs for that previous financial year fall short of the costs
the Minister estimated for the ACCC that year;
the amount the Minister may direct Australia Post to pay
to the ACCC under subsection (3) is reduced by that shortfall.
Note: Because the ACCC is a prescribed agency for
the purposes of the Financial Management and Accountability Act 1997,
its officials are required to deal with amounts received under subsection (3)
in accordance with that Act.
Costs
(9) In this section:
ACCC’s costs means the costs of the ACCC in
performing its functions under this Act.
costs means an amount that, in accordance
with accrual‑based accounting principles, is treated as a cost.
57
Expenditure of Australia Post’s money
(1) Australia
Post’s money may be expended only:
(a) in payment of amounts properly
payable in the performance of its functions;
(b) in payment of remuneration and
allowances payable under this Act; and
(c) in making any other payments that
Australia Post is authorised or required to make by or under this or any other
Act.
(2) Subsection (1) does not prevent
investment of surplus money of Australia Post under section 19 of the Commonwealth
Authorities and Companies Act 1997.
60
Borrowings from Commonwealth
The Minister for Finance may, on behalf
of the Commonwealth, out of money appropriated by the Parliament for the
purpose, lend money to Australia Post on such terms and conditions as the
Minister for Finance determines in writing.
61
Borrowings from persons other than Commonwealth
(1) Australia Post may borrow money from
persons other than the Commonwealth.
(2) Money may be borrowed wholly or partly in
foreign currency.
62
Security for borrowings
Australia Post may give security over
the whole or any part of its assets for the due performance of obligations
incurred by it under section 61.
63
Liability to taxation
(1) Australia
Post is subject to taxation under the laws of the Commonwealth and the States
and Territories.
(2) Australia Post is not a public authority
for the purposes of section 50‑25 of the Income Tax Assessment
Act 1997.
(3) Subsection (1) has effect subject to
the regulations and to Division 2 of Part 9 of the Telecommunications
and Postal Services (Transitional Provisions and Consequential Amendments) Act
1989.
Part 6—Directors of Australia Post
Division 1—Meetings of the Board
64
Interpretation—meaning of the required minimum number of directors
In this Division:
the required minimum number of directors
means:
(a) if there are 9 directors—5
directors; and
(b) in any other case—4 directors.
65
Times and places of meetings
(1) Subject to subsection (2), meetings
of the Board shall be held at such times and places as the Board determines.
(2) The Chairperson:
(a) may at any time convene a meeting;
and
(b) shall convene a meeting when
requested by at least the required minimum number of directors.
66
Presiding at meetings
(1) The Chairperson shall preside at all
meetings at which the Chairperson is present.
(2) If the Chairperson and Deputy Chairperson
are not present at a meeting, the directors present shall appoint one of the
directors present to preside.
67
Quorum and voting at meetings
(1) At a meeting of the Board:
(a) subject to subsection (2),
the required minimum number of directors constitute a quorum;
(b) a question shall be decided by a
majority of votes of the directors present and voting; and
(c) the director presiding has a
deliberative vote and, if there is an equality of votes, also has a casting
vote.
(2) If, because of section 27J of the Commonwealth
Authorities and Companies Act 1997, a director is not present at a meeting
of the Board during a deliberation of the Board in relation to a matter, but
there would be a quorum if the director were present, the remaining directors
present constitute a quorum for the purpose of any deliberation or decision of
the Board at the meeting in relation to the matter.
68
Conduct of meetings
(1) The Board may, subject to this Division,
regulate its proceedings as it considers appropriate.
(2) Without limiting subsection (1), the
Board may permit directors to participate in a particular meeting, or all
meetings, by:
(a) telephone;
(b) closed‑circuit television;
or
(c) any other means of communication.
(3) A director who participates in a meeting
of the Board under a permission under subsection (2) shall be taken to be
present at the meeting.
(4) Without limiting subsection (1), the
Board may invite a person to attend a meeting for the purpose of advising or
informing it on any matter.
69
Resolutions without meetings
(1) If at least the required minimum number
of directors sign a document containing a statement that they are in favour of
a resolution in terms set out in the document, a resolution in those terms
shall be taken to have been passed at a meeting of the Board held on the day on
which the document is signed or, if the directors do not sign it on the same
day, on the day on which the last director signs the document.
(2) If a resolution is, under subsection (1),
taken to have been passed at a meeting of the Board, each director shall
immediately be advised of the matter and given a copy of the terms of the
resolution.
(3) For the purposes of subsection (1),
2 or more separate documents containing a statement in identical terms, each of
which is signed by one or more directors, shall be taken to constitute one
document.
70
Minutes
The Board shall keep minutes of its
proceedings.
71
Disclosure not required in relation to publicly available goods or services
Sections 27F and 27J of the Commonwealth
Authorities and Companies Act 1997 do not apply to a matter relating to the
supply of goods or services for a director if the goods or services are, or are
to be, available to members of the public on the same terms and conditions.
Division 2—Provisions relating to directors other than the Managing
Director
72
Division applies to directors other than Managing Director
This Division applies in relation to the
directors other than the Managing Director.
73
Appointment of directors
(1) The directors are to be appointed by the
Governor‑General on the nomination of the Minister.
(2) The Minister must consult with the
Chairperson before nominating a person for appointment as a director.
(3) In nominating persons for appointment as
directors, the Minister must have regard to the need to ensure that the
directors collectively possess an appropriate balance of expertise and, in
particular, include a person who the Minister, after consultations with
representatives of industrial organisations representing employees, is
satisfied has an appropriate understanding of the interests of employees.
(4) The appointment of a person as a director
is not invalid merely because of a defect or irregularity in relation to the
appointment.
74
Term of appointment
(1) A director holds office, subject to this
Act, for such term as is specified in the instrument of appointment.
(2) The term specified must be 5 years or
less.
75
Directors hold office on part time basis
Directors hold office on a part time
basis.
76
Remuneration and allowances
(1) A director shall be paid such
remuneration as is determined by the Remuneration Tribunal.
(2) If no determination of that remuneration
by the Tribunal is in operation, the director shall be paid such remuneration
as is prescribed.
(3) A director shall be paid such allowances
as are prescribed.
(4) This section has effect subject to the Remuneration
Tribunal Act 1973.
77
Leave of absence
The Board may grant leave of absence to
a director on such terms and conditions as the Board considers appropriate.
78
Resignation
A director may resign by writing signed
and delivered to the Governor‑General.
79
Termination of appointment
(1) The Governor‑General may terminate
the appointment of a director for misbehaviour or physical or mental
incapacity.
(2) If a director:
(a) becomes bankrupt, applies to take
the benefit of a law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes an assignment of his or her remuneration for
their benefit;
(b) without reasonable excuse,
contravenes section 27F or 27J of the Commonwealth Authorities and
Companies Act 1997; or
(c) is
absent, without the Board’s leave and without reasonable excuse, from 3
consecutive meetings of the Board;
the Governor‑General shall terminate the director’s
appointment.
(3) Where:
(a) the Minister is of the opinion
that the performance of the Board or Australia Post has been unsatisfactory for
a significant period of time; and
(b) the
Minister proposes that the appointment of all directors or specified directors
be terminated;
the Governor‑General shall terminate the appointment
of all directors or the specified directors, as the case may be.
(4) Where:
(a) the Minister is of the opinion
that the performance of a particular director has been unsatisfactory for a
significant period of time; and
(b) the
Minister proposes that the appointment of the director be terminated;
the Governor‑General shall terminate the appointment
of the director.
(5) If:
(a) the Minister is of the opinion
that the Board has failed to comply with an obligation under section 15 or
16, or subsection 17(5), of the Commonwealth Authorities and Companies Act
1997; and
(b) the
Minister proposes that the appointment of all directors or specified directors
be terminated;
the Governor‑General is to terminate the appointment
of all directors, or the specified directors, as the case may be.
80
Terms and conditions of appointment not provided for by Act
A director holds office on such terms
and conditions (if any) in relation to matters not provided for by this Act as
are determined by the Minister in writing.
81
Deputy Chairperson
(1) When:
(a) the office of Chairperson is vacant;
or
(b) the
Chairperson is absent from Australia or is, for any reason, unable to attend
meetings of the Board or otherwise unable to perform the duties of the office;
the Deputy Chairperson shall act as Chairperson.
(2) While the Deputy Chairperson is acting as
Chairperson, the Deputy Chairperson has and may exercise all the powers, and
shall perform all the duties, of the Chairperson.
(3) Anything done by or in relation to the
Deputy Chairperson while the Deputy Chairperson is purporting to act as Chairperson
is not invalid merely because the occasion for the Deputy Chairperson to act as
Chairperson had not arisen or had ceased.
82
Acting appointments
(1) The Minister may appoint a director to
act as Deputy Chairperson:
(a) during a vacancy in the office of
Deputy Chairperson; or
(b) during any period, or during all
periods, when the Deputy Chairperson is acting as Chairperson or is unable, for
any reason, to attend meetings of the Board.
(2) The Minister may appoint a person to act
as a director referred to in paragraph 22(d):
(a) during a vacancy in the office of
such a director; or
(b) during any period, or during all
periods, when such a director is acting as Deputy Chairperson or is unable, for
any reason, to attend meetings of the Board.
(3) Anything done by or in relation to a
person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment
had not arisen;
(b) there was a defect or irregularity
in relation to the appointment;
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Division 3—Provisions relating to the Managing Director
83
Appointment
(1) The Managing Director is to be appointed
by the Board.
(2) The Board must not appoint the
Chairperson, the Deputy Chairperson or a director referred to in paragraph
22(d) as Managing Director.
(3) The appointment of a person as Managing
Director is not invalid merely because of a defect or irregularity in relation
to the appointment.
84 Managing
Director holds office during Board’s pleasure
The Managing Director holds office
during the Board’s pleasure.
85
Managing Director holds office on full time basis
The Managing Director holds office on a
full time basis.
86
Terms and conditions of appointment not provided for by Act
The Managing Director holds office on
such terms and conditions (including terms and conditions relating to
remuneration and allowances) in relation to matters not provided for by this
Act as are determined by the Board.
87
Disclosure of interests
The Managing Director shall give written
notice to the Chairperson of all direct and indirect pecuniary interests that
the Managing Director has or acquires in any business or in any body corporate
carrying on any business.
88
Acting Managing Director
(1) The Board
may appoint a director or another person to act as Managing Director:
(a) during a vacancy in the office of
Managing Director; or
(b) during any period, or during all
periods, when the Managing Director is absent from duty or from Australia or
is, for any other reason, unable to perform the duties of the office.
(3) Anything done by or in relation to a
person purporting to act as Managing Director is not invalid merely because:
(a) the occasion for the appointment
had not arisen;
(b) there was a defect or irregularity
in relation to the appointment;
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
Part 7—Australia Post’s staff
89
Staff
(1) Australia Post may engage such employees
as are necessary for the performance of its functions.
(2) The terms and conditions of employment
shall be determined by Australia Post.
90 Australia
Post as employer
Australia Post shall endeavour to
achieve and maintain high standards as an employer in relation to terms and
conditions of employment, occupational health, industrial safety, industrial
democracy, non‑discriminatory employment practices and other matters.
Part 7A—Application of State and Territory laws
90A Australia
Post not entitled to immunities or privileges of Commonwealth
For the purposes of the laws of the
Commonwealth, or of a State or Territory, Australia Post is not entitled to any
immunity or privilege of the Commonwealth except so far as express provision is
made by this Act or any other law of the Commonwealth, or by a law of the State
or Territory.
90B
Discriminatory laws do not apply
A law of a State or Territory does not
apply to Australia Post if, apart from this section, it would:
(a) apply to Australia Post; and
(b) so apply as to discriminate
against Australia Post.
90C
State or Territory laws do not apply retrospectively before 1 January 1991
A law of a State or Territory that,
apart from this section, would:
(a) operate retrospectively back to a
time before 1 January 1991; and
(b) as
so operating, apply to Australia Post;
only applies to Australia Post on and after that day.
90D
Laws relating to buildings, structures and facilities do not apply
(1) This section applies to a building that
is the property of Australia Post if, immediately before 1 January 1991:
(a) the building was the property of
Australia Post and was occupied or in use by Australia Post; or
(b) the building was under construction,
alteration or demolition by, or on behalf of, Australia Post.
(2) While this section applies to the
building, laws of the States and Territories that deal with any of the
following matters do not apply to the building:
(a) the standards applicable to the
design or the construction of buildings;
(b) the approval of the construction
of buildings;
(c) the occupancy or use of buildings;
(d) the alteration or demolition of
buildings.
(3) In this section:
building includes a structure or facility.
Part 7B—Dealing with articles and their contents
Division 1—Interpretation
90E
Definitions
In this Part:
ASIO means the Australian Security
Intelligence Organisation.
ASIO Act means the Australian Security
Intelligence Organisation Act 1979.
authorised ASIO officer has the meaning given
by section 90F.
authorised discloser has the meaning given by
section 90FA.
authorised examiner has the meaning given by
section 90FB.
customs duty means any duty of customs
imposed under a law of the Commonwealth.
customs officer means an Officer of Customs
within the meaning of the Customs Act 1901.
employee of Australia Post, when used in this
Division (other than section 90FB) or in Division 2, 4 or 5, includes
a person who performs services for or on behalf of Australia Post and an
employee of such a person.
GST has the same meaning as in the A New
Tax System (Goods and Services Tax) Act 1999.
information includes suspicions, suppositions
or opinions.
in the course of post, in relation to an
article, means the article:
(a) is being carried by post; or
(b) has been collected or received by
Australia Post for carriage by post, but has not been delivered by Australia
Post.
specially protected has the meaning given by
subsections 90G(2) and (3).
taxable importation has the same meaning as
in the A New Tax System (Goods and Services Tax) Act 1999.
wine tax has the same meaning as in the A
New Tax System (Wine Equalisation Tax) Act 1999.
90F
Meaning of authorised ASIO officer
(1) For the purposes of Division 2, an authorised
ASIO officer is an officer or employee of ASIO authorised in writing by
a person mentioned in subsection (2) to receive disclosures under this
Part.
(2) These are the persons who may give an
authorisation:
(a) the Director‑General of
Security;
(b) an officer or employee of ASIO
authorised in writing by the Director‑General of Security to give
authorisations for the purposes of this section.
90FA
Meaning of authorised discloser
For the purposes of a provision of
Division 2, an authorised discloser is an employee of
Australia Post appointed in writing by Australia Post to make disclosures under
that provision.
90FB
Meaning of authorised examiner
(1) For the purposes of a provision of
Division 3, an authorised examiner is a person appointed
under subsection (2) or (3) to exercise powers under that provision.
(2) Australia Post may, by writing, appoint
an employee of Australia Post to exercise powers under a provision of Division 3
(including section 90P).
(3) Australia Post may, by writing, appoint a
person who is not an employee of Australia Post to exercise powers under
section 90P.
Division 2—Limits on use or disclosure of information and documents
Subdivision A—Use or disclosure by current employees of Australia Post
90G
Application of Subdivision
(1) This Subdivision applies to a person who
is an employee of Australia Post and to information or a document acquired or
received by the person if:
(a) the person acquired or received
the information or document in the course of his or her employment as an
employee of Australia Post; and
(b) the information or document:
(i) is, or relates to, an
article, or some or all of the contents or substance of an article, that has
been carried by post or is in the course of post; or
(ii) relates to services
supplied, or intended to be supplied, to another person by Australia Post; or
(iii) relates to the affairs
or personal particulars (including name or address) of another person.
(2) Subject to subsection (3), the
information or document is specially protected if subparagraph (1)(b)(i)
is satisfied in relation to the information or document, whether or not subparagraph (1)(b)(ii)
or (iii) is also satisfied in relation to it.
(3) The information or document is not specially
protected if:
(a) in the case of information—the
information is clearly visible on, or through, the outside of the cover of the
article; or
(b) in the case of a document—the
document consists of the outside of the cover of the article.
90H
Prohibition on use or disclosure by current employees
(1) For the purposes of this section, the use
or disclosure of the information or document by the person is prohibited
conduct if the use or disclosure is not permitted by section 90J,
90K or 90L.
(2) If the person engages in prohibited conduct,
the person is guilty of an offence punishable, on conviction, by imprisonment
for a period not exceeding 2 years.
(3) For the purposes of a prosecution for an
offence against subsection (2) relating to the use or disclosure of the
information or document:
(a) the use or disclosure is to be
taken not to have been permitted by section 90J, 90K or 90L unless the
defendant presents or points to evidence that suggests a reasonable possibility
that the use or disclosure was permitted by a provision (the authorising
provision) of one of those sections; and
(b) if the defendant does so produce
or point to evidence—the use or disclosure is to be taken to be permitted by
the section that contains the authorising provision unless the prosecution
proves, beyond reasonable doubt, that the use or disclosure was not permitted
by the authorising provision.
90J
Permitted use or disclosure whether or not information or document is specially
protected
Application of section
(1) This section applies to the use or disclosure
of the information or document whether or not it is specially protected.
Disclosure in performance of duties
(2) The person may use or disclose the
information or document in the performance of duties as an employee of
Australia Post.
Disclosure under warrants
(3) The person may disclose the information
or document as required by or under a warrant issued under a law of the
Commonwealth or of a State or Territory.
Disclosure as a witness
(4) The person may disclose the information
or document as a witness summonsed to give evidence, or to produce documents,
in a court of law.
Disclosure under a law of the Commonwealth
(5) The person may disclose the information
or document as required by or under a law of the Commonwealth.
Disclosure under certain laws establishing Commissions
(6) The person may disclose the information
or document as required by or under:
(a) the New South Wales
Crime Commission Act 1985 of New South Wales; or
(b) the Independent Commission
Against Corruption Act 1988 of New South Wales; or
(c) the Crime and Misconduct Act
2001 of Queensland; or
(d) any other prescribed law of a
State or Territory that establishes a Commission or other body to conduct
investigations or inquiries.
Disclosure under Australian Crime Commission
legislation
(6A) The person may disclose the information or
document as required by or under a law of a State if the Australian Crime
Commission performs a duty or function, or exercises a power, under that law in
accordance with section 55A of the Australian Crime Commission Act 2002.
Disclosure to reduce threat to life or health
(7) The person may disclose the information
or document to an officer or employee of a police force or service, fire
service, ambulance service or other organisation providing emergency services
if the person believes, on reasonable grounds, that the disclosure is necessary
to prevent or lessen a serious and imminent threat to the life or health of a
person.
Disclosure of suspicions to authorised ASIO officers
(8) The person may disclose the information
to an authorised ASIO officer if:
(a) the person is an authorised
discloser; and
(b) the information is a reasonable
suspicion that an article consists of or contains anything that is or may be
relevant to security within the meaning of the ASIO Act.
Disclosure of suspicions where reasonably necessary for
enforcement of criminal law
(9) The person may disclose the information
if:
(a) the person is an authorised
discloser; and
(b) the information is a reasonable
suspicion that an article consists of or contains anything that is or may be
evidence of an offence.
90K
Extra situations in which use or disclosure is permitted if information or
document is not specially protected
Application of section
(1) This section only applies to the use or
disclosure of the information or document if it is not specially protected.
Disclosure to assist in notification of next of kin
(2) The person may disclose the information
or document to an officer or employee of a police force or service, fire
service, ambulance service or other organisation providing emergency services
if the person believes, on reasonable grounds, that the disclosure is necessary
to assist in the notification of the next of kin of a person who is seriously
injured or who has died.
Disclosure to customs officers
(3) The person may disclose the information
or document to a customs officer if:
(a) the person is an authorised
discloser; and
(b) there are reasonable grounds for
believing that the information or document relates to anything:
(i) on which customs duty
is payable; or
(ii) the importation of
which into Australia is a taxable importation on which GST is payable; or
(iia) on which wine tax is
payable; or
(iii) that is being carried
in contravention of a law of the Commonwealth relating to importing things
into, or exporting things from, Australia.
Disclosure to authorised ASIO officers
(4) The person may disclose the information
or document to an authorised ASIO officer if the person is an authorised discloser.
Disclosure for the enforcement of laws or protection of
public revenue
(5) The person may disclose the information
or document if:
(a) the person is an authorised
discloser; and
(b) the disclosure is reasonably
necessary for:
(i) the enforcement of the
criminal law; or
(ii) the enforcement of a
law imposing a pecuniary penalty; or
(iii) the protection of the
public revenue.
90L
Disclosure of personal information by consent
If the information relates to the
affairs or personal particulars (including name or address) of another person,
the person may disclose the information (whether or not it is specially
protected) if the disclosure:
(a) is made with the other person’s
consent given in writing on a form obtained from an office of Australia Post;
and
(b) is made to a person or an
organisation covered by the consent; and
(c) is recorded by Australia Post.
Subdivision B—Use or disclosure by former employees of Australia Post
90LA
Application of Subdivision
(1) This Subdivision applies to a person who
was an employee of Australia Post and to information or a document acquired or
received by the person if:
(a) the person acquired or received
the information or document in the course of his or her employment as an
employee of Australia Post; and
(b) the information or document:
(i) is, or relates to, an
article, or some or all of the contents or substance of an article, that has
been carried by post or is in the course of post; or
(ii) relates to services
supplied, or intended to be supplied, to another person by Australia Post; or
(iii) relates to the affairs
or personal particulars (including name or address) of another person.
(2) Subject to subsection (3), the
information or document is specially protected if subparagraph (1)(b)(i)
is satisfied in relation to the information or document, whether or not subparagraph (1)(b)(ii)
or (iii) is also satisfied in relation to it.
(3) The information or document is not specially
protected if:
(a) in the case of information—the
information is clearly visible on, or through, the outside of the cover of the
article; or
(b) in the case of a document—the
document consists of the outside of the cover of the article.
90LB
Prohibition on use or disclosure by former employees
(1) For the purposes of this section, the use
or disclosure of the information or document by the person is prohibited
conduct if the use or disclosure is not permitted by section 90LC
or 90LCA.
(2) If the person engages in prohibited
conduct, the person is guilty of an offence punishable, on conviction, by
imprisonment for a period not exceeding 2 years.
(3) For the purposes of a prosecution for an
offence against subsection (2) relating to the use or disclosure of the
information or document:
(a) the use or disclosure is to be
taken not to have been permitted by section 90LC or 90LCA, unless the
defendant presents or points to evidence that suggests a reasonable possibility
that the use or disclosure was permitted by a provision (the authorising
provision) of one of those sections; and
(b) if the defendant does so produce
or point to evidence—the use or disclosure is to be taken to be permitted by
the section that contains the authorising provision unless the prosecution
proves, beyond reasonable doubt, that the use or disclosure was not permitted
by the authorising provision.
90LC
Permitted use or disclosure whether or not information or document is specially
protected
Application of section
(1) This section applies to the use or
disclosure of the information or document whether or not it is specially
protected.
Disclosure under warrants
(2) The person may disclose the information
or document as required by or under a warrant issued under a law of the
Commonwealth or of a State or Territory.
Disclosure as a witness
(3) The person may disclose the information
or document as a witness summonsed to give evidence, or to produce documents,
in a court of law.
Disclosure under a law of the Commonwealth
(4) The person may disclose the information
or document as required by or under a law of the Commonwealth.
Disclosure under certain laws establishing Commissions
(5) The person may disclose the information
or document as required by or under:
(a) the New South Wales
Crime Commission Act 1985 of New South Wales; or
(b) the Independent Commission
Against Corruption Act 1988 of New South Wales; or
(c) the Crime and Misconduct Act
2001 of Queensland; or
(d) any other prescribed law of a
State or Territory that establishes a Commission or other body to conduct
investigations or inquiries.
Disclosure under Australian Crime Commission
legislation
(6) The person may disclose the information
or document as required by or under a law of a State if the Australian Crime
Commission performs a duty or function, or exercises a power, under that law in
accordance with section 55A of the Australian Crime Commission Act 2002.
90LCA
Extra situations in which use or disclosure is permitted if information or
document is not specially protected
Application of section
(1) This section only applies to the use or
disclosure of the information or document if it is not specially protected.
Disclosure to authorised ASIO officers
(2) The person may disclose the information
or document to an authorised ASIO officer.
Disclosure for the enforcement of laws or protection of
public revenue
(3) The person may disclose the information
or document if the disclosure is reasonably necessary for:
(a) the enforcement of the criminal
law; or
(b) the enforcement of a law imposing
a pecuniary penalty.
Subdivision C—Secondary use or disclosure by other people
90LD
Application of Subdivision
(1) Subject to
subsection (2), this Subdivision applies to a person and to information or
a document acquired or received by the person if:
(a) the person acquired or received
the information or document directly, or indirectly through one or more
persons, from an employee or former employee of Australia Post who acquired or
received the information or document in the course of his or her employment as
an employee of Australia Post; and
(b) the information or document:
(i) is, or relates to,
some or all of the contents or substance of an article that has been carried by
post or is in the course of post; or
(ii) relates to services
supplied, or intended to be supplied, to another person by Australia Post; or
(iii) relates to the affairs
or personal particulars (including any address) of another person; and
(c) Subdivision A does not apply to
the person and the information or document.
(2) This Subdivision does not apply to a
person and to information or a document acquired or received by the person if:
(a) the person is an officer or
employee of ASIO and the information or document is or may be relevant to
security within the meaning of the ASIO Act; or
(b) the person acquired or received
the information as a result, whether direct or indirect, of a disclosure of the
information or document to a court.
90LE
Prohibition on secondary use or disclosure by other people
(1) For the purposes of this section, the use
or disclosure of the information or document by the person is prohibited
conduct if the use or disclosure is not permitted by section 90LF.
(2) If the person engages in prohibited
conduct, the person is guilty of an offence punishable, on conviction, by
imprisonment for a period not exceeding 2 years.
90LF
Secondary use or disclosure permitted if for same purpose as original
disclosure or use
(1) This section applies to the use or
disclosure of the information or document if the person acquired or received
the information or document as a result, whether direct or indirect, of a
disclosure or use (the original disclosure) of the information or
document that was permitted under section 90J, 90K, 90LC or 90LCA.
(2) The person may use or disclose the
information or document if the use or disclosure is for the same purpose as the
purpose for which the original disclosure was made.
Subdivision D—Miscellaneous
90LG
Division does not authorise opening or examining
Nothing in this Division authorises a
person to open, or examine the contents of, an article that has been carried by
post or that is in the course of post.
90LH
Division does not affect powers etc. in relation to things other than
information or documents
This Division only applies to the use or
disclosure of information or documents. It does not affect the powers and
duties of Australia Post and employees of Australia Post in relation to
articles or their contents so far as they consist of or contain things other
than information or documents.
Division 3—Limits on opening and examining articles
90M
Articles to which Division applies
(1) Subject to subsection (2), this
Division applies to an article while it is in the course of post.
(2) This Division does not apply to an
article while it is out of the control (whether temporarily or otherwise) of
Australia Post.
90N
Prohibition on opening or examining article
(1) For the purposes of this section, the
opening of the article, or the examination of its contents, is prohibited
conduct if:
(a) the opening or examination is not
permitted by any of sections 90P to 90T; or
(b) the opening or examination is
permitted by section 90Q or 90S but occurs otherwise than at a place
determined in writing by the Board for the purpose of opening or examining the
article, or a class of articles that includes the article.
(2) A person who engages in prohibited
conduct is guilty of an offence punishable, on conviction, by imprisonment for
a period not exceeding 2 years.
90P
Examining without opening
An authorised examiner may examine the
article or its contents by any means that does not involve unfastening or
physically interfering with the cover of the article. For example, the article
or its contents may be examined by X‑ray, metal detector or odour
detector.
90Q Undeliverable
articles
(1) This section applies to the article if
it:
(a) cannot be delivered to the
intended recipient because it is not addressed, or it is inadequately or
incorrectly addressed; and
(b) cannot be returned to the sender
because it does not bear the sender’s address, or because the sender’s address
is not shown, or is inadequately or incorrectly shown.
(2) An authorised examiner may open the
article and examine its contents for the purpose of obtaining sufficient
information to:
(a) deliver the article to the
intended recipient; or
(b) return the article to the sender.
(3) Subject to section 90X, after an
authorised examiner has opened and examined the article, he or she must:
(a) if sufficient information is found
to deliver the article to the intended recipient—close up the article and
return it to the normal course of carriage; or
(b) if paragraph (a) does not
apply but sufficient information is found to return the article to the
sender—close up the article and return it to the sender; or
(c) otherwise—deal with the article in
accordance with the applicable provisions of the terms and conditions
determined under section 32.
90R
Repair
(1) An authorised examiner may open the
article for the purpose of repairing it or its contents so that the article may
be made safe for carriage by post.
(2) Subject to section 90X, after an
authorised examiner has made the repairs (if any) to the article or its
contents that he or she thinks appropriate, the authorised examiner must close
up the article and return it to the normal course of carriage.
90S
Articles on which customs duty is payable etc.
(1A) In this section:
Australia does not include the external
Territories.
(1) This
section applies if:
(a) the article is in the course of
post between Australia and a place outside Australia; and
(aa) the article is not an article to
which section 90T applies; and
(b) either or both of the following
conditions is or are satisfied:
(i) a customs officer has
requested an authorised examiner to open the article;
(ii) there are reasonable
grounds for believing that the article consists of, or contains, anything:
(A) on which
customs duty is payable; or
(B) the
importation of which into Australia is a taxable importation on which GST is
payable; or
(BA) on which
wine tax is payable; or
(C) that is
being carried in contravention of a law of the Commonwealth relating to the
importation into, or exportation from, Australia of that thing.
(2) An authorised examiner may open the
article in the presence of a customs officer.
(3) A customs officer in whose presence the
article is opened may examine the article to check whether it consists of or
contains anything described in sub-subparagraph (1)(b)(ii)(A), (B), (BA)
or (C).
(4) Subject to section 90X, if the
article is found not to consist of or contain anything referred to in sub-subparagraph (1)(b)(ii)(A),
(B), (BA) or (C), the authorised examiner must close up the article and return
it to the normal course of carriage.
(5) Subject to section 90X, if the
article is found to consist of or contain anything referred to in sub-subparagraph (1)(b)(ii)(A),
(B), (BA) or (C), the article and its contents must be dealt with in accordance
with any applicable laws of the Commonwealth relating to customs duty, GST,
wine tax or imports or exports, as the case requires.
90T
Articles reasonably believed to consist of, or contain, certain drugs or other
chemical compounds
(1) This section applies to any article
weighing 25 grams or more:
(a) that is in the course of post
between Australia and a place outside Australia; and
(b) that is reasonably believed by a
Customs officer to consist of, or contain, drugs or other chemical compounds
that are being carried in contravention of a law of the Commonwealth relating to
their importation into, or exportation from, Australia.
(2) The Customs officer may remove the
article to which this section applies from the normal course of carriage and
give it to a second Customs officer, following the procedures (if any) that are
prescribed for the purposes of this section.
(3) That second Customs officer may open the
article if:
(a) the second Customs officer
performs duties at a higher classification than the first Customs officer; and
(b) the second Customs officer
reasonably believes that the article consists of, or contains, drugs or other
chemical compounds that are being carried in contravention of a law of the
Commonwealth relating to their importation into, or exportation from, Australia;
and
(c) the opening takes place in the
presence of a third Customs officer.
(4) Having opened the article, that second
Customs officer may, in the presence of that third Customs officer, examine the
article to check whether it consists of, or contains, such drugs or other
chemical compounds.
(5) Subject to section 90X, if the
article is found not to consist of, or contain:
(a) such drugs or other chemical
compounds; or
(b) any other thing:
(i) on which Customs duty
is payable; or
(ii) the importation of
which into Australia is a taxable importation on which GST is payable; or
(iia) on which wine tax is
payable; or
(iii) that is being carried
in contravention of a law of the Commonwealth relating to its importation into,
or exportation from, Australia;
the Customs officer who opened the article must close up
the article, and return it to the normal course of carriage following such
procedures (if any) as are prescribed for the purposes of this section.
(6) Subject to section 90X, if the
article is found to consist of, or contain, such drugs or other chemical
compounds or such other thing, the article and its contents must be dealt with
in accordance with any applicable laws of the Commonwealth relating to customs
duty, GST, wine tax or imports or exports, as the case requires.
(7) Regulations may be made for the purposes
of this section that determine the procedure:
(a) for removing an article from the
normal course of carriage for the purpose of its examination by a Customs
officer; and
(b) for the return of an article to
the normal course of carriage.
(8) The Australian Customs Service
established under the Customs Administration Act 1985 must establish and
maintain, in accordance with regulations made for the purposes of this section,
a record setting out, in respect of each article that is removed from the
normal course of carriage and opened for the purpose of its examination by a
Customs officer:
(a) particulars of the article; and
(b) particulars of the nature of the
examination of the article and its contents; and
(c) whether the article and its
contents were, following the examination, dealt with according to law or
returned to the normal course of carriage.
(9) Regulations made for the purposes of subsection (8)
must specify:
(a) the place or places at which the
record referred to in that subsection is required to be established and
maintained; and
(b) the manner in which the record is
to be kept; and
(c) the uses that can be made of
information contained in the record.
90V
Articles to carry notice of opening etc.
(1) This section applies if:
(a) an article has been opened as
permitted by a provision of this Division; and
(b) the article is to be returned to
the normal course of carriage.
(2) If the article is opened by an authorised
examiner (whether in the presence of a Customs officer or not), then, before
the article is returned to the normal course of carriage, Australia Post must
cause to be endorsed on the cover of the article, or on a label affixed to its
cover, a notification that the article has been opened by Australia Post and
that explains briefly (by reference to a provision of this Division or
otherwise) the purpose for which the article was opened.
(2A) If the article is opened under section 90T
by a Customs officer, then, before the article is returned to the normal course
of carriage, the Customs officer must cause to be endorsed on the cover of the
article, or on a label affixed to its cover, a notification that the article
has been opened by the Australian Customs Service and that explains briefly (by
reference to section 90T or otherwise) the purpose for which the article
was opened.
(3) A failure to comply with subsection (2)
or (2A) does not make the opening of the article an offence.
90W
Permitted or required dealings are not prohibited by section 90H, 90LB or
90LE
Nothing that a person does by way of
dealing with an article as permitted or required by this Division constitutes a
use or disclosure of information or a document to which section 90H, 90LB
or 90LE applies.
90X
Articles may be dealt with under other provisions despite obligations under
this Division
(1) If section 90Z or 90ZA applies to an
article opened or examined under this Division, the article may be dealt with
under that section despite any provision of this Division that says what must
happen to the article after being opened or examined.
(2) If regulations dealing with the
forfeiture of articles carried by post apply to an article opened or examined
under this Division, the article may be dealt with under those regulations
despite any provision of this Division that says what must happen to the
article after being opened or examined.
Division 4—Dealing with dangerous, offensive etc. articles
90Y
Articles to which Division applies
(1) Subject to subsection (2), this Division
applies to an article while it is in the course of post.
(2) This Division does not apply to an
article while it is out of the control (whether temporarily or otherwise) of
Australia Post.
90Z
Dealing with dangerous or deleterious things
If an employee of Australia Post knows,
or has reasonable grounds for suspecting, that the article contains something
that is or could be explosive, dangerous or deleterious, the article may be
dealt with in accordance with the applicable provisions of the terms and
conditions agreed or determined under section 32.
90ZA
Destruction of physically offensive things
(1) If the article is physically offensive it
may be destroyed immediately by an employee of Australia Post.
(2) Australia Post must ensure that, before
the article is destroyed, the following information is recorded, to the extent
to which it is evident without unfastening or physically interfering with the
article’s cover:
(a) the sender’s name and address;
(b) the intended recipient’s name and
address;
(c) what the article contains.
(3) If the sender’s name and address has been
recorded, Australia Post must, as soon as practicable after the article’s
destruction, cause written notice to be given to the sender:
(a) advising of the article’s destruction
and the reasons for its destruction; and
(b) stating the following information,
if it has been recorded:
(i) the intended
recipient’s name and address;
(ii) what the article
contained.
(4) If the sender’s name and address has not
been recorded but the intended recipient’s name and address has been recorded,
Australia Post must, as soon as practicable after the article’s destruction,
cause written notice to be given to the intended recipient:
(a) advising of the article’s
destruction and the reasons for its destruction; and
(b) stating what the article
contained, if that information has been recorded.
(5) Words, pictures or graphics in the
article, regardless of their nature, do not make the article physically
offensive for the purposes of this section.
90ZB
Permitted dealings are not prohibited by section 90H, 90LB, 90LE or 90N
Nothing that a person does by way of
dealing with an article as permitted by this Division constitutes:
(a) a use or disclosure of information
or a document to which section 90H, 90LB or 90LE applies; or
(b) an opening or examination of the
article to which section 90N applies.
Division 5—Miscellaneous
90ZC Australia
Post and employees not liable for actions in good faith under this Part
(1) Neither Australia Post, nor an employee
of Australia Post, is liable to an action or other proceeding for damages for
or in relation to an act done or omitted in good faith in the exercise or
performance, or purported exercise or performance, of a power or duty under
this Part.
(2) For the avoidance of doubt, the reference
in subsection (1) to an act done or omitted to be done in good faith in
the exercise or performance, or the purported exercise or performance, of a
power or duty under this Part includes a reference to an act done or omitted to
be done in good faith by a Customs officer in the exercise or performance, or
the purported exercise or performance, of a power or duty under section 90T
or of a duty under subsection 90V(2A).
Part 8—Miscellaneous
93
Delegation of Australia Post’s powers
(1) An authorised person may, in writing,
delegate all or any of Australia Post’s powers to an employee of Australia
Post.
(2) In subsection (1):
authorised person means:
(a) the Managing Director; or
(b) an employee of Australia Post who
is, for the time being, authorised by the Board for the purposes of this
section.
94
Delegation of Board’s powers
(1) The Board may, by resolution, delegate
all or any of its powers (other than its powers under section 93 and
Division 3 of Part 6) to a director or an employee of Australia Post.
(2) The delegate is, in the exercise of a
delegated power, subject to the directions of the Board.
(3) A delegation of a power under subsection (1):
(a) may be revoked by resolution of
the Board (whether or not constituted by the persons who constituted the Board
when the power was delegated); and
(b) continues in force in spite of a
change in the membership of the Board.
(4) A certificate signed by the Chairperson
stating any matter in relation to a delegation of a power under subsection (1)
is prima facie evidence of the matter.
(5) A document purporting to be a certificate
under subsection (4) shall, unless the contrary is established, be taken
to be such a certificate and to have been properly given.
95
Post‑boxes
(1) Australia Post may erect, maintain and
use post‑boxes in any public road, street or highway or in any other
public place.
(2) Subject to subsection (3), Australia
Post shall keep in good order all post‑boxes erected by it.
(3) Australia Post may remove any post‑box
erected by it.
96 Australia
Post’s seal
(1) Australia Post’s seal shall be kept in
such custody as the Board directs and shall be used only as authorised by the
Board.
(2) All courts, judges and persons acting
judicially shall take judicial notice of the imprint of Australia Post’s seal
appearing on a document and shall presume that the document was properly
sealed.
97
Confirmation of contracts and authentication and execution of documents
(1) So far as concerns the formalities of
making, varying or discharging a contract, a person acting under Australia
Post’s express or implied authority may make, vary or discharge a contract in
the name of, or on behalf of, Australia Post in the same manner as if the
contract were made, varied or discharged by a natural person.
(2) The making, varying or discharging of a
contract in accordance with subsection (1) is effectual in law and binds
Australia Post and other parties to the contract.
(3) A contract or other document executed, or
purporting to have been executed, under Australia Post’s seal is not invalid
merely because a person attesting the affixing of the seal is in any way
(whether directly or indirectly) interested in the contract or other document
or in the matter to which the contract or other document relates.
(4) This section does not prevent Australia
Post from making, varying or discharging a contract under its seal.
(5) This section does not affect the
operation of any law that requires some consent or sanction to be obtained, or
some procedure to be complied with, in relation to the making, varying or
discharging of a contract.
98
Unclaimed money
(1) If:
(a) an amount has been received by
Australia Post for carriage to a person; and
(b) the amount has not been claimed
within one year after becoming payable to the person;
the amount shall be paid into an account kept by Australia
Post called the Unclaimed Money Fund.
(2) If Australia Post is satisfied that a
person is entitled to an amount that is in the Unclaimed Money Fund, Australia
Post shall pay the amount to the person from the Fund.
(3) Amounts that have remained in the
Unclaimed Money Fund for a period of 2 years shall be paid out of the Fund into
Australia Post’s general money.
(4) If an amount has, under subsection (3),
been paid out of the Unclaimed Money Fund, Australia Post is not required to
pay the amount to any person, but may, if it is satisfied that special reasons
exist for doing so, pay the amount to any person who satisfies Australia Post
that, but for this subsection, he or she would be entitled to the amount.
99
Lands Acquisition Act
(1) The Lands Acquisition Act 1989 does
not apply in relation to the acquisition of land, or an interest in land, by
Australia Post by agreement.
(1A) The Lands Acquisition Act 1989 does
not apply in relation to the disposal of, or other dealing in, land, or an
interest in land, by Australia Post.
(2) In this
section:
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 relation to, the land.
100
Public Works Committee Act
The Public Works Committee Act 1969 does
not apply in relation to Australia Post.
101
Articles carried by post to be taken to be Australia Post’s property
For the purpose of any legal proceeding
or action in relation to an article carried by post or under the control of
Australia Post, the article shall be taken to be, while it is being carried by
post or under the control of Australia Post, the property of Australia Post.
102
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act;
and may, for example, make regulations:
(c) with respect to the arrangements
for collecting duties of customs and other duties payable in relation to
articles carried by post;
(d) with respect to dealing with articles
that may contain goods on which duties of customs or other duties are payable;
(e) with respect to the making of
deductions from amounts due to any of Australia Post’s employees on account of
judgment debts;
(g) with respect to the forfeiture and
destruction of articles carried by post; and
(h) prescribing fines not exceeding
$1,000 for offences against the regulations.