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Commonwealth Services Delivery Agency Act 1997

  • - C2005C00557
  • In force - Superseded Version
  • View Series
Act No. 31 of 1997 as amended, taking into account amendments up to Act No. 111 of 2005
An Act to establish an agency for the provision of certain Commonwealth services, and for related purposes
Administered by: Human Services
Registered 09 Sep 2005
Start Date 17 Jun 2004
End Date 30 Sep 2005

Commonwealth Services Delivery Agency Act 1997

Act No. 31 of 1997 as amended

This compilation was prepared on 8 September 2005
taking into account amendments up to Act No. 111 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department,
Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement.................................................................................. 1

2A......... Application of the Criminal Code...................................................... 1

3............ Definitions.......................................................................................... 1

4............ Act binds the Crown.......................................................................... 2

5............ External Territories............................................................................. 2

Part 2—Establishment, functions and powers of the Agency                         3

6............ Establishment of Agency.................................................................... 3

7............ Service arrangements........................................................................... 3

8............ The Agency’s functions..................................................................... 3

9............ Ministerial directions about the performance of the Agency’s functions               4

10.......... Minister must consult the Board before giving directions.................. 4

Part 3—The Board of Management of the Agency                                             5

Division 1—Establishment, functions, powers and duties                        5

11.......... Establishment..................................................................................... 5

12.......... The Board’s functions and powers.................................................... 5

13.......... Ministerial directions to the Board..................................................... 5

14.......... Notification of policies....................................................................... 5

15.......... Minister may ask for information...................................................... 6

16.......... Membership of the Board.................................................................. 6

17.......... Acting Chairman................................................................................. 6

18.......... Delegation by the Board..................................................................... 7

19.......... Delegation by the Chairman............................................................... 7

Division 2—Meetings                                                                                                  8

20.......... Meetings............................................................................................. 8

21.......... Disclosure of interests........................................................................ 8

22.......... Procedure at meetings......................................................................... 9

Division 3—Administrative provisions                                                             10

23.......... Period of appointment of certain members...................................... 10

24.......... Remuneration and allowances of certain appointed members.......... 10

25.......... Outside employment........................................................................ 10

26.......... Resignation....................................................................................... 10

27.......... Terms and conditions not provided for by Act................................ 10

28.......... Termination of appointment............................................................ 11

Part 4—The Chief Executive Officer and employees                                      12

Division 1—The Chief Executive Officer                                                        12

29.......... Appointment.................................................................................... 12

30.......... Terms and conditions and termination of appointment................... 12

31.......... Acting Chief Executive Officer......................................................... 12

32.......... Duties............................................................................................... 13

33.......... Delegation by Chief Executive Officer............................................. 13

34.......... Resignation....................................................................................... 13

Division 2—Staff and consultants                                                                         14

35.......... Staff.................................................................................................. 14

36.......... Services of certain officers etc. to be made available to Agency....... 14

37.......... Consultants....................................................................................... 14

Part 5—Miscellaneous                                                                                                       15

38.......... Use of protected names and symbols............................................... 15

39.......... Application of the Audit Act 1901.................................................... 16

40.......... Annual report................................................................................... 17

41.......... Regulations....................................................................................... 17

Notes                                                                                                                                            19


An Act to establish an agency for the provision of certain Commonwealth services, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Commonwealth Services Delivery Agency Act 1997.

2  Commencement

                   This Act commences on 1 July 1997.

2A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

3  Definitions

                   In this Act, unless the contrary intention appears:

Agency means the body called the Commonwealth Services Delivery Agency established by this Act.

appointed member means a member of the Board appointed by the Minister under section 16, except a member who is the principal officer of a Commonwealth authority.

benefit includes:

                     (a)  a pension, allowance, concession or payment; and

                     (b)  a card entitling its holder to a concession or a payment of any kind.

Board means the Board of Management of the Agency.

Chairman means the Chairman of the Board.

Commonwealth authority means:

                     (a)  a Department of State; or

                     (b)  a body, other than the Agency, established for a public purpose by or under a law of the Commonwealth.

Commonwealth service means a service, benefit, program or facility for some or all members of the public that is provided for by the Commonwealth, whether under an enactment or otherwise.

employee means a member of the Agency’s staff referred to in subsection 35(1).

enactment means:

                     (a)  an Act; or

                     (b)  an instrument (including rules, regulations and by-laws) made under an Act.

member means a member of the Board, and includes the Chairman.

principal officer means:

                     (a)  for a Department of State—the person who is the Secretary of the Department for the purposes of the Public Service Act 1999; or

                     (b)  for any other Commonwealth authority—the person identified by the regulations as the principal officer of the authority.

service arrangements means arrangements entered into under section 7.

4  Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence.

5  External Territories

                   This Act extends to the Territory of Cocos (Keeling) Islands and to the Territory of Christmas Island.


 

Part 2Establishment, functions and powers of the Agency

  

6  Establishment of Agency

             (1)  A body called the Commonwealth Services Delivery Agency is established by this subsection.

             (2)  The Agency comprises:

                     (a)  the Board; and

                     (b)  the Chief Executive Officer; and

                     (c)  the employees.

7  Service arrangements

             (1)  The Chief Executive Officer may enter into arrangements with the principal officer of a Commonwealth authority for the provision of the Commonwealth services specified in the arrangements, subject to the conditions specified in the arrangements.

             (2)  Arrangements for the provision of Commonwealth services may include arrangements for doing anything incidental, conducive or related to the provision of the services, including, for example:

                     (a)  making the Chief Executive Officer or specified employees, or employees in specified classes of employees, available to exercise powers or perform functions delegated to them under specified enactments; and

                     (b)  determining a person’s eligibility for, or entitlement to receive or have access to, the services.

8  The Agency’s functions

             (1)  The Agency has the following functions:

                     (a)  the provision of Commonwealth services in accordance with service arrangements, and doing anything included in the arrangements that is incidental, conducive or related to the provision of the services;

                     (b)  any functions conferred on the Agency under any other Act;

                     (c)  any functions that the Minister, by written notice given to the Chairman, directs the Agency to perform;

                     (d)  doing anything incidental, conducive or related to the performance of any of its other functions.

             (2)  A direction under paragraph (1)(c) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

9  Ministerial directions about the performance of the Agency’s functions

             (1)  The Minister may, by written notice given to the Chairman, give directions to the Board about the performance of the Agency’s functions.

             (2)  Particulars of any directions given by the Minister under this section in a financial year must be included in the annual report for the Agency for that year.

             (3)  The Board must ensure that a direction given under this section is complied with.

10  Minister must consult the Board before giving directions

             (1)  The Minister must, before giving a direction under paragraph 8(1)(c) or section 9, by written notice given to the Chairman, ask the Board for its written advice or comments on the impact of the proposed direction on the Agency’s operations.

             (2)  The Minister must, in giving a direction, have regard to any advice or comments given under this section in relation to the direction.

             (3)  If the Minister gives a direction, particulars of any advice or comments given under this section in relation to the direction must be included in the annual report for the Agency for the financial year in which the direction was given.


 

Part 3The Board of Management of the Agency

Division 1Establishment, functions, powers and duties

11  Establishment

                   There is to be a Board of Management of the Agency.

12  The Board’s functions and powers

             (1)  Subject to this Act and any other Act, the Board’s functions are:

                     (a)  to decide the Agency’s goals, priorities, policies and strategies; and

                     (b)  to ensure that the Agency’s functions are properly, efficiently and effectively performed.

             (2)  The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

13  Ministerial directions to the Board

             (1)  The Minister may, by written notice given to the Chairman, give directions to the Board about the performance of its functions, the exercise of its powers or the conduct of its meetings, or in relation to the terms and conditions of appointment of the Chief Executive Officer.

             (2)  Particulars of any directions given by the Minister under this section in a financial year must be included in the annual report for the Agency for that year.

             (3)  The Board must comply with a direction given under this section.

14  Notification of policies

             (1)  The Minister may, by written notice given to the Chairman, notify the Board of general policies of the Commonwealth Government that are to apply in relation to the Agency, the Board or the employees.

             (2)  Particulars of any notifications given by the Minister under this section in a financial year must be included in the annual report for the Agency for that year.

             (3)  The Board must ensure that the policies are carried out.

15  Minister may ask for information

             (1)  The Minister may ask the Board for information about the operation of the Agency.

             (2)  The Board must, within a reasonable time, give the Minister the requested information.

             (3)  The Board must ensure that any information given to the Minister under this section is accurate.

16  Membership of the Board

             (1)  The Board consists of:

                     (a)  a Chairman; and

                     (b)  the Chief Executive Officer; and

                     (c)  at least 4 other members.

             (2)  At least 2 of the members mentioned in paragraph (1)(c) must be persons who are not principal officers of Commonwealth authorities.

             (3)  The members, except the Chief Executive Officer, are to be appointed by the Minister.

             (4)  The appointments are to be made on a part-time basis.

17  Acting Chairman

             (1)  The Minister may appoint a member, other than the Chief Executive Officer, to act as the Chairman:

                     (a)  during a vacancy in the office of Chairman, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Chairman is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office.

             (2)  Anything done by a person purporting to act under an appointment under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in or in connection with the appointment; or

                     (c)  the appointment had stopped having effect; or

                     (d)  the occasion for the person to act had not arisen or had stopped.

18  Delegation by the Board

             (1)  The Board may, by resolution, delegate all or any of its functions or powers to a member or to an employee.

             (2)  The delegate must, in exercising a delegated power, comply with any directions of the Board.

             (3)  A delegation under this section:

                     (a)  may be revoked by resolution of the Board (whether or not constituted by the people who constituted it when the power was delegated); and

                     (b)  continues in force in spite of a change in the membership of the Board.

19  Delegation by the Chairman

                   The Chairman may, in writing, delegate to the Chief Executive Officer or an employee all or any of the functions or powers of the Chairman.


 

Division 2Meetings

20  Meetings

             (1)  The Board must hold such meetings as are necessary for the efficient performance of its functions.

             (2)  The Chairman:

                     (a)  may convene a meeting at any time; and

                     (b)  must convene a meeting on receipt of a written request signed by at least 2 other members.

             (3)  The Minister may convene a meeting at any time.

             (4)  The Chairman must, if present at a meeting, preside at it.

             (5)  If the Chairman is not present at a meeting, the members present at the meeting must elect one of them to preside.

             (6)  A member is not entitled to vote at a meeting if the member:

                     (a)  is the principal officer of a Commonwealth authority; and

                     (b)  has entered into service arrangements that are in force.

             (7)  At a meeting, a quorum consists of a majority of the members who are entitled to vote.

             (8)  Questions arising at a meeting are to be determined by a majority of the votes of the members present and voting.

21  Disclosure of interests

             (1)  A member who has a direct or indirect pecuniary interest in a matter that is being considered, or is about to be considered, by the Board must disclose the nature of the interest at a meeting of the Board.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the member’s knowledge, and must be recorded in the minutes of the meeting.

             (3)  Unless the Board or the Minister otherwise determines, the member:

                     (a)  must not be present during any deliberation by the Board on the matter; and

                     (b)  must not take part in any decision of the Board on the matter.

             (4)  For the purposes of any determination being made under subsection (3), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates:

                     (a)  must not be present during any deliberation by the Board on whether to make the determination; and

                     (b)  must not take part in making the determination.

22  Procedure at meetings

                   Subject to this Part, the Board may regulate proceedings at its meetings as it thinks appropriate.


 

Division 3Administrative provisions

23  Period of appointment of certain members

             (1)  Subject to this Division, an appointed member holds office for the period (not longer than 3 years) specified in the instrument of appointment, but is eligible for re-appointment.

             (2)  A member who is the principal officer of a Commonwealth authority holds office during the Minister’s pleasure.

24  Remuneration and allowances of certain appointed members

             (1)  An appointed member is to be paid the remuneration determined by the Remuneration Tribunal. However, if no such determination is in operation, an appointed member is to be paid the remuneration prescribed by the regulations.

             (2)  An appointed member is to be paid the allowances prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

25  Outside employment

                   An appointed member must not engage in any paid employment that, in the Minister’s opinion, conflicts with the proper performance of the member’s duties.

26  Resignation

                   An appointed member may resign from the Board by giving the Minister a written resignation.

27  Terms and conditions not provided for by Act

                   An appointed member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as the Minister determines in writing.

28  Termination of appointment

             (1)  The Minister may terminate the appointment of an appointed member for misbehaviour or physical or mental incapacity.

             (2)  If an appointed member:

                     (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; or

                     (b)  without reasonable excuse, contravenes section 21; or

                     (c)  is absent, without reasonable excuse, from 3 consecutive meetings of the Board; or

                     (d)  has, in the Minister’s opinion, performed his or her functions as a member unsatisfactorily for a significant period;

the Minister must terminate the member’s appointment.

             (3)  If a member who is the principal officer of a Commonwealth authority stops being the principal officer of the authority, he or she stops being a member.


 

Part 4The Chief Executive Officer and employees

Division 1The Chief Executive Officer

29  Appointment

             (1)  There is to be a Chief Executive Officer of the Agency.

             (2)  The Chief Executive Officer is to be appointed by the Board in writing after consultation between the Chairman and the Minister.

             (3)  The Chief Executive Officer is to be appointed on a full-time basis.

30  Terms and conditions and termination of appointment

             (1)  The Chief Executive Officer holds office on terms and conditions, including remuneration and allowances, determined by the Board in writing.

             (2)  The Board must not make a determination under subsection (1) before it has obtained advice from the Remuneration Tribunal in relation to the terms and conditions, including remuneration and allowances, on which the Chief Executive Officer is to hold office.

             (3)  Particulars of any advice obtained from the Remuneration Tribunal under this section in a financial year must be included in the annual report for the Agency for that year.

             (4)  The Chief Executive Officer:

                     (a)  must not be present during any deliberation by the Board on the remuneration and allowances payable to the Chief Executive Officer; and

                     (b)  must not take part in any decision of the Board on the matter.

             (5)  The Board may at any time terminate the appointment of the Chief Executive Officer.

31  Acting Chief Executive Officer

             (1)  The Board may appoint a person to act as the Chief Executive Officer:

                     (a)  during a vacancy in the office of Chief Executive Officer, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office.

             (2)  Anything done by a person purporting to act under an appointment under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in or in connection with the appointment; or

                     (c)  the appointment had stopped having effect; or

                     (d)  the occasion for the person to act had not arisen or had stopped.

32  Duties

                   Subject to this Act and any other Act, the Chief Executive Officer is, under the Board, responsible for the day-to-day administration of the Agency and the control of its operations.

33  Delegation by Chief Executive Officer

                   The Chief Executive Officer may, in writing, delegate to an employee all or any of the functions or powers of the Chief Executive Officer (including functions or powers delegated to the Chief Executive Officer in accordance with service arrangements).

34  Resignation

                   The Chief Executive Officer may resign by giving the Chairman a written resignation.


 

Division 2Staff and consultants

35  Staff

             (1)  Subject to this Division, the Agency’s staff are to be persons engaged under the Public Service Act 1999.

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Chief Executive Officer and the APS employees assisting the Chief Executive Officer together constitute a Statutory Agency; and

                     (b)  the Chief Executive Officer is the Head of that Statutory Agency.

36  Services of certain officers etc. to be made available to Agency

                   The Chief Executive Officer may arrange with the principal officer of a Commonwealth authority for the services of officers or employees of the authority to be made available to the Agency.

37  Consultants

             (1)  The Chief Executive Officer may engage as consultants persons having suitable qualifications and experience.

             (2)  The terms and conditions of engagement are to be determined by the Chief Executive Officer.


 

Part 5Miscellaneous

  

38  Use of protected names and symbols

             (1)  A person must not, without the Chairman’s written consent:

                     (a)  use in relation to a business, trade, profession or occupation; or

                     (b)  use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or

                     (c)  apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or

                     (d)  use in relation to:

                              (i)  goods or services; or

                             (ii)  the promotion, by any means, of the supply or use of goods or services:

either:

                     (e)  a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or

                      (f)  the protected symbol, or a symbol so closely resembling the protected symbol as to be likely to be mistaken for it.

Penalty:  30 penalty units.

          (1A)  Subsection (1) is an offence of strict liability.

             (2)  Subsection (1), so far as it applies in relation to a particular protected name or the protected symbol, does not affect rights conferred by law on a person in relation to:

                     (a)  a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995; or

                     (b)  a design registered under the Designs Act 2003;

that was so registered, or was registered under the Designs Act 1906, at the protection time in relation to the name or symbol.

             (3)  This section, so far as it applies in relation to a particular protected name or the protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person:

                     (a)  was using the relevant name or symbol in good faith in that manner; or

                     (b)  would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first-mentioned person.

             (4)  In this section:

protected name means any of the following names:

                     (a)  “Commonwealth Services Delivery Agency”;

                     (b)  such other names as are prescribed.

protected symbol means the Agency’s official symbol, whose design is set out in the regulations.

protection time means:

                     (a)  in relation to the name “Commonwealth Services Delivery Agency”—the time immediately before the commencement of this Act; or

                     (b)  in relation to any other name—the time immediately before the commencement of the regulation prescribing the name; or

                     (c)  in relation to the protected symbol—the time immediately before the commencement of the regulation setting out the design of the symbol.

39  Application of the Audit Act 1901

             (1)  If the Audit Act 1901 is not repealed on or before the commencing day, that Act applies in relation to the Agency, until it is repealed, as if:

                     (a)  references to the Secretary were references to the Chairman of the Board of Management; and

                     (b)  references to a Department were references to the Agency; and

                     (c)  subsection 2AB(2) of that Act were repealed.

             (2)  In this section:

commencing day means the day on which this Act commences.

40  Annual report

             (1)  The Chairman must, as soon as practicable after 30 June in each year, prepare and give the Minister a report of the operations of the Agency during the year that ended on that 30 June.

             (2)  The Minister must cause a copy of each report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

41  Regulations

                   The Governor-General may make regulations 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.


Notes to the Commonwealth Services Delivery Agency Act 1997

Note 1

The Commonwealth Services Delivery Agency Act 1997 as shown in this compilation comprises Act No. 31, 1997 amended as indicated in the Tables below.

For all relevant information pertaining to application, saving or transitional provisions see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Commonwealth Services Delivery Agency Act 1997

31, 1997

17 Apr 1997

1 July 1997

 

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 325–327): 5 Dec 1999 (see Gazette 1999, No. S584) (a)

Family and Community Services Legislation Amendment (Application of Criminal Code) Act 2001

137, 2001

1 Oct 2001

2 Oct 2001

S. 4

Family and Community Services Legislation Amendment Act 2003

30, 2003

15 Apr 2003

15 Apr 2003

Designs (Consequential Amendments) Act 2003

148, 2003

17 Dec 2003

Schedules 1 and 2: (b)
Remainder: Royal Assent

Human Services Legislation Amendment Act 2005

111, 2005

6 Sept 2005

Schedule 1 (items 1–43,
62–71): [see Note 2 and Table A]

Sch. 1 (items
62–71)


(a)     The Commonwealth Services Delivery Agency Act 1997 was amended by Schedule 1 (items 325–327) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(b)    Subsection 2(1) (item 2) of the Designs (Consequential Amendments) Act 2003 provides as follows:

                 (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

2.  Schedules 1 and 2

Immediately after the commencement of section 4 of the Designs Act 2003.

17 June 2004


Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

S. 2A...................................

ad. No. 137, 2001

S. 3......................................

am. No. 146, 1999; No. 30, 2003

S. 35....................................

am. No. 146, 1999

S. 38....................................

am. No. 137, 2001; No. 148, 2003


Note 2

Human Services Legislation Amendment Act 2005 (No. 111, 2005)

The following amendments commence on 6 March 2006 unless proclaimed earlier:

Schedule 1

1  Section 3 (definition of Agency)

Omit “body called the”.

2  Section 3 (definition of appointed member)

Repeal the definition.

3  Section 3 (definition of Board)

Repeal the definition.

4  Section 3 (definition of Chairman)

Repeal the definition.

5  Section 3

Insert:

Chief Executive Officer means the Chief Executive Officer appointed under section 29.

6  Section 3 (definition of member)

Repeal the definition.

7  Part 2 (heading)

Repeal the heading, substitute:

Part 2Establishment of Agency

8  Subsection 6(1)

Omit “A body called the”, substitute “The”.

9  Paragraph 6(2)(a)

Repeal the paragraph.

10  At the end of section 6

Add:

             (3)  The Agency may also be known as Centrelink.

11  After section 6

Insert:

6A  Function of Agency

                   The function of the Agency is to assist the Chief Executive Officer in the performance of the Chief Executive Officer’s functions.

12  Before section 7

Insert:

Part 3The Chief Executive Officer

Division 1Powers and functions of Chief Executive Officer

13  Subsection 7(1)

After “may”, insert “, with the written approval of the Minister,”.

14  Subsection 7(2)

Omit all the words after “provision of the services”.

15  At the end of section 7

Add:

             (3)  Without limiting subsection (1) or (2), arrangements for the provision of Commonwealth services may include arrangements for:

                     (a)  making the Chief Executive Officer or specified employees, or employees in specified classes of employees, available to exercise powers or perform functions in connection with the provision of the services (including powers and functions delegated to the Chief Executive Officer or employees under other laws); or

                     (b)  determining a person’s eligibility for, or entitlement to receive or have access to, the services; or

                     (c)  maintaining records related to the provision of the services; or

                     (d)  providing Commonwealth authorities and other persons with information related to the provision of the services; or

                     (e)  undertaking education, compliance, investigation and enforcement activities related to the provision of the services; or

                      (f)  recovering overpayments and other amounts due to the Commonwealth in connection with the provision of the services; or

                     (g)  conducting litigation or proceedings related to the provision of the services.

             (4)  Arrangements for the provision of Commonwealth services may also include agreements covered by section 8A.

             (5)  An approval given by the Minister under this section is not a legislative instrument.

16  Subsection 8(1)

Omit “Agency” (first occurring), substitute “Chief Executive Officer”.

Note:       The heading to section 8 is replaced by the heading “Functions of Chief Executive Officer”.

17  Paragraph 8(1)(b)

Omit “Agency”, substitute “Chief Executive Officer”.

18  Paragraph 8(1)(c)

Omit “written notice given to the Chairman, directs the Agency”, substitute “writing, directs the Chief Executive Officer”.

19  Paragraph 8(1)(d)

Omit “its”, substitute “his or her”.

20  Subsection 8(2)

Repeal the subsection, substitute:

             (2)  A direction made under paragraph (1)(c) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the direction.

21  After section 8

Insert:

8A  Agreements about exercise and performance of Chief Executive Officer’s powers and functions

                   The Chief Executive Officer may enter into a written agreement with the principal officer of a Commonwealth authority about the exercise or performance of the Chief Executive Officer’s powers or functions.

22  Subsection 9(1)

Repeal the subsection, substitute:

             (1)  The Minister may, by writing, give directions to the Chief Executive Officer about the exercise or performance of the Chief Executive Officer’s powers or functions.

Note:       The heading to section 9 is altered by omitting “the performance of the Agency’s functions” and substituting “exercise and performance of Chief Executive Officer’s powers and functions”.

23  After subsection 9(1)

Insert:

          (1A)  Without limiting subsection (1), directions under this section may include directions about the following:

                     (a)  the objectives, strategies, policies or priorities of the Chief Executive Officer or the Agency;

                     (b)  the manner in which the Chief Executive Officer exercises or performs his or her powers or functions;

                     (c)  the manner in which the Agency performs its function.

          (1B)  The Minister must not give a direction under this section about the exercise or performance of powers or functions in relation to a particular individual or company.

Note:          See also section 19 of the Public Service Act 1999 which provides that an Agency Head is not subject to direction by any Minister in relation to the exercise of powers by the Agency Head under Division 1 or 2 of Part 4 of that Act in relation to particular individuals.

24  Subsection 9(2)

Omit “annual report for the Agency”, substitute “Chief Executive Officer’s annual report”.

25  Subsection 9(3)

Repeal the subsection, substitute:

             (3)  The Chief Executive Officer must comply with a direction given under this section.

             (4)  A direction given under this section is not a legislative instrument.

26  Section 10

Repeal the section, substitute:

10  Minister may request information

             (1)  The Minister may, by writing, request the Chief Executive Officer to give the Minister information about:

                     (a)  the exercise or performance of the Chief Executive Officer’s powers or functions; or

                     (b)  the operation of the Agency.

             (2)  The Chief Executive Officer must, within a reasonable time, comply with a request under this section.

             (3)  A request made under this section is not a legislative instrument.

11  Management of Agency

                   The Chief Executive Officer is, under the Minister, responsible for:

                     (a)  deciding the objectives, strategies, policies and priorities of the Agency; and

                     (b)  managing the Agency; and

                     (c)  ensuring that the Agency performs its function in a proper, efficient and effective manner.

12  Delegation

             (1)  The Chief Executive Officer may, by writing, delegate to an employee all or any of the powers or functions of the Chief Executive Officer under this Act or any other Act.

             (2)  However, the Chief Executive Officer must not delegate powers or functions conferred on him or her under another Act if the delegation is inconsistent with the express provisions of that Act.

             (3)  The Chief Executive Officer may, by writing, delegate to an employee all or any of the powers or functions delegated to the Chief Executive Officer under another Act.

             (4)  However, the Chief Executive Officer must not delegate powers or functions delegated to him or her under another Act if the delegation by the Chief Executive Officer would be inconsistent with the express provisions of that Act.

27  Part 3

Repeal the Part.

28  Part 4 (heading)

Repeal the heading.

29  Division 1 of Part 4 (heading)

Repeal the heading, substitute:

Division 2Appointment etc. of Chief Executive Officer

30  Subsection 29(2)

Omit “by the Board in writing after consultation between the Chairman and”, substitute “in writing by”.

31  At the end of section 29

Add:

             (4)  The Chief Executive Officer holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

32  Section 30

Repeal the section, substitute:

30  Remuneration

             (1)  The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is prescribed.

             (2)  The Chief Executive Officer is to be paid the allowances that are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

30A  Leave of absence

             (1)  The Chief Executive Officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Chief Executive Officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

30B  Other terms and conditions

                   The Chief Executive Officer holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister in writing.

30C  Termination of appointment

             (1)  The Minister may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity.

             (2)  The Minister may terminate the appointment of the Chief Executive Officer if:

                     (a)  the Chief Executive Officer:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the Chief Executive Officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Chief Executive Officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office.

             (3)  The Minister must terminate the appointment of the Chief Executive Officer if, in the Minister’s opinion, the performance of the Chief Executive Officer has been unsatisfactory for a significant period of time.

33  Subsection 31(1)

Omit “Board”, substitute “Minister”.

34  Subsection 31(2)

After “by”, insert “or in relation to”.

35  Paragraph 31(2)(b)

Omit “in or”.

36  Sections 32 and 33

Repeal the sections.

37   Section 34

Omit “Chairman”, substitute “Minister”.

38  Division 2 of Part 4 (heading)

Repeal the heading, substitute:

Part 4Staff of the Agency

39  Subsection 35(1)

Omit “Division”, substitute “Part”.

40  Section 36

Repeal the section.

41  Subsection 38(1)

Omit “Chairman’s”, substitute “Chief Executive Officer’s”.

42  Section 39

Repeal the section, substitute:

39  Chief Executive Officer may charge for services

                   The Chief Executive Officer may charge fees for services he or she provides in connection with the performance of his or her functions.

43  Subsection 40(1)

Repeal the subsection, substitute:

             (1)  The Chief Executive Officer must, as soon as practicable after the end of each financial year, prepare and give the Minister a report on:

                     (a)  the exercise and performance of the powers and functions of the Chief Executive Officer during that year; and

                     (b)  the operations of the Agency during that year.

Note:       The heading to section 40 is replaced by the heading “Chief Executive Officer’s annual report”.

As at 8 September 2005 the amendments are not incorporated in this compilation.


Table A

Application, saving or transitional provisions

Family and Community Services Legislation Amendment (Application of Criminal Code) Act 2001 (No. 137, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Human Services Legislation Amendment Act 2005 (No. 111, 2005)

The following provisions commence on 6 March 2006 unless proclaimed earlier:

Schedule 1

62  Definitions

(1)        In this Part:

amend includes repeal and remake.

Board means the Board within the meaning of the old law.

Centrelink means the Commonwealth Services Delivery Agency.

CEO means the Chief Executive Officer of Centrelink.

Chairman means the Chairman of the Board.

commencement time means the time when this Part commences.

instrument:

                     (a)  includes:

                              (i)  a contract, deed, undertaking or agreement; and

                             (ii)  a notice, authority, order or instruction; and

                            (iii)  an instrument made under an Act or regulations; but

                     (b)  does not include an Act or regulations.

new law means the Commonwealth Services Delivery Agency Act 1997 as in force after the commencement time.

old law means the Commonwealth Services Delivery Agency Act 1997 as in force before the commencement time.

(2)        In this Part, unless a contrary intention is expressed, a reference to a law (however described) is a reference to a law of the Commonwealth.

63  CEO to continue

The person who was the CEO immediately before the commencement time continues to be the CEO immediately after the commencement time and holds office as if:

                     (a)  his or her appointment by the Board under section 29 of the old law (the first appointment) were terminated immediately before the commencement time; and

                     (b)  he or she were appointed for the remainder of the term of his or her first appointment by the Minister under Division 2 of Part 3 of the new law immediately after the commencement time.

64  Operation of laws—things done by, or in relation to, Centrelink

(1)        If, before the commencement time, a thing was done by, or in relation to, Centrelink, the Board or the Chairman, then, for the purposes of the operation of any law after the commencement time, the thing is taken to have been done by, or in relation to, the CEO.

(2)        For the purposes of subitem (1), a thing done before the commencement time under a provision amended by this Schedule has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done.

(3)        The Minister may, by writing, determine that subitem (1):

                     (a)  does not apply in relation to a specified thing done by, or in relation to, Centrelink, the Board or the Chairman; or

                     (b)  applies as if the reference in that subitem to the CEO were a reference to the Commonwealth or to Centrelink.

A determination under this subitem has effect accordingly.

(4)        The regulations may provide for a thing specified in a determination under paragraph (3)(a) to be taken to have been done by, or in relation to, a person or body other than the CEO, the Commonwealth or Centrelink.

(5)        To avoid doubt, for the purposes of this item, doing a thing includes making an instrument.

(6)        A determination made under subitem (3) is not a legislative instrument.

65  References in instruments

(1)        If:

                     (a)  an instrument is in force immediately before the commencement time; and

                     (b)  the instrument contains a reference to Centrelink (however described), the Board or the Chairman;

the instrument has effect from the commencement time as if the reference to Centrelink, the Board or the Chairman were a reference to the CEO.

(2)        The Minister may, by writing, determine that subitem (1):

                     (a)  does not apply in relation to a specified reference; or

                     (b)  applies as if the reference in that subitem to the CEO were a reference to the Commonwealth or to Centrelink.

A determination under this subitem has effect accordingly.

(3)        The regulations may provide that an instrument containing a reference specified in a determination under paragraph (2)(a) has effect from the commencement time as if the reference were a reference to a person or body other than the CEO, the Commonwealth or Centrelink.

(4)        A determination made under subitem (2) is not a legislative instrument.

66  Transfer of records

At the commencement time, the records and documents of Centrelink become the records and documents of the CEO.

67  Financial statements and other reporting requirements

Financial statements

(1)        If:

                     (a)  immediately before the commencement time, a law required Centrelink, the Board or the Chairman to provide financial statements for a period; and

                     (b)  the period ends after the commencement time;

the CEO must, within 3 months after the commencement time, provide the statements for so much of the period as occurs before the commencement time.

Other reporting requirements

(2)        If:

                     (a)  immediately before the commencement time, a law required Centrelink, the Board or the Chairman to provide a report (other than financial statements) for a period; and

                     (b)  the period ends after the commencement time;

the CEO must provide the report, as required, for so much of the period as occurs before the commencement time.

(3)        If:

                     (a)  under subitem (2), the CEO is required to provide a report for a part of a period; and

                     (b)  the CEO is also required to provide a similar report for the remainder of the period;

the CEO may meet the requirements in a single report for the period.

Outstanding reporting requirements

(4)        If:

                     (a)  a law required Centrelink, the Board or the Chairman to provide a report (whether financial statements or otherwise) for a period that ended before the commencement time; and

                     (b)  the report has not been provided by the commencement time;

the CEO must provide the report as required.

68  Substitution of parties to proceedings

If, immediately before the commencement time, any proceedings to which Centrelink, the Board or the Chairman was a party were pending in any court or tribunal, then, from the commencement time, the CEO is substituted for Centrelink, the Board or the Chairman as a party to the proceedings.

69  Constitutional safety net—acquisition of property

(1)        If:

                     (a)  a provision of this Schedule would result in an acquisition of property; and

                     (b)  the provision would not be valid, apart from this item, because a particular person has not been compensated;

the Commonwealth must pay that person:

                     (c)  a reasonable amount of compensation agreed on between the person and the Commonwealth; or

                     (d)  failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

(2)        Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this item must be taken into account in assessing compensation payable in a proceeding begun under this item and arising out of the same event or transaction.

(3)        In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

70  Delegation by Minister

(1)        The Minister may, by writing, delegate all or any of his or her powers and functions under this Part to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee, or acting SES employee, in the Department; or

                     (c)  the CEO.

(2)        In exercising or performing powers or functions under a delegation, the delegate must comply with any directions of the Minister.

(3)        A power delegated to the CEO under subitem (1) must not be sub-delegated under subsection 12(3) of the new law.

71  Regulations

(1)        The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Schedule to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.

(2)        In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.