Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law relating to the governance, performance and accountability of, and the use and management of resources by, the Commonwealth, Commonwealth entities and Commonwealth companies, and to deal with consequential and transitional matters in connection with the Public Governance, Performance and Accountability Act 2013, and for other purposes
Administered by: Finance
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 22 Jun 2017
Introduced HR 22 Jun 2017
Table of contents.

 

 

2016-2017

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Public Governance and resources legislation amendment Bill (No. 1) 2017

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Finance,
Senator the Hon Mathias Cormann)


TABLE OF CONTENTS

Table of abbreviations and common terms. 4

GENERAL OUTLINE.. 5

Application and transitional provisions. 5

Amendment to the PGPA Act 5

The Bill in the context of broader reform activities. 5

Consultation. 5

Structure of the Bill 6

Main features of the Bill 6

FINANCIAL IMPACT STATEMENT. 7

NOTES ON CLAUSES. 8

Notes on Schedule 1 – Listed entities. 9

Introduction. 9

Anti-Money Laundering and Counter-Terrorism Financing Act 2006. 9

Competition and Consumer Act 2010. 9

Notes on Schedule 2 – Amendments relating to the Public Governance, Performance and Accountability Act 2013  10

Introduction. 10

Part 1 – Consequential amendments. 10

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006. 10

Australian Renewable Energy Agency Act 2011. 10

Building and Construction Industry (Consequential and Transitional Provisions)
Act 2016
. 11

Building and Construction Industry (Improving Productivity) Act 2016. 12

Classification (Publications, Films and Computer Games) Act 1995. 14

Clean Energy Finance Corporation Act 2012. 14

Competition and Consumer Act 2010. 15

Public Service Act 1999. 17

Tertiary Education Quality and Standards Agency Act 2011. 17

Part 2 – Other amendments. 17

Public Governance, Performance and Accountability Act 2013. 17

Notes on Schedule 3 – Amendments consequential on the sale of Medibank Private. 18

Introduction. 18

Health Insurance Commission (Reform and Separation of Functions) Act 1997. 18

Privacy Act 1988. 18

Remuneration Tribunal Act 1973. 19

Notes on Schedule 4 – Transitional and application provisions. 20

Introduction. 20

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS. 21

 


 

Table of abbreviations and common terms

Abbreviation or common term

Full term or description

CAC Act

Commonwealth Authorities and Companies Act 1997

Commonwealth entity

An entity as defined in section 10 of the Public Governance, Performance and Accountability Act 2013

FMA Act

Financial Management and Accountability Act 1997

Finance Minister

The Minister with responsibility for administering the PGPA Act

PGPA Act

Public Governance, Performance and Accountability Act 2013

PGPA (C&T) Act

Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014

PGRLA Act

Public Governance and Resources Legislation Amendment Act (No. 1) 2015

Rules or PGPA rules

The rules made under Part 4-1 of the PGPA Act


 

Public Governance and Resources Legislation Amendment Bill (No. 1) 2017

GENERAL OUTLINE

1.      The Public Governance and Resources Legislation Amendment Bill (No. 1) 2017 (the Bill) would, if enacted, amend 13 Acts across the Commonwealth to harmonise them with the Public Governance, Performance and Accountability Act 2013
(PGPA Act) and its related rules and instruments.

2.      This Bill makes amendments to:

·         consistently prescribe listed entities for the purposes of the PGPA Act within entities’ enabling legislation;

·         repeal provisions covering issues now provided for by the PGPA Act, such as disclosure of interests and annual reporting requirements; and

·         update references in legislation from the Financial Management and Accountability Act 1997 (FMA Act) and the Commonwealth Authorities and Companies Act 1997 (CAC Act) to the PGPA Act.

3.      The Bill would also make minor amendments to legislation consequential to the sale of Medibank Private Limited (MPL) in 2014.

Application and transitional provisions

4.      The Bill includes application and transitional provisions that provide clarity in relation to provisions contained in Schedule 2 relating to annual reports, disclosure of interests, saving instruments in force at commencement, and amendments to legislative instruments.

Amendment to the PGPA Act

5.      The Bill would also amend paragraph 107(2)(a) of the PGPA Act to correct a typographical error in the Act.

The Bill in the context of broader reform activities

6.      The PGPA Act was enacted to provide a strong foundation for a modern, streamlined and adaptable Commonwealth public sector. It consolidated the governance, performance and accountability requirements for the Commonwealth within one Act, replacing the FMA and CAC Acts.

7.      Following on from this, the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 (PGPA (C&T) Act) was enacted to support the implementation of the PGPA Act and its associated rules and instruments. 

8.      However, due to the complex nature of amendments required to a broad suite of enabling legislation, some matters were not able to be addressed in the PGPA (C&T) Act. 

9.      This Bill ensures improved consistency between other Acts and the PGPA Act.

10.  This Bill also contains amendments to legislation following the sale of MPL in 2014.

Consultation

11.  The PGPA Act was implemented following two and a half years of consultation and consideration of issues. The PGPA (C&T) Act was also developed in consultation with Commonwealth entities over the course of 2013-2014, and many of the amendments included in this Bill were identified during those consultations. The period following the passage of these Acts has provided an opportunity for reflection and consultation on the operation of the provisions of the Acts, and associated rules. In this context, the Bill has been developed to make further improvements to the operation of the Commonwealth’s resource management framework.

12.  The Bill was prepared in consultation with affected Commonwealth entities to help ensure that amendments to enabling legislation harmonise arrangements with the general application of the PGPA Act while maintaining current policy intentions.  

Structure of the Bill

13.  The Bill is structured in the following schedules:

·           Schedule 1 – Listed entities;

·           Schedule 2 – Amendments relating to the Public Governance, Performance and Accountability Act 2013;

·           Schedule 3 – Amendments consequential on the sale of Medibank Private; and

·           Schedule 4 – Transitional and application provisions.

Main features of the Bill

14.  The Bill would:

·           improve alignment between the PGPA Act and enabling legislation; and

·           make amendments to legislation following the sale of MPL in 2014.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FINANCIAL IMPACT STATEMENT

15.  The Bill would amend the enabling legislation of Commonwealth entities to ensure the legislation operates harmoniously with the PGPA Act.

16.  It is expected that harmonisation of regulatory requirements will contribute to efficiencies in governance, transparency and accountability arrangements for Commonwealth entities within the Australian Government.

 

 

 

 






 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NOTES ON CLAUSES

Clause 1 – Short title

1.             Under this clause, if the Bill is enacted, it may be cited as the Public Governance and Resources Legislation Amendment Act (No. 1) 2017.

Clause 2 – Commencement

2.             Under this clause, if the Bill is enacted, then the legislation will commence on the day after the Bill receives the Royal Assent.

Clause 3 – Schedules

3.             The items set out in Schedule 1 would amend the enabling legislation of listed entities.

4.             The items set out in Schedule 2 would make amendments relating to the PGPA Act.

5.             The items set out in Schedule 3 would make technical amendments following the sale of MPL in 2014.

6.             The items set out in Schedule 4 provide for application and transitional provisions.

 


 

Notes on Schedule 1 – Listed entities

Introduction

7.             Schedule 1 contains amendments to two pieces of legislation with the effect of prescribing two entities as listed entities for the purposes of the PGPA Act within those Acts, consistent with preferred drafting conventions.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

8.             Item 1 would amend section 209 of the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006
(AMLCTF Act) to prescribe the Australian Transaction Reports and Analysis Centre (AUSTRAC) as a listed entity, the AUSTRAC Chief Executive Officer (AUSTRAC CEO) as the accountable authority of AUSTRAC, certain people as officials of AUSTRAC for the purposes of the PGPA Act as well as outline the purposes of AUSTRAC including, the functions of both AUSTRAC and the AUSTRAC CEO. AUSTRAC is currently prescribed as a listed entity at item 3 of Schedule 1 of the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule). This amendment would transfer the listing to primary legislation. The PGPA Rule would be amended to remove the listing upon passage of the Bill.

Competition and Consumer Act 2010

9.             Item 2 would amend section 29A of the Competition and Consumer Act 2010 (CC Act) to insert ‘(1)’ before ‘The’. This amendment reflects the addition of another subsection described at item 3.

10.         Item 3 would amend section 29A of the CC Act to prescribe the National Competition Council (the Council) as a listed entity, the Council President as the accountable authority of the Council, certain people as officials of the Council for the purposes of the PGPA Act as well as outline that the purposes of the Council including the functions of the Council. The Council is currently prescribed as a listed entity at item 14 of Schedule 1 of the PGPA Rule. This amendment would transfer the listing to primary legislation. The PGPA Rule would be amended to remove the listing upon passage of the Bill.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notes on Schedule 2 – Amendments relating to the Public Governance, Performance and Accountability Act 2013

Introduction

11.         Schedule 2 contains amendments to ten pieces of legislation to align and harmonise their operation with the PGPA Act. 

Part 1 – Consequential amendments

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006

12.         The proposed amendments to the AMLCTF Act would harmonise arrangements involving annual reporting and disclosure of interest requirements with sections 29 and 46 of the PGPA Act. 

13.         Item 1 would repeal section 218 of the AMLCTF Act to align the AUSTRAC CEO disclosure of interest requirements with section 29 of the PGPA Act. 

14.         Item 2 would repeal paragraph 219(2)(d) of the AMLCTF Act and substitute a new paragraph allowing the Minister to terminate the appointment of the AUSTRAC CEO for failing to comply, without reasonable excuse, with section 29 of the PGPA Act (which deals with the duty to disclose interests) or the rules made for the purposes of section 29 of the PGPA Act. This amendment follows from the amendment at item 1.   

15.         Item 3 would amend subsection 219(3) of the AMLCTF Act to omit ‘whether because a notification under section 218 or otherwise’ and substitute ‘whether because of a disclosure under section 29 of the Public Governance Performance and Accountability Act 2013 or otherwise’. This amendment follows from item 1 that repeals section 218 of the AMLCTF Act to align the AUSTRAC CEO’s disclosure of interest requirements with section 29 of the PGPA Act.

16.         Item 4 would repeal Division 5 of Part 16 of the AMLCTF Act that provides the AUSTRAC CEO’s annual reporting requirements and the Ministers power to require the AUSTRAC CEO to prepare a report relating to the performance of the CEO’s functions. Section 46 of the PGPA Act now sets out annual reporting requirements for AUSTRAC, and the division is no longer required.

Australian Renewable Energy Agency Act 2011

17.         The proposed amendments to the Australian Renewable Energy Agency Act 2011 (ARENA Act) would harmonise arrangements involving annual reporting and disclosure of interest requirements with the PGPA Act; and would update definition and references to align with the PGPA Act. 

18.         Item 5 would amend section 4 of the ARENA Act to update the definition of
‘Finance Minister’ by omitting a reference to the FMA Act and substituting a reference to the PGPA Act.

19.         Item 6 would repeal the note to subsection 7(2) of the ARENA Act and substitute a new note to update the reference from the FMA Act to the PGPA Act.

20.         Item 7 would repeal section 36 of the ARENA Act relating to Board members’ disclosure of interest requirements and substitute a new section 36 to align Board members’ disclosure of interest requirements with section 29 of the PGPA Act.

21.         Item 8 would amend paragraph 38(2)(b) of the ARENA Act to omit ‘or’ and substitute ‘.’. This is a technical amendment related to the amendment at item 9 below.

22.         Item 9 would repeal paragraphs 38(2)(c) and (d) of the ARENA Act, which refer to the termination of the appointment of an appointed member for failing to satisfy disclosure of interest requirements and failing to comply with provisions of the CAC Act. This amendment is consequential to the amendment at item 7 and the repeal of the CAC Act.

23.         Item 10 would insert a note to the end of subsection 38(2) of the ARENA Act to reference the applicability of section 30 of the PGPA Act in terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials. The Board of the Australian Renewable Energy Agency (ARENA) is the accountable authority of ARENA and each appointed member is a member of the accountable authority.

24.         Item 11 would amend paragraph 43(2)(a) of the ARENA Act to omit a reference to the now repealed CAC Act and substitute a reference to section 29 of the PGPA Act.

25.         Item 12 would repeal section 57 and substitute a new section 57 that aligns the ARENA Chief Executive Officer’s disclosure of interest requirements with section 29 of the PGPA Act.

26.         Item 13 would amend paragraph 59(3)(c) to omit a reference to section 57 of the ARENA Act and substitute a reference to section 29 of the PGPA Act relating to disclosure of interest requirements. This follows from item 12 that repeals section 57 of the ARENA Act.

27.         Item 14 would repeal subsection 67(4) of the ARENA Act to remove the redundant reference to the CAC Act and substitute a new subsection 67(4) to refer to section 59 of the PGPA Act relating to investment by corporate Commonwealth entities.

28.         Item 15 would repeal section 68 of the ARENA Act that provides money held by ARENA is not ‘public money’. There is no longer a need to clarify the status of ARENA’s money. The PGPA Act replaced the concept of ‘public money’ with that of
‘relevant money’. Money in the possession of ARENA or in an ARENA bank account is ‘relevant money’ for the purposes of the PGPA Act.

29.         Item 16 would amend section 70 of the ARENA Act to omit the reference to section 9 of the CAC Act and substitute a reference to section 46 of the PGPA Act relating to the annual report requirements for accountable authorities of Commonwealth entities.

30.         Items 17, 18 and 19 would amend paragraphs 70(a) to (d) of the ARENA Act to omit references to ‘years’ and substitute references to ‘periods’. These amendments would align the terminology in the ARENA Act relating to annual reporting periods with the terminology of the PGPA Act.  

Building and Construction Industry (Consequential and Transitional Provisions) Act 2016

31.         The proposed amendments to the Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 (BCICT Act) would make changes to terminology and update a redundant reference to ‘Commonwealth authority’.

32.         Item 20 would replace ‘report under’ with ‘report referred to in’ in subitem 3(1) of Schedule 2 of the BCICT Act. This is a technical amendment to the BCICT Act.

33.         Item 21 would replace ‘to the Minister a report in accordance with that section’ with ‘such a report to the Minister’ in subitem 3(1) of Schedule 2 of the BCICT Act. This is a technical amendment to the BCICT Act.

34.         Item 22 would replace ‘report under’ with ‘annual report referred to in’ in subitem 3(2) of Schedule 2 of the BCICT Act. This is a technical amendment to the BCICT Act.

35.         Item 23 would amend the table in subitem 11(2) of Schedule 2 of the BCICT Act to omit ‘Commonwealth authority’ and substitute ‘corporate Commonwealth entity’. This amendment would update the terminology in the BCICT Act with terminology in the
PGPA Act.

Building and Construction Industry (Improving Productivity) Act 2016

36.         The proposed amendments to the Building and Construction Industry (Improving Productivity) Act 2016 (the BCIIP Act) would replace redundant CAC Act terminology with PGPA Act terminology and align annual reporting and disclosure of interest requirements with the requirements of the PGPA Act.

37.         The proposed amendments would also prescribe the Australian Building and Construction Commission (ABCC) as a listed entity for the purposes of the PGPA Act within the BCIIP Act.

38.         Item 24 would amend section 4 of the BCIIP Act to omit ‘Commonwealth authority’ and substitute ‘corporate Commonwealth entity’. This amendment would harmonise the BCIIP Act’s terminology with the PGPA Act.

39.         Item 25 would repeal the redundant definition of ‘Commonwealth authority’ in section 5 of the BCIIP Act. This amendment would harmonise the BCIIP Act’s terminology with the PGPA Act.

40.         Item 26 would amend the definition of ‘constitutionally-covered entity’ in section 5 of the BCIIP Act to omit ‘Commonwealth authority’ and substitute ‘corporate Commonwealth entity’. This amendment would harmonise the BCIIP Act’s terminology with the PGPA Act.

41.         Item 27 would amend section 5 of the BCIIP Act to insert the definition of corporate Commonwealth entity. Corporate Commonwealth entity has the same meaning provided in the PGPA Act.

42.         Item 28 would amend subsection 20(1A) of the BCIIP Act to add a reference to
‘(a quarterly report)’ after ‘report’. This signifies that there is to be a quarterly report prepared and produced by the Australian Building and Construction Commissioner (Commissioner) for the Minister at the end of each quarter. The quarterly report is to be distinguished from the annual report which the Commissioner must prepare and produce under section 46 of the PGPA Act. The quarterly reports and the annual reports are separate reports.

43.         Item 29 would repeal subsection 20(1) of the BCIIP Act to harmonise the Commissioner’s annual reporting requirements with section 46 of the PGPA Act.

44.         Item 30 would amend subsection 20(2) of the BCIIP Act to omit reference to subsections 20(1A) and (1) and substitute a reference to each quarterly report and the annual report prepared by the Commissioner under section 46 of the PGPA Act. This follows the proposed amendment to subsection 20(1A) and repeal of subsection 20(1) at item 28 and item 29. The quarterly and annual reports must contain the particulars listed in subsection 20(2) and are not to be consolidated, but must be prepared and provided to the Minister separately.

45.         Item 31 would amend subsection 20(2) of the BCIIP Act to omit the references to ‘year’ and replace them with references to ‘period’. This would align the BCIIP Act’s terminology with the terminology of the PGPA Act in relation to annual reporting periods.

46.         Item 32 would amend subsection 20(3) of the BCIIP Act to omit ‘The report’ and substitute ‘Each quarterly report, and each annual report for a period’. This amendment would differentiate between the reports and further indicate that quarterly reports and annual reports are mutually exclusive.

47.         Item 33 would amend subsection 20(3) of the BCIIP Act to omit the references to ‘year’ and replace them with references to ‘period’. This would align the BCIIP Act’s terminology with the terminology of the PGPA Act in relation to annual reporting periods.

48.         Item 34 would amend subsection 20(4) of the BCIIP Act to omit ‘the report’ and substitute ‘a quarterly report or an annual report’. This would differentiate between the reports and further indicate that quarterly reports and annual reports are mutually exclusive.

49.         Item 35 would amend subsection 20(5) of the BCIIP Act to omit ‘the report’ and substitute ‘each quarterly report and each annual report’. This would differentiate between the reports and further indicate that quarterly reports and annual reports are mutually exclusive.

50.         Item 36 would repeal section 26 of the BCIIP Act and substitute a new section 26 aligning the Commissioner’s disclosure of interest requirements with section 29 of the PGPA Act. This amendment clarifies that a disclosure made under section 29 of the PGPA Act must be made to the Minister and a failure to comply with this requirement will be taken as a failure to comply with section 29 of the PGPA Act.

51.         Item 37 would repeal paragraph 28(2)(d) of the BCIIP Act to remove a reference to section 26 of the Act and substitute a reference to section 29 of the PGPA Act relating to disclosure of interest. This amendment follows from the repeal of section 26 at item 36.

52.         Item 38 would add a new subsection 29(3) to the end of section 29 of the BCIIP Act to prescribe the ABCC as a listed entity for the purposes of the PGPA Act. This provision replicates the listing in the PGPA Rule that would be repealed upon passage of the Bill. Listing the ABCC in its enabling legislation better reflects listing convention, and centralises key ABCC governance provisions.

53.         Items 39 to 44 would amend the BCIIP Act to omit ‘Commonwealth authority’ and substitute ‘corporate Commonwealth entity’ to align with the terminology of the PGPA Act.

54.         Item 45 would amend subsection 81(7) in the BCIIP Act to remove a redundant reference to the FMA Act.

55.         Item 46 would amend the end of the paragraph 106(5)(c) to add
‘of this Act or section 46 of the Public Governance, Performance and Accountability Act 2013 (which deals with annual reports)’. This is to clarify the application of the requirements in section 46 of the PGPA Act in determining the exceptions to disclosure in subsection 106(3) of the BCIIP Act.

56.         Item 47 would repeal the heading in subsection 106(6) of the BCIIP Act and substitute ‘Disclosure in certain reports’. This is consequential to the amendments at items 28 to 35.

57.         Item 48 would amend paragraph 106(6)(a) of the BCIIP Act to omit ‘under’ and substitute ‘referred to in’. This is a technical amendment to the BCIIP Act.

58.         Item 49 would amend subsection 107(1) of the BCIIP Act to omit ‘under’ and substitute ‘referred to in’. This is a technical amendment to the BCIIP Act.

Classification (Publications, Films and Computer Games) Act 1995

59.         Item 50 would amend the note to subsection 22CG(2) in the Classification (Publications, Films and Computer Games) Act 1995 to omit ‘, or a Commonwealth authority or agency’ and substitute ‘or a Commonwealth entity’ to align the Act with the terminology of the PGPA Act.

Clean Energy Finance Corporation Act 2012

60.         Item 51 and item 52 would amend the definitions of ‘Finance Minister’ and ‘subsidiary’ in section 4 of the Clean Energy Finance Corporation Act 2012 (CEFC Act) to omit redundant references to ‘Commonwealth Authorities and Companies Act 1997’ and substitute references to ‘Public Governance, Performance and Accountability Act 2013’. These amendments would update the statute book to remove redundant references to obsolete legislation.

61.         Item 53 would repeal the note to subsection 8(2) of the CEFC Act which references the CAC Act and substitute a new note which references the PGPA Act.

62.         Item 54 would repeal paragraph 23(e) of the CEFC Act to remove redundant references to sections of the CAC Act.

63.         Item 55 would insert a note to the end of section 23 of the CEFC Act to reference section 30 of the PGPA Act as another mechanism through which the Minister may terminate the appointment of a Board member.

64.         Item 56 would amend paragraph 27(2)(a) of the CEFC Act to omit ‘section 27J of the Commonwealth Authorities and Companies Act 1997’ and substitute ‘rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013’. This amendment replaces outdated references to obsolete legislation to align with the
PGPA Act.

65.         Item 57 would repeal section 39 of the CEFC Act and substitute a new section 39 to provide that the Chief Executive Officer’s (CEFC CEO) disclosure of interests must be made to the Board and that a failure to do so would be a failure to comply with section 29 of the PGPA Act. This would align the CEFC CEO’s disclosure of interest requirements with the PGPA Act.

66.         Item 58 would amend subsection 45(2) of the CEFC Act to omit ‘Special Account for the purposes of the Financial Management and Accountability Act 1997’ and substitute ‘special account for the purposes of the Public Governance, Performance and Accountability Act 2013’. This amendment replaces outdated references to obsolete legislation to align with the PGPA Act.

67.         Item 59 would repeal subsection 53(3) of the CEFC Act and substitute a new subsection 53(3) to update a redundant reference to the CAC Act with a reference to section 59 of the PGPA Act relating to investment by corporate Commonwealth entities.

68.         Item 60 would amend subsection 55(1) of the CEFC Act to add a reference to the applicability of section 57 of the PGPA Act in relation to borrowing by corporate Commonwealth entities.

69.         Item 61 would repeal subsection 55(4) of the CEFC Act to remove a redundant reference to the CAC Act.

70.         Item 62 would amend subsection 55(6) of the CEFC Act to omit ‘Section 29 of the Commonwealth Authorities and Companies Act 1997’ and substitute ‘Section 86 of the Public Governance, Performance and Accountability Act 2013 (which deals with subsidiaries of corporate Commonwealth entities)’. This amendment replaces outdated references to obsolete legislation to align with the PGPA Act.

71.         Item 63 would amend subsection 73(1) of the CEFC Act to omit ‘paragraph 16(1)(b) or (c) of the Commonwealth Authorities and Companies Act 1997’ and substitute ‘paragraph 19(1)(b) of the Public Governance, Performance and Accountability Act 2013’. This amendment replaces outdated references to obsolete legislation to align with the PGPA Act.

72.         Item 64 would amend subsection 74(1) of the CEFC Act to omit ‘Each annual report on the Corporation under section 9 of the Commonwealth Authorities and Companies Act 1997’ and substitute ‘The annual report prepared by the Board and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period’. This amendment replaces outdated references to obsolete legislation to align with the PGPA Act.

73.         Item 65 and item 66 would amend subsection 74(1) and (2) of the CEFC Act to omit the references to ‘financial year’ (wherever occurring) and substitute references to ‘period’. These amendments would update references to reflect the terminology used in relation to annual reporting periods in the PGPA Act.

Competition and Consumer Act 2010

74.         Item 67 would add a note to section 7 of the Competition and Consumer Act 2010
(CC Act) to reference the Chairperson’s power to enter into contracts and other arrangements on behalf of the Commonwealth in accordance with section 23 of the PGPA Act. The Chairperson is the accountable authority of the Australian Competition and Consumer Commission (Commission). 

75.         Item 68 would amend subsection 8A(7) of the CC Act to omit ‘under’ and substitute ‘referred to in’. This is a technical amendment to the CC Act.

76.         Item 69 would amend subsection 8AB(1) of the CC Act to omit ‘A State/Territory’ and substitute ‘For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, a State/Territory’. This amendment clarifies the application of the PGPA Act.

77.         Item 70 would amend subsection 8AB(2) relating to disclosure of interests to omit ‘14, 15 and 17’ and substitute ‘14 and 15 and for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013’. This amendment follows the amendment at item 74 amending section 17 of the CC Act to reflect the applicability of section 29 of the PGPA Act relating to disclosure of interest requirements.  

78.         Item 71 would add ‘or’ to the end of paragraph 13(2)(a) of the CC Act. This is a typographical amendment to the CC Act.

79.         Item 72 would repeal paragraph 13(2)(b) and substitute a new paragraph 13(2)(b) that provides that the Governor-General shall terminate the appointment of a member, including the Chairperson, if he or she fails comply with section 29 of the PGPA Act (which deals with the duty to disclose interests), and the rules made for the purposes of that section. The new paragraph also provides that the Governor-General shall terminate the appointment of the Chairperson if he or she fails to comply with section 17 of the CC Act. This amendment follows the amendment to section 17 of the CC Act at item 74.

80.         Item 73 would amend paragraph 14(2)(b) of the CC Act to omit ‘section 17’ and substitute a reference to section 29 of the PGPA Act relating to disclosure of interests. This amendment follows the amendment to section 17 of the CC Act at item 74.

81.         Item 74 would repeal section 17 of the CC Act and substitute a new section 17 and section 17A, separating disclosure of interest requirements of the Chairperson and other members. Section 17 requires the Chairperson, in addition to section 29 of the PGPA Act, to give written notice to the Minister of all pecuniary interests that the Chairperson has or acquires. Section 17A provides that members who have pecuniary interests brought to the attention of the Chairperson must gain the consent of each person concerned in the matter before taking part, or continuing to take part, in the determination of the matter. Under section 17A, the Chairperson becomes aware of a member’s pecuniary interest as a result of the rules made for the purposes of section 29 of the PGPA Act. Section 17A also removes the Chairperson’s ability to direct a member to not take part, or to stop taking part, in the determination of a matter despite receiving the consent of all persons concerned in the matter.

82.         Item 75 would repeal paragraph 29H(2)(b) of the CC Act and substitute a new paragraph 29H(2)(b) replacing the disclosure of interest requirements of Councillors with a reference to section 29 of the PGPA Act. This amendment follows the repealing of section 29K of the CC Act at item 76.   

83.         Item 76 would repeal section 29K of the CC Act that provides the disclosure of interest requirements for Councillors. This amendment would align the CC Act with the disclosure of interest requirements under section 29 of the PGPA Act.

84.         Item 77 would repeal subsection 29O(1) of the CC Act which provides the Council’s obligation to report on its annual operations to the Minister. The amendment would align the Council’s annual reporting requirements with section 46 of the PGPA Act.

85.         Item 78 would amend section 29O(2) of the CC Act to omit ‘(2) The report must also’ and substitute a reference to ‘An annual report prepared by the Council President and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must’. This amendment follows from the preceding amendment to subsection 29O(1) to align reporting obligations with those prescribed under the PGPA Act.

86.         Item 79 would add a new subsection (3) and note to section 44AY of the CC Act to clarify that the disclosure requirements in section 29 of the PGPA Act do apply to an Australian Energy Regulator Member when he/she is acting in his or her capacity as an Associate Member of the Commission, but not when he or she is acting in his or her capacity as an Australian Energy Regulator Member.

87.         Item 80 would repeal the note to subsection 60Q(7) of the CC Act and substitute a new note referencing section 77 of the PGPA Act relating to repayments by the Commonwealth. This amendment would remove a redundant reference to the FMA Act.

88.         Item 81 would repeal subsection 171(1) of the CC Act to align the timing of the provision of the Commission’s annual report with that prescribed under the PGPA Act.

89.         Item 82 would amend subsection 171(2) of the CC Act to omit ‘The report’ and substitute ‘An annual report prepared by the Chairperson and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period’. This amendment follows from the preceding amendment at item 77.

Public Service Act 1999

90.         Item 83 would repeal section 44 of the Public Service Act 1999 (PS Act) and substitute a new section that separates the requirement for the Australian Public Service Commissioner
(APS Commissioner) to report on the state of the APS during the year and present this report to the Parliament, from the annual reporting requirements for the APS Commissioner. Following the amendment, section 44 would provide for the preparation and production of the State of the APS report and section 46 of the PGPA Act would provide the
APS Commissioner’s annual reporting requirements.

91.         Item 84 would repeal subsection 51(2) of the PS Act to remove a reference to an obsolete requirement for the Merit Protection Commissioner’s annual report to be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit (JCPAA). The annual reporting requirements for commonwealth entities are now contained in section 46 of the PGPA Act and Division 3A of the PGPA Rule, which are approved on behalf of the Parliament by the JCPAA.  

92.         Item 85 would amend subsection 51(3) of the PS Act to omit ‘report under subsection 44(1)’ and substitute ‘annual report’ to remove the reference to the need for the Merit Protection Commissioner’s annual report to be included in the APS Commissioner’s annual report under subsection 44(1). This is consequential to amendment to section 44 at item 83.

93.         Item 86 would repeal section 63 of the PS Act relating to the annual reporting requirements of Secretaries of Departments (Departmental Secretaries). The annual reporting requirements of Departmental Secretaries are now contained in section 46 of the PGPA Act and Division 3A of the PGPA Rule, which are approved on behalf of the Parliament by the JCPAA.

94.         Item 87 would repeal section 70 of the PS Act relating to the annual reporting requirements of Heads of Executive Agencies. The annual reporting requirements for Heads of Executive Agencies are now contained in section 46 of the PGPA Act and Division 3A of the PGPA Rule, which are approved on behalf of the Parliament by the JCPAA. This would have no impact on the annual reporting requirements of Executive Agencies that are also listed entities for the purposes of the PGPA Act. This is historically and currently the case for all Executive Agencies. If a circumstance were to arise where an Executive Agency is not listed for the purposes of the PGPA Act, the Executive Agency would report within the annual report of the relevant Department of State.

Tertiary Education Quality and Standards Agency Act 2011

95.         Item 88 would amend paragraph 155A(a) of the Tertiary Education Quality and Standards Agency Act 2011 to omit the redundant reference to the FMA Act and substitute a reference to the PGPA Act.

Part 2 – Other amendments

Public Governance, Performance and Accountability Act 2013

96.         Item 89 would amend paragraph 107(2)(a) of the PGPA Act to correct a typographical error in the Act. The reference to subsection 57(b) in paragraph 107(2)(a) would be replaced with a reference to paragraph 57(1)(b). Subsection 57(b) does not exist. Paragraph 57(1)(b) provides that an agreement to borrow money by a corporate Commonwealth entity is of no effect unless it has been authorised by the Finance Minister.

Notes on Schedule 3 – Amendments consequential on the sale of Medibank Private

Introduction

97.         This Schedule to the Bill contains amendments to three Commonwealth Acts that would update the statute book to reflect the sale of MPL in 2014.

Health Insurance Commission (Reform and Separation of Functions) Act 1997

98.         Item 1 would amend subsection 47(1) of the Health Insurance Commission (Reform and Separation of Functions) Act 1997 (HIC Act) to repeal the reference to ‘section 45’ of the HIC Act.

99.         Item 2 would amend subsection 47(1) of the HIC Act to omit the first note referencing section 45 of the HIC Act.

100.     Item 3 would repeal the second note to subsection 47(1) of the HIC Act referencing section 45.

101.     Item 4 would repeal subsection 47(4) of the HIC Act to remove reference to section 45 of the HIC Act.

102.     The above four items amending the HIC Act follow the repeal of section 45 of the
HIC Act by the Medibank Private Sale Act 2006. Section 45 modified the application of the
Corporations Act 2001 on the nominated company, Health Services Australia Limited
(HSA Limited). The amendments are technical in nature and remove redundant references to a repealed section of the HIC Act.

Privacy Act 1988

103.     Item 5 would repeal paragraph 6(1)(j) of the Privacy Act 1988 (Privacy Act) to remove ‘the nominated AGHS company’ from the definition of ‘agency’.

104.     Item 6 would repeal paragraph 6(1)(b) of the Privacy Act to remove ‘the nominated AGHS company’ from the definition of ‘eligible hearing service provider’.

105.     Item 7 would repeal the definition of ‘the nominated AGHS company’ from the Privacy Act.

106.     Item 8 would repeal item 8 of the table to section 37 of the Privacy Act to remove the nominated AGHS company from the table prescribing positions as principal executives of agencies listed in the table.

107.     Item 9 would repeal subsection 54(2) of the Privacy Act that deems the nominated AGHS company to not be considered in the meaning of agency for the purposes of section 54 of the Privacy Act.

108.     Item 10 would repeal subsection 57(2) of the Privacy Act that deems the nominated AGHS company to not be considered in the meaning of agency for the purposes of section 57 of the Privacy Act.

109.     The above six items amending the Privacy Act are consequential to the sale of MPL in 2014. The nominated AGHS company, as declared by the Minister under section 5 of the Hearing Services and AGHS Reform Act 1997, was HSA Limited, a subsidiary of MPL. Following the sale of MPL, it is no longer appropriate to prescribe HSA Limited as the nominated AGHS company.

 

Remuneration Tribunal Act 1973

110.     Item 11 would repeal paragraph 3(1)(h) of the Remuneration Tribunal Act 1973 that provides the Managing Director of HSA Limited to be a principal executive office for the purposes of the Remuneration Tribunal Act 1973.

111.     Following the sale of MPL in 2014, including its subsidiary HSA Limited, it is no longer appropriate to prescribe the Managing Director of HSA Limited as a principal executive office.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Notes on Schedule 4 – Transitional and application provisions

Introduction

112.     Schedule 4 deals with application and transitional arrangements for the Bill.

Item 1 – Annual reports

113.     The effect of this requirement is that existing Commonwealth entities will prepare their annual reports for the reporting period ending 30 June 2017 in a manner subject to the annual reporting requirements prescribed under section 46 of the PGPA Act.

Item 2 – Disclosing interests

114.     This item would preserve a person’s previous disclosures where they have been made under a provision in enabling legislation and deem them to have been disclosed in accordance with section 29 of the PGPA Act (and any rules made under that section). This ensures that people do not have to disclose again any continuing interests that exist at the commencement of this Bill.

Item 3 – Saving instruments in force at commencement

115.     This item preserves instruments (including non-legislative instruments) that have been made under provisions that are amended in Schedule 2. This is designed to ensure that existing instruments are not unnecessarily affected by the consequential amendments. For a provision that is amended, the instruments under that provision continue (sub-item (2)(b)(i)). For a provision that is repealed and substituted, the instruments are taken to have been made under the substituted provision, as long as the substituted provision is in similar terms.

Item 4 – Amendments to legislative instruments

116.     This item allows an amending legislative instrument that amends another legislative instrument as a consequence of amendments made through the enactment of the Public Governance and Resources Legislation Amendment Act (No. 1) 2017 (this Act) to be expressed to have taken effect from a date before the amending instrument is registered under the Legislation Act 2003.

Item 5 – Transitional rules

117.     This item permits rules to be made prescribing matters that are required or permitted by this Act to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to this Act. Rules prescribing matters of a transitional nature relating to amendments or repeals made by this Act or following the enactment of this Act may also be made.

 

 

 

 

 

 

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

PUBLIC GOVERNANCE AND RESOURCES LEGISLATION AMENDMENT BILL (No. 1) 2017

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

The Public Governance, Resources and Legislation Amendment Bill (No. 1) 2017 would amend 13 Acts to:

·         prescribe bodies as listed entities for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) within enabling legislation;

·         replace references to the Financial Management and Accountability Act 1997 and Commonwealth Authorities and Companies Act 1997 with the equivalent provisions in the PGPA Act;

·         simplify legislation where provisions of the PGPA Act cover a matter previously dealt with in enabling legislation;

·         amend legislation to clarify which matters are covered by the PGPA Act and which matters are covered by other legislation, such as in the case of annual reporting, or disclosure of interest arrangements where an entity may have additional obligations over and above those imposed through the PGPA Act; and

·         amend legislation to reflect the sale of Medibank Private Limited.

 

Human Rights Implication

If enacted, this Bill would not affect any of the applicable rights or freedoms outlined in the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Conclusion

The Bill is compatible with human rights.