Bills Digest No. 35, 2017–18
PDF version [848KB]
Christina Raymond
Law and Bills Digest Section
12
September 2017
Contents
Purpose and structure of the Bill
Background
Smaller government agenda
Previous attempt to abolish the
Corporations and Markets Advisory Committee—2014–15
Previous attempt to abolish the Oil
and Product Stewardship Advisory Groups—2014–15
Committee consideration
Previous committee consideration of
the proposed abolition of CAMAC—2014–15
Previous committee consideration of
the proposed abolition of the OSAC and PSAC—2014–15
Policy position of non-government
parties/independents
Party positions on the 2014 Bill to
abolish CAMAC
Opposition
Members of the cross-bench in the
House of Representatives
Members of the cross-bench in the
Senate
Party positions on the 2014–15
proposal to abolish the Oil and Product Stewardship Advisory Groups
Australian Greens
Opposition
Members of the cross-bench (other
than the Australian Greens)
Position of major interest groups
Positions on the proposed abolition
of CAMAC—2014–15
Positions on the proposed abolition
of the OSAC and PSAG—2014–15
Positions on the proposed abolition
of the PBRAC and replacement consultation arrangements—2014
Financial implications
Unquantified contribution of the
cessation of the seven bodies to the total estimated savings
Previous estimated savings associated
with the rationalisation of Commonwealth bodies—2014–15
Estimated savings from the abolition
of CAMAC—2014–15
Estimated savings from the abolition
of the OSAC and PSAG—2014–15
No estimated savings from the
abolition of other bodies named in the Bill—2014–15
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Schedule 1—Abolition of the
tradespersons' rights committees
Key amendments
Role and functions of the
tradespersons’ rights committees
Policy justification for abolition
Schedule 2—Abolition of the Oil
Stewardship Advisory Council
Key amendments
Membership and functions of the OSAC
Policy justification for abolition
Recommendations of the 2013 review of
the PSO Act—a more active role for the OSAC
Establishment of the next independent
review of the PSO Act
Schedule 3—Abolition of the Product
Stewardship Advisory Group
Key amendments
Membership and functions of the PSAG
Policy justification for abolition
Current review of the Product
Stewardship Act
Schedule 4—Abolition of the Advisory
Group of the Australian Sports Anti-Doping Authority
Key amendments
Membership and functions of the ASADA
Advisory Group
Policy justification for abolition
Schedule 5—Abolition of the Plant
Breeder's Rights Advisory Committee
Key amendments
Membership and functions of the PBRAC
Policy justification for abolition
IP Australia consultation
paper—options for non-statutory models to obtain expertise (September 2014)
Schedule 6—Abolition of the Development
Allowance Authority
Key amendments
Membership and functions of the DAA
and the associated legislative framework
Policy justification for abolition
Schedule 7—Abolition of the
Corporations and Markets Advisory Committee
Key amendments
Membership and functions of CAMAC
Policy justification for abolition
Opposition to the proposed
abolition—2014–15
Concluding comments
Abolition of the Corporations and
Markets Advisory Committee (Schedule 7)
Replacement of statutory bodies with
administrative arrangements (Schedules 2, 3 and 5)
Scrutiny of replacement stakeholder
consultation and engagement arrangements, including costs
Consideration of recent and current
legislative reviews of the PSO Act and the PS Act
Non-controversial measures—repeal of
apparently redundant bodies (Schedules 1, 4 and 6)
Date introduced: 22
June 2017
House: House of
Representatives
Portfolio: Finance
Commencement: the
day after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2017.
Purpose and
structure of the Bill
The Statute Update (Smaller Government) Bill 2017 (the
Bill) continues the implementation of the Government’s ‘smaller government
agenda’ by proposing the abolition of seven Commonwealth statutory advisory
bodies that are said to be ‘unnecessary’.[1]
These bodies (and the key legislation proposed to be amended, and the
corresponding amending schedules to the Bill) are as follows:
Each of the seven schedules listed above propose to make
amendments of the following kind:
- the
main amendments to the legislation establishing and conferring functions
upon the relevant body (the ‘establishing legislation’) to repeal those
provisions, thereby terminating the body’s legal existence with effect from the
date of commencement of the amendments (the day after Royal Assent)
- consequential
amendments to the establishing legislation and other legislation to remove various
cross‑references to the relevant body proposed to be abolished or
provisions administered by that body and
- application,
savings and transitional provisions, primarily to preserve the validity of
actions taken by, and obligations imposed or immunities conferred upon, the
bodies proposed to be abolished (and their individual members or staff).
Background
Smaller government agenda
The smaller government agenda was initiated in 2013 with
the objective of creating ‘a smaller, smarter and more productive sustainable
public sector’[3]
and applying the resultant savings to budget repair.[4]
In short, it comprises a number of initiatives that include
reducing the number of government bodies in the nature of independent advisory
bodies and boards, agencies and other statutory entities—generally by
abolishing them and consolidating their functions into portfolio departments,
or merging existing agencies.[5]
The smaller government agenda takes into account findings
and recommendations of the National Commission of Audit (NCoA), which was
appointed by the Government in 2013 to review and report on the performance,
functions and roles of the Commonwealth Government.
The NCoA found that ‘there are too many government bodies
in Australia’ which ‘leads to duplication and overlap, unnecessary complexity,
the potential for uncoordinated advice and avoidable costs’.[6]
It recommended the rationalisation of many bodies and agencies. In relation to
advisory bodies, it stated, ‘where the need for an advisory function remains,
consolidation of this function into the portfolio department is preferred’.[7]
The proposed abolition of the seven bodies in the Bill were
originally identified by the Government in 2014,[8]
and are consistent with recommendations of the NCoA in relation to those
bodies.[9]
Previous attempt to abolish
the Corporations and Markets Advisory Committee—2014–15
CAMAC is established under the ASIC Act to provide
advice and recommendations to the Minister (on the Minister’s request, or on
its own motion) about matters relating to corporations and financial services
law, administration and practice. This includes the provision of advice about matters
of corporations law reform and improvements to the efficiency of the financial
services market.[10]
The Government announced its intention to abolish CAMAC in
the 2014–15 Budget and introduced the Australian
Securities and Investments Commission (Corporations and Markets Advisory
Committee Abolition) Bill 2014 (2014 Bill) to implement that measure.[11]
The 2014 Bill was introduced after a public consultation process on an exposure
draft conducted by the Department of the Treasury.[12]
In his second reading speech on the Bill, the (then) Parliamentary Secretary to
the Treasurer, Steven Ciobo, provided the following policy justification for
the proposed abolition:
[T]he business environment has
changed from 1989 when the agency was first established as the Corporations and
Securities Advisory Committee. The professionalism and capacity of industry
representative groups is now much stronger, and business is quite capable of
putting its views to government without the need for an additional layer of
taxpayer funded bureaucracy.
...
I am confident industry will
continue to be vocal in expressing its views to government on the operation of
the corporations laws. The Treasury will act as an adviser and coordinator
of advice, given its role as a policy agency. Treasury will continue to advise
the government in relation to corporate law, financial markets and financial
services following the cessation of CAMAC. That advice will continue to be
informed by regular engagement with relevant experts and with industry. In
addition, ASIC will continue to be empowered under its enabling legislation to
make recommendations to the government about any matter connected with:
- a proposal to make or amend the corporations legislation;
- the operation or administration of the corporations
legislation;
- companies or a segment of the financial products and financial
services industry; or
- the efficiency of the financial markets.
Finally, the government retains the ability to refer matters
regarding the corporate regulatory framework to other government research and
advisory bodies such as the Productivity Commission and the Australian Law
Reform Commission.[13]
As outlined below, the 2014 Bill attracted significant
criticism from non-government members of the Parliament and several stakeholders
in the business, legal and financial services sectors.[14]
The 2014 Bill was passed by the House of Representatives.[15]
It was introduced and read a second time in the Senate[16]
but did not proceed to debate or vote, and lapsed at the prorogation of
Parliament on 17 April 2016.
While CAMAC still has a legal existence, it is not
presently operational. Its 2016–17 corporate plan indicates that, in line with
the 2014–15 Budget decision, its work program was either completed in 2013–14
or transferred to the Treasury.[17]
CAMAC comprised a single member as at 2016–17 (namely, the Chairperson of ASIC)
and has no staff.[18]
No appropriation was made to CAMAC in the 2016–17 or 2017–18 Budgets and it was
not included in Treasury’s portfolio budget statements.
Previous attempt to abolish
the Oil and Product Stewardship Advisory Groups—2014–15
The OSAC and PSAC are representative groups that provide
independent advice to the Environment Minister about aspects of the oil and
product stewardship regulatory regimes established under Commonwealth laws
(explained further in the Key issues and provisions section of this
Bills Digest).
The Government proposed to repeal these bodies as part of
the Omnibus
Repeal Day (Spring 2014) Bill 2014 (2014 Omnibus Repeal Bill) with the
Explanatory Memorandum to that Bill stating that it was preferable for the portfolio
department to engage with relevant experts on an ‘as needs’ basis rather than
maintaining permanent statutory bodies to perform this function.[19]
This Bill was amended in the Senate on a motion of the
Australian Greens to omit the measures abolishing the OSAC and PSAG (as well as
another body, the Fuel Standards Consultative Committee established under the Fuel Quality
Standards Act 2000, the abolition of which is not proposed in the
present Bill).[20]
The House of Representatives did not support these
amendments (among others passed by the Senate) in March 2015.[21]
However, the Senate passed a motion insisting on its amendments in August 2015.[22]
The Bill lapsed at the prorogation of Parliament on 17 April 2016. (Positions
taken in the debate of the 2014 amendments are summarised in the commentary
below.)
Committee
consideration
The Senate Standing Committee for the Selection of Bills
recommended that the Bill not be referred to a Senate committee for inquiry and
report.[23]
The Senate Standing Committee for the Scrutiny of Bills
reported that it had no comment on the Bill.[24]
Previous committee consideration
of the proposed abolition of CAMAC—2014–15
The 2014 Bill was the subject of an inquiry by the Senate
Economics Legislation Committee. That Committee recommended, by majority, that
the Senate pass the Bill.[25]
The majority report stated:
The committee recognises that CAMAC has
contributed extensively to the development of reforms to corporations law in
Australia.
That said, the committee notes that the
consolidation of the functions of CAMAC into the Department of the Treasury is
expected to improve coordination and accountability and reduce the costs
associated with separate governance arrangements. It is also anticipated that
this move will increase efficiency in how public funds are used to deliver
services to the community.
In addition, ASIC may on its own initiative,
or when requested by the Minister, advise or make recommendations to the
Minister about matters concerned with corporations legislation, the financial
services industry and financial markets.
The committee has considered the evidence
and formed the view that the abolition of CAMAC would generate savings as
intended. It should also be noted that the government would also retain the
ability to access expert advice on corporations legislation and related matters
through the Department of the Treasury and ASIC.[26]
The Australian Labor Party members of the Committee issued
a dissenting report, in which they supported the retention of CAMAC and
recommended that the Bill not proceed.[27]
They stated:
The evidence provided to this committee by corporations
law experts was unanimously opposed to the abolition of CAMAC.
Submissions ... criticised the rationale
presented for the abolition, principally the lack of resources Treasury and ASIC
have to provide independent expertise, and their ability to offer independent advice
to both Government and Opposition.[28]
Previous committee
consideration of the proposed abolition of the OSAC and PSAC—2014–15
For completeness, the 2014 Omnibus
Repeal Bill was not referred to a committee for inquiry and report.[29]
The Senate Scrutiny of Bills Committee did not comment on the proposed
repeals of the OSAC and PSAC in that Bill, or the Senate’s amendments to omit
these measures.[30]
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independent members of Parliament do not appear to have commented on the Bill. However,
Parliamentarians’ positions on the previous legislation proposing to abolish
CAMAC, the OSAC and PSAG may provide some insight into their possible positions
on Schedules 2, 3 and 7.
Party positions on the 2014
Bill to abolish CAMAC
Opposition
In addition to the Opposition Senators’ dissenting report on
the Senate Economics Legislation Committee inquiry into the 2014 Bill
(mentioned above), the Australian Labor Party voted against that Bill in the
House of Representatives.[31]
Some members elaborated upon the basis for the Party’s opposition during the
second reading debate—for example, the Member for Griffith commented:
Advice from Treasury and regulators is
deeply important, but it is different from and complementary to the type of
advice that can be provided by practitioners and experts who have been engaged
in corporations and markets throughout their professional lives. They are
different sources of advice, and one does not replace the other. More
concerning is the idea that somehow CAMAC is just there to push a business
barrow. CAMAC is a disinterested committee that acts in the national interest.
Businesses ... are perfectly able to make their own arguments from a lobbying
perspective, from an advocacy perspective, to promote their commercial
interests. But CAMAC serves a different role; it serves the national interest
and the public interest in appropriate and ongoing reform of the law in so far
as it relates to corporations and markets.[32]
Members of the cross-bench in
the House of Representatives
The Australian Greens (the Member for Melbourne), Katter’s
Australian Party (the Member for Kennedy) and the Independent Members (the
Member for Indi and the Member for Denison) voted against the 2014 Bill in the
House of Representatives.[33]
Members of the cross-bench in
the Senate
While the 2014 Bill was not debated or voted upon in the
Senate before it lapsed in 2016, media reports suggest that some members
of the cross-bench intended to vote against it. A media report published in May 2015
stated that Senator Nick Xenophon and the Australian Greens Senators had
disclosed their intention to vote against the 2014 Bill, and that Senator
Jacqui Lambie’s office ‘gave a strong indication she would also block the
abolition’. That report also stated that Liberal Democrats Senator David Leyonhjelm
intended to vote for the 2014 Bill.[34]
Party positions on the 2014–15
proposal to abolish the Oil and Product Stewardship Advisory Groups
Australian Greens
The Australian Greens opposed the abolition of the OSAC
and PSAG. In December 2014, Senator Larissa Waters successfully moved
amendments to the 2014 Omnibus Repeal Bill in the Senate to omit the measures to
repeal the provisions establishing these bodies.[35]
In August 2015, Australian Greens Senators also voted
against a Government motion that the Senate not insist on its amendments passed
in December 2014 after they were not agreed to by the House of Representatives
in March 2015. (This motion was negatived, with the Opposition and some members
of the cross-bench, including Senators Lambie and Xenophon, also voting against
it.)[36]
In moving the amendments in December 2014 and subsequently
in opposing the Government’s motion in August 2015, Senator Waters commented
that the OSAC and PSAG (and the Fuel Standards Consultative Committee) served
‘a very useful function’ and successfully provided ‘expert policy advice in
highly complex areas’. She expressed concern that the Department of Environment
did not have sufficient in-house expertise or resources to fill the gap left by
the abolition of these bodies.[37]
Opposition
The Opposition did not oppose the 2014 Omnibus Repeal Bill
in the House of Representatives in October 2014, but indicated that it would
support the referral of that Bill to a Senate committee to scrutinise the
measures proposing the abolition of the OSAC, PSAC and Fuel Standards
Consultative Committee. The Manager of Opposition Business commented ‘we are
taking a cautious approach to ensure that the government's claim that these
groups are no longer relevant is in fact valid’.[38]
In 2015, the Opposition voted against the Government’s
motions in the House of Representatives and in the Senate to oppose the Greens’
amendments as passed by the Senate in December 2014.[39]
Members of the cross-bench
(other than the Australian Greens)
Members of the cross-bench did not oppose the 2014 Omnibus
Repeal Bill in the House of Representatives.[40]
The Member for Kennedy and the Member for Denison voted against the
Government’s motion in March 2015 that the House not agree to the Senate's
amendments as passed in December 2014.[41]
Senators Lambie and Xenophon appeared to support the
retention of OSAC and PSAC, voting against the Government’s motion in August
2015 that the Senate not insist on its amendments as passed in December 2014,
following their rejection by the House of Representatives. Senator Leyonhjelm
voted in favour of the Government’s motion.[42]
Position of
major interest groups
At the time of writing, major interest groups do not
appear to have commented publicly on the Bill.
Positions on the proposed
abolition of CAMAC—2014–15
As noted above, the proposed abolition of CAMAC in the
2014 Bill (now contained in Schedule 7 to the present Bill) drew
significant criticism. This included in submissions made to the Treasury on an
exposure draft of the Bill,[43]
in the Parliamentary scrutiny of the Bill once introduced,[44]
and in media and other public commentary.[45]
Interest groups that opposed the abolition of CAMAC in
2014–15 included:
- the
Law Council of Australia (Business Law Section)[46]
- the
Australian Institute of Company Directors[47]
- the Australian Restructuring Insolvency and Turnaround Association[48]
- the Governance Institute of Australia[49]
- the Australian Council of Superannuation Investors[50]
- Chartered Accountants Australia and New Zealand[51]
- CPA Australia[52]
- some Australian corporations law academics[53] and
- some former CAMAC members.[54]
However, the Financial Services Council
supported the abolition of CAMAC in its submissions to the Government on the
exposure draft Bill and to the Senate Economics Legislation Committee inquiry
into the 2014 Bill.[55]
Positions on the proposed
abolition of the OSAC and PSAG—2014–15
During the debate of the 2014 Omnibus
Repeal Bill in December 2014, Senator Waters referred to the views of the Total
Environment Centre and the National Toxics Network, stating that these bodies were
opposed to the abolition of OSAC and PSAG.[56]
Positions on the proposed
abolition of the PBRAC and replacement consultation arrangements—2014
In September 2014, IP Australia released
a consultation paper seeking stakeholders’ views on potential non-legislative
options to replace the PBRAC following the Government’s decision to cease the
operation of that body pending its legislative abolition (which is now proposed
in Schedule 5 to the Bill). The intention was to ensure that arrangements
were in place to enable the Government to continue to have access to
specialised and technical advice on plant breeder’s rights matters, including
when considering changes to legislation.[57]
This matter is discussed further in the Key
issues and provisions section of this Bills Digest. In short, a number of
stakeholders from the legal and agricultural sectors expressed their support
for the work of the PBRAC, and suggested that—if the Government was to proceed
with the abolition of the PBRAC—the preferable model would adopt one or both of
the following measures:
- a consultative group convened by IP Australia (analogous to IP
Australia’s existing consultative groups with respect to patents, trademarks
and designs) and
- the ad hoc engagement of experts by IP Australia, potentially by way
of an expert panel comprising appropriate specialists having regard to the
particular engagement, which could consult with stakeholders as necessary and would
be supported by IP Australia as secretariat.[58]
Some stakeholders also argued that any
new consultative arrangements should continue to reflect the existing requirements
under the PBR Act for
sectoral representation in the membership of PBRAC, including representation of
Indigenous interests. It was also suggested that financial assistance should be
made available to persons participating in such consultations to guarantee a representative
cross-section of expert input.[59]
Financial
implications
The Explanatory Memorandum states that the Bill has no
direct financial impact.[60]
While the Explanatory Memorandum does not provide reasons for this position, one
possible explanation is that the bodies that are proposed to be abolished are
no longer operational.
In this event, the (unquantified) savings derived from
discontinuing the funding of these bodies would already have been realised, at
least over the relevant financial year and forward estimates period, such as
remuneration costs and other operating expenses. The amount of these savings
would presumably have been offset against any winding up expenses, such as
redundancy payments or contract termination costs.
It is also possible that the amount of any savings associated
with cessation may have been offset by expenses incurred by the portfolio
departments or other agencies that have assumed the advisory functions of the
ceased independent bodies that are now proposed to be abolished. Such expenses
might have included, for example, possible departmental or agency expenditure
on consultancies or staff recruitment to access the level of expertise
previously provided by members of the bodies. The extrinsic materials to the
Bill provide no information about this possibility.
Unquantified contribution of
the cessation of the seven bodies to the total estimated savings
Elsewhere, the Explanatory Memorandum states that the
‘rationalisation phase’ of the smaller government agenda is expected to produce
a total saving of $1.5 billion (that is, from its inception prior to the 2014–15
Budget up to the 2017–18 Budget) by ‘consolidating, merging and abolishing
bodies’.[61]
It therefore seems anomalous that there has been no attempt
to quantify, in the extrinsic materials to the present Bill, the contribution
to the total savings estimate of the cessation of each of the seven bodies proposed
to be abolished; or to explain why the cessation of these bodies did not
contribute to those savings; or to explain why any estimated savings associated
with the cessation of these bodies were unquantifiable.
Previous estimated savings
associated with the rationalisation of Commonwealth bodies—2014–15
In contrast to the present Bill, other legislation
introduced or policy documentation released to implement the rationalisation
phase of the smaller government agenda has quantified the financial impact of
the cessation of individual bodies—which, in some instances, appears to be
relatively small.
Estimated savings from the
abolition of CAMAC—2014–15
The Explanatory Memorandum to the previous legislative
attempt to terminate CAMAC in the 2014 Bill stated that ‘cessation of CAMAC is
expected to have a positive impact on the fiscal balance of $2.8 million, and
on underlying cash of $3.1 million over the forward estimates’. It further
stated that ‘these estimates make allowances for the costs of shutting down
CAMAC including employee redundancies and contract termination costs’.[62]
This indicates that the estimated annual saving was under $1 million (in
2014 monetary value).
Estimated savings from the
abolition of the OSAC and PSAG—2014–15
Previous Budgets have also quantified the estimated
savings (over the forward estimates period) of terminating various other
Commonwealth agencies as part of the smaller government agenda.[63]
The Government's position paper released in May 2014, Smaller
and More Rational Government 2014–15,[64]
and a further position paper released in December 2014, Smaller
Government—Towards a Sustainable Future,[65]
also quantified estimated savings (over a five-year period) from the abolition
of various bodies.
In particular, the December 2014 position paper made
reference to the proposed abolition of the bodies proposed to be abolished by Schedules
1–6 to the Bill. It indicated that the total savings from the abolition of
OSAC over a five-year period were estimated to be $0.009 million (2014 value).[66]
The total savings from the abolition of the PSAG over the same period were
estimated to be $0.005 million (2014 value).[67]
No estimated savings from the
abolition of other bodies named in the Bill—2014–15
In relation to the tradespersons’ rights committees, the
PBRAC, the ASADA Advisory Group and the DAA, the December 2014 position paper identified
the financial implications for the cessation of these bodies as ‘not quantified
and no save returned to Budget’.[68]
The position paper did not provide reasons for not costing the abolition of
these bodies, or explain why their abolition was not estimated to return any
savings, or why any savings were unquantifiable (as the case may be).[69]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[70]
In particular, it is said that the proposed repeals of the
OSAC, PSAG, ASADA Advisory Group, PBRAG and the DAA (and the associated
provisions establishing the tax exempt infrastructure borrowing concession) in Schedules
2–6 do not engage any human rights.[71]
The proposed repeal of the tradespersons’ rights
committees and associated regulatory framework under the TRR Act in Schedule 1
are said to engage the right to work in Article 6 of the International
Covenant on Economic, Social and Cultural Rights.[72]
This is said to be compatible because the legislative framework established
under the TRR Act has been replaced with the Trades Recognition Service,
which is said to promote the right to work.[73]
The Statement of Compatibility identifies that some
transitional and savings provisions associated with the abolition of CAMAC in Schedule
7 engage rights under the International Covenant on Civil and Political
Rights[74]
with respect to a fair hearing (Article 14), an effective remedy (Article 2)
and privacy (Article 17).[75]
The relevant provisions relate to the attribution to the Commonwealth of acts
done by CAMAC after CAMAC is abolished; and continue the regulation of the use
of confidential information disclosed to CAMAC after its abolition.
The Statement of Compatibility also appears to infer, by
its silence on the matter, that the abolition of the relevant bodies does not,
itself, engage any human rights.[76]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights
reported that the Bill did not raise human rights concerns.[77]
Key issues
and provisions
The kinds of amending provisions included in Schedules
1–7 are commonly used in legislation abolishing Commonwealth statutory
bodies, and do not appear to raise substantial technical legal issues.
Rather, the key issues arising in relation to the Bill
appear to be directed to the policy merits of the proposals to consolidate the
functions of independent statutory advisory bodies into portfolio departments
or regulatory agencies. (Namely, the cogency of the justification for the
proposed abolition of each body; and the nature and effectiveness of the
administrative arrangements that have been, or will be, implemented to replace
each body.)
Schedule 1—Abolition
of the tradespersons' rights committees
Key amendments
Schedule 1 contains two amending items. Item 1
repeals the whole of the TRR Act. Item 2 makes a consequential
amendment to the Sea
Installations Act 1987 to remove a cross-reference to the TRR Act.
Role and functions of the
tradespersons’ rights committees
The TRR Act established a legislative framework for
the Australian Recognised Trade Certificate Program (ARTC Program). This
was a domestic skills assessment program for migrants who had undertaken their
trade training overseas and Australians who gained trade skills during World
War II, which operated from 1946 to 2014 and was administered by Trades
Recognition Australia.[78]
Under Parts II-VIA of the TRR Act, six ‘central committees’
and supporting ‘local committees’ are established for specific trades
(comprising Ministerial and industry representatives drawn from employers and
employees). These committees could issue certificates to tradespersons who had
demonstrated requisite standards of competence in the relevant trade
(engineering, boilermaking, blacksmithing, electrical, sheet metal and boot trades).
Policy justification for
abolition
The Explanatory Memorandum notes that ‘the TRR Act effectively
became redundant on 1 October 2014 when the ARTC Program closed’ and was
replaced by the Trades Recognition Service (TRS).[79]
The Explanatory Memorandum provides the following overview
of the legislative and review related history of the proposal to repeal the TRR
Act consequential upon its replacement by the TRS:
The TRR Act was first
identified for review in 1995. A review committee was formed in 1997 and in
1998 it recommended the Act be repealed given the following developments in the
domestic training system had removed the underlying rationale for its
continuation:
-
introduction of a new national Australian Qualifications
Framework (AQF) providing an overarching national policy for regulated
qualifications in the Australian education and training system;
-
introduction of the first industry endorsed national training
packages and accredited courses; and
- introduction of a framework of nationally agreed registration
requirements for training providers.
A repeal bill was introduced to Parliament in 1999 [the Tradesmen’s Rights Regulation Repeal Bill 1999].[80]
However, Opposition Senators recommended the bill not proceed[81]
and it was still before the Senate when Parliament was dissolved prior to the
2001 general election. The bill was not reintroduced in the following
parliamentary term.
In 2010, Paul G Byrne Consulting was commissioned to conduct
another review of the TRR Act and ARTC Program (the Byrne Review). The
Byrne Review recommended replacing the ARTC Program with a service that was
aligned to the national vocational education and training (VET) system,
involving assessment against Australian competency standards in AQF
qualifications.
In late 2012, a Transitional Advisory Committee (TAC),
consisting of government, employer and employee association and licensing
authority representatives, convened to consider options for the future of the
ARTC Program. All parties agreed on the need to modernise the ARTC Program. As
with the previous reviews, the TAC recommended repeal of the TRR Act and
replacement of the ARTC Program with an alternative skills assessment service
aligned to the national VET system, using registered training organisations to
conduct skills assessments. Ministerial approval was received in 2013, and
noted in 2014 following a change of government. The ARTC Program was replaced by the TRS on
1 October 2014 [footnotes and hyperlinks added for convenience of reference].[82]
Schedule 2—Abolition
of the Oil Stewardship Advisory Council
Key amendments
Schedule 2 proposes to amend the PSO Act to
abolish the OSAC. The key function of the OSAC is to provide advice to the
Minister administering the PSO Act (the Environment Minister) on matters
relating to used oil recycling, the product stewardship arrangements for oil
and the state of the oil industry.[83]
The core amendment is in item 4, which repeals Part
3 of the PSO Act. This part establishes the OSAC and prescribes its
functions. Items 1–3 amend the PSO Act to remove definitions
related to the OSAC and its membership, and cross-references to the OSAC’s
activities. Item 5 contains a savings provision that provides for the
continued effect of an immunity provision for members of the OSAC in section 31
after the repeal of Part 3.
Membership and functions of
the OSAC
Members of the OSAC are appointed by the Environment
Minister on the basis of their knowledge of and experience in prescribed
matters. These matters relate to: waste management issues from a business
perspective; relevant research and development; state, territory and local
government; the non-government sector; national consumer issues; remote issues
including Indigenous issues; oil production; and used oil recycling and collection.
The Minister must also ensure that a majority of members are not persons
employed by the Commonwealth.[84]
Members are paid a remuneration allowance determined by the Remuneration
Tribunal.[85]
The OSAC is required to meet at least annually, and according to the
Explanatory Memorandum it has also provided input to the four-yearly statutory
reviews of the PSO Act.[86]
As noted above, the Bill is the second attempt to abolish
OSAC.[87]
It appears that all positions on the OSAC are currently vacant,[88]
and that it was inactive since the previous repeal legislation was before
Parliament.[89]
Policy justification for
abolition
The Explanatory Memorandum states that the abolition of the
OSAC ‘will not preclude the Department of the Environment and Energy (DEE) from
engaging with industry experts on an “as needs” basis to gather advice and
guidance on review processes and other matters’ that are relevant to the
administration of the PSO Act.[90]
The Explanatory Memorandum further states that ‘the
frequency of the OSAC meetings and the review process is not sufficient to
justify the ongoing maintenance of a permanent statutory advisory body. This is
particularly so given the Product Stewardship for Oil Scheme is now well
established, with over ten years of operation’.[91]
This replicates the policy justification provided in 2014.[92]
Recommendations of the 2013
review of the PSO Act—a more active role for the OSAC
The third (and most recent) four-yearly independent review
of the PSO Act (completed in September 2013) made some
recommendations about the OSAC, which supported an expansion of its role in
providing advice and guidance to government about the operation of the PSO scheme
and opportunities for improvement. In particular, the review recommended
measures to improve coordination with and involvement of industry through a
‘tasked’ OSAC—namely that the OSAC:
[S]hould be tasked with playing a more active role in
advising government on the PSO Scheme’s operation and issues relating to used
oil aggregation and collection, including collecting and providing relevant
data and information.[93]
The review commented that the OSAC (or a similar body that
could act as an interface between the used oil collection and recycling sector and
governments) ‘is likely to benefit the successful operation of the PSO Scheme
and further development of the industry’.[94]
In particular, it suggested that a reformed OSAC ‘could facilitate greater
industry coordination in market and product development and play an important
role in advising government’.[95]
The review considered that ‘a reformed OSAC ... should be implemented as soon as possible’.[96]
Accordingly, there is an apparent tension between the
position of the Government that there is no continuing need for the OSAC, and
the view of the independent review that supported extending OSAC’s role.
Members of the Parliament may therefore wish to seek
information from the Government about how the recommendations of the third
independent review of the PSO Act have been addressed following the
practical cessation of OSAC’s activities; or how they will be addressed in the
event that the OSAC is legislatively abolished as proposed in the Bill.
Establishment of the next
independent review of the PSO Act
Members of the Parliament may also wish to seek advice
from the Government about the timing for the commencement of the next
four-yearly review of the PSO Act, and consider whether the continuation
(or abolition) of the OSAC might be more appropriately considered in the
context of that review.
Schedule 3—Abolition
of the Product Stewardship Advisory Group
Key amendments
Schedule 3 proposes to amend the PS Act to
abolish the PSAG. The main amendment is in item 2, which repeals section
108B of the PS Act. This provision establishes and prescribes the
functions of the PSAG.
Items 1 and 3 contain consequential amendments to
the PS Act, including to repeal a definition of the PSAG and provisions
in a Schedule to the PS Act that further prescribe the functions of the PSAG.
If the Bill is passed, the Government will presumably make
Regulations to repeal the Product Stewardship
(Advisory Group) Regulation 2012 made under section 111
of the PS Act, as the Regulation will become redundant in this event.
Membership and functions of
the PSAG
The primary function of the PSAG is to provide independent
advice to the Environment Minister for use in the development of a list of
products proposed to be considered, during the next financial year, as to
whether some form of accreditation or regulation under the PS Act might
be appropriate. The Minister may also request the PSAG to provide advice on the
performance of other functions under the PS Act.[97]
Members of the PSAG are appointed by the Minister for
Environment.[98]
Its membership comprises at least five ordinary members and a
chair.[99] The Minister must be satisfied that the members have ‘appropriate
qualifications, knowledge or experience’ and must consult with certain sectoral
groups about proposed appointments (industry, business, environment, technical
and scientific, consumer and local government groups, and state and territory
governments).[100] Members are paid remunerations and allowances as prescribed in Regulations
(which apply determinations of the Remuneration Tribunal).[101]
Like the OSAC, the proposed abolition of the PSAG was
announced and amending legislation was introduced in 2014 (discussed above).[102]
It appears that all positions on the PSAG are currently vacant,[103]
and that the group has been inactive since the lapsed 2014 repeal legislation
was before the Parliament.[104]
Policy justification for
abolition
The Explanatory Memorandum provides a similar
justification to that provided in support of the proposed abolition of the OSAC.
It notes that ‘the Department of the Environment and Energy will engage with
stakeholders on an “as needs” basis on the preparation of the list of classes
of products to be considered for some form of accreditation or regulation’. It
suggested that the scope for ad hoc consultations by the portfolio department
means that ‘the ongoing maintenance of a permanent statutory body to perform
this function is no longer justified’.[105]
This appears to replicate the policy justification provided for the previous
attempt to repeal the PSAG in 2014.[106]
Current review of the Product Stewardship
Act
The PS Act is currently under review, pursuant to
provisions of that Act that require the government to initiate an independent
review of its operation every five years.[107]
The review, which is the first statutory review of the PS
Act, was commenced in March 2017 under terms of reference issued by the
Environment Minister.[108]
It is required to be completed in the first half of 2018 and must focus broadly
on the extent to which the objects of the Act are being met
and whether they remain appropriate.[109]
The terms of reference further indicate that the review is being
undertaken by the Department of Environment and Energy in consultation with
stakeholders from industry, state, territory and local
governments and the community.[110]
It is unclear whether the continued existence of the PSAG,
or industry consultation arrangements more broadly in relation to product
listings, are being or might be considered as part of the current review. In
the abstract, these matters seem capable of falling within the terms of
reference.
Members of the Parliament may therefore wish to consider
whether it may be prudent to await the outcomes of the review before making a
decision on the appropriateness of abolishing the PSAG.
Schedule 4—Abolition
of the Advisory Group of the Australian Sports Anti-Doping Authority
Key amendments
Schedule 4 proposes to amend the ASADA Act to
repeal the ASADA Advisory Group, which provides advice and makes recommendations
to the ASADA CEO on matters relating to the CEO’s functions.
The main amendment is item 13, which repeals Part 4
of the ASADA Act. (This Part establishes and prescribes the functions of
the ASADA Advisory Group.) Items 1–12 and 14–28 make consequential
amendments to remove references to the ASADA Advisory Group. Item 29 is
a savings provision that continues the application of secrecy obligations and
civil immunity provisions in the ASADA Act to former members of the
ASADA Advisory Group after the repeal of Part 4.
Membership and functions of
the ASADA Advisory Group
Under Part 4 of the ASADA Act, the functions of the
ASADA Advisory Group are to provide advice and make
recommendations to the ASADA CEO on matters relating to the CEO’s functions,
but it cannot give directions to the CEO.[111] Meetings are convened by the CEO at his or her sole discretion.[112] The group’s membership comprises at least two and no more than
seven members appointed by the Minister, who must be satisfied that appointees
have appropriate knowledge or experience in matters including education and
training, sports medicine or law, ethics or investigative practices or
techniques.[113] Members are paid remuneration determined by the Remuneration
Tribunal and are paid allowances prescribed in the Regulations.[114]
Policy justification for
abolition
The Explanatory Memorandum does not provide a detailed
policy justification for the abolition of the ASADA Advisory Group beyond the
general statement of policy intention in relation to all of the proposed
amendments in the Bill. However, it indicates that the advisory group ‘is not
active and has no current members’ and further states that, despite the repeal
of a legislatively mandated advisory group, ‘the ASADA Chief Executive Officer will
still be able to seek advice as and when required’.[115]
Schedule 5—Abolition
of the Plant Breeder's Rights Advisory Committee
Key amendments
Schedule 5 proposes to amend the PBR Act to
abolish the PBRAC, which is a body primarily responsible for providing specialised
technical advice to the government on plant breeder’s rights (PBR) matters when
considering changes to PBR legislation.
The key amendment is item 4, which proposes to
repeal Part 7 of the PBR Act (this Part establishes and prescribes the
functions of the PBRAC).
Items 1–3 and 5–7 make consequential amendments to
remove references to the PBRAC from the PBR Act. Item 8 is a
transitional provision that provides for the transfer of records and documents
of the PBRAC, and for the Minister to have regard to any advice that was
provided by the PBRAC prior to its abolition.
Membership and functions of
the PBRAC
The PBRAC is established by section 63 of the PBR Act.
Its functions are to advise the Minister for Industry on issues that may arise
under the PBR Act, and on the desirability of making Regulations that
enhance the PBR scheme. PBRAC also advises the Registrar of Plant Breeder’s
Rights on technical and administrative matters.
Eight members are appointed by the Minister (in addition
to the ex officio appointment of the Registrar). Ministerial appointments must
be made in accordance with statutory requirements that the membership include
representatives for breeders, users, consumers, conservation interests and
Indigenous interests.[116]
Members hold office on a part-time basis and are paid remuneration and
allowances as determined by the Remuneration Tribunal.[117]
There do not appear to be any current members appointed to the PBRAC.[118]
Policy justification for
abolition
The Explanatory Memorandum states that the proposed
amendments in Schedule 5 implement recommendations of the NCoA in March
2014, which supported consideration of the abolition of the PBRAC and the
consolidation of its functions into the portfolio department (Industry,
Innovation and Science).[119]
The Explanatory Memorandum states that ‘having a statutory body provide
plant breeders rights advice to the government increases costs and complexity
and does not provide sufficient flexibility regarding the operation and
membership of such a body’[120]
although it does not provide analysis in support of this position.
IP Australia consultation
paper—options for non-statutory models to obtain expertise (September 2014)
As mentioned above, IP Australia released a consultation
paper in September 2014, seeking stakeholders’ views about three options to
give effect to the position of the NCoA that the ‘harnessing of views and
external advice [is] core business for departments, which does not necessitate
dedicated statutory bodies’ such as the PBRAC.[121]
The consultation paper outlined three non-statutory
proposals for obtaining specialised technical advice on plant breeder’s rights.
These were: a consultative group supported by IP Australia; a technical
cross-government advisory committee coordinated by IP Australia; and the
engagement of experts on an ad hoc or case-by-case basis (potentially from
among a standing panel of experts) with IP Australia as a secretariat.[122]
The consultation paper identified the first option (a consultative group) as
the preferred option and sought stakeholder views.[123]
The outcomes of this consultation are not identified in
the extrinsic materials to the Bill. It is therefore not clear, on the face of
the legislative proposals before the Parliament, which of these options (or any
other model) has been implemented upon the cessation of operations by PBRAC, or
will be implemented if the Bill is passed.
Schedule 6—Abolition
of the Development Allowance Authority
Key amendments
Schedule 6 proposes to amend the DAA Act to
abolish the DAA (item 1). It also proposes to repeal the Infrastructure
Certificate Cancellation Tax Act 1994 (ICCT Act) and Division
16L of Part III of the Income Tax
Assessment Act 1936 (ITAA 1936) to abolish an inoperative
tax-exempt borrowing concession that the DAA administered (items 2 and 8).
Schedule 6 also proposes to make a number of
consequential amendments to four Acts to remove cross-references to the DAA and
the abovementioned concessional scheme it administered (items 3–7 and 9–26).[124]
Item 27 contains an application provision, which has
the effect of preserving beneficiaries’ liabilities to repay the benefit of
concessions if they are found to have breached the conditions imposed by the
repealed legislation.
Membership and functions of
the DAA and the associated legislative framework
The Explanatory Memorandum provides the following outline
of the DAA and the tax-exempt infrastructure borrowing concession under the DAA
Act, ICCT Act and ITAA 1936:
Division 16L of the Income Tax Assessment Act 1936 (ITAA 1936),
together with the Development Allowance Authority Act 1992 (DA
Act) and the Infrastructure Certificate Cancellation Tax Act 1994 (ICCT
Act), established the tax exempt infrastructure borrowing concession. This
concession provided for income in relation to borrowings for certain
infrastructure projects to be non-assessable, but also not to give rise to
deductions, for a 15 year period, subject to conditions being met in relation
to the project and the use of the borrowings. If the conditions are not met at
any point in the life of the project, additional tax is imposed to recover the
benefit of the concessions.
As part of the creation of the tax exempt infrastructure
borrowing concession, the DA Act created the DAA. Under Division 16L of
the ITAA 1936, the DA Act and ICCT Act, the DAA was
invested with various powers relating to the operation and administration of
the tax exempt infrastructure borrowing concession.[125]
Policy justification for
abolition
The Explanatory Memorandum states that the tax exempt
borrowing concession was closed to new projects in 1997 and is no longer
operative, as that scheme was only available in relation to borrowings for a
project for 15 years. It also states that ‘the abolition of the DAA will
reduce compliance costs for affected taxpayers by reducing the overall size of
the tax law. The overall magnitude of the compliance save is unquantifiable,
but expected to be small’.[126]
Schedule 7—Abolition
of the Corporations and Markets Advisory Committee
Key amendments
Schedule 7 proposes to repeal Part 9 of the ASIC
Act to abolish CAMAC (item 11) and to preserve those of ASIC’s
advisory functions that it shares with CAMAC (item 9). It also contains
a number of consequential amendments to remove references to CAMAC from the ASIC
Act (items 1–8, 10 and 12) or to insert a note to a provision that
refers to the cessation of CAMAC (item 13).
Schedule 7 also contains a number of savings and
transitional provisions to preserve certain aspects of Part 9 of the ASIC
Act after it is repealed (items 14–27).
These matters relate primarily to: the transfer of CAMAC’s
assets, liabilities and records to the Commonwealth; the substitution of
references in instruments to CAMAC with references to the Commonwealth; the
attribution of CAMAC’s actions to the Commonwealth, including any involvement
by CAMAC as a party to legal proceedings immediately before the amendments
commence; the continuation of secrecy obligations imposed on CAMAC members and
staff in relation to confidential information obtained in the course of
performing their functions; and the delegation of legislative power to the
Minister to make rules prescribing other transitional matters. These measures appear
to be standard provisions that are commonly used when a statutory entity is
abolished.[127]
Membership and functions of
CAMAC
The Explanatory Memorandum provides the following summary
of the role and functions of CAMAC under Part 9 of the ASIC Act:
CAMAC was established in 1989 as part of a legislative
package that set up a national scheme for corporations and financial markets.
CAMAC provides independent advice to the Australian Government on matters
relating to the amendment, administration or reform of the corporations
legislation, matters relating to companies or a segment of the financial
products and services industry, and proposals to improve the efficiency of
financial markets.
CAMAC is a statutory body corporate, comprising part-time
members appointed by a Treasury Portfolio Minister under section 147 of the ASIC Act.
Members are appointed in a personal capacity on the basis of their knowledge
and experience in business, financial markets, law, economics or
accounting. CAMAC is supported by a full-time Executive of three staff.[128]
Policy justification for
abolition
In addition to the commentary in relation to the 2014 Bill
(summarised above) the Explanatory Memorandum advances the following justification
for the proposed abolition of CAMAC:
The decision to cease CAMAC was made in the context of the
broader Smaller and More Rational Government reforms to reduce
the number of Australian Government bodies and streamline the shape of
government. The abolition and merger of some government bodies, including
CAMAC, was expected to improve coordination and accountability, reduce the
costs associated with separate governance arrangements and increase efficiency
in how public funds are used to deliver services to the community.[129]
Opposition to the proposed
abolition—2014–15
As noted above, there was considerable stakeholder and Parliamentary
opposition to the proposed abolition of CAMAC in 2014–15. This included on the
basis that CAMAC provided a robust, rigorous, transparent and
cost-effective review mechanism, whose independence and expertise could not be
readily replicated by existing government departments or agencies. (Or
at least not without incurring costs to access external expertise that may neutralise
or exceed the anticipated savings from abolishing CAMAC, which were calculated
in 2014 to be in the range of $1 million per annum.)[130]
Given this background, the reasons for the apparent
absence, to date, of stakeholder commentary on Schedule 7 are not
clear. In particular, it is uncertain whether this may be reflective of a
substantive change in stakeholders’ policy positions about the merits (or
otherwise) of retaining CAMAC; or a pragmatic position arising from a
resignation to the fact that CAMAC is no longer operational because it has not
been funded or its full membership constituted for several years.
It is also possible that there is limited awareness that
the present Bill contains measures reviving the 2014–15 proposal to
legislatively abolish CAMAC. In the absence of information about whether
non-government stakeholders were notified of, or consulted on, the
reintroduction of the legislative proposal,[131]
it may be impossible to rule out the latter possibility. The inclusion of
measures relating to the repeal of CAMAC in an “omnibus” type Bill with a
generic short title may not have clearly placed stakeholders in the business,
legal and financial services sectors on notice of its relevance to them in
respect of the proposed abolition of CAMAC. A contributing circumstance
may be the evident practice that ‘statute update’ Bills typically contain
measures that make only minor changes to the substance and effect of the law,
and may therefore not be a focus for scrutiny by stakeholders with an interest
in the future of CAMAC.[132]
Concluding comments
The Bill proposes to continue the implementation of the Government’s
smaller government agenda by abolishing seven advisory bodies established under
Commonwealth legislation. The reasons provided in support of the proposed
abolition of each body could be divided into three broad groupings, as summarised
below.
Abolition
of the Corporations and Markets Advisory Committee (Schedule 7)
Schedule 7 to the Bill represents the Government’s
second attempt to abolish CAMAC in line with its announcement in the 2014–15
Budget, following the lapsing of the 2014 Bill on the prorogation of Parliament
in April 2016.
The Government had argued that the role performed by CAMAC
could continue to be provided by the Treasury and other Commonwealth
agencies including ASIC, the Productivity Commission and the Australian Law
Reform Commission, with business and other stakeholders able to engage directly
with government rather than through CAMAC as ‘an additional layer of taxpayer
funded bureaucracy’.[133]
The first attempt to abolish CAMAC was not supported by the Opposition, some
members of the cross-bench and several industry stakeholders, who argued that
the standard and cost-effectiveness of CAMAC’s advisory activities was unlikely
to be matched by existing departments and agencies with stakeholder input
through ad hoc or informal consultation arrangements.
Although CAMAC is no longer funded and has only one member
(who is appointed in an ex officio capacity) it is still legally established as
a Commonwealth entity by Part 9 of the ASIC Act. One pragmatic
consideration arising from Schedule 7 is that the legislative abolition
of CAMAC may reduce the prospect that a future government might, if ever desired,
seek to revive the body at some later point. In particular, the need to
enact new establishing legislation to achieve this outcome may create a
practical disincentive to any future revival of CAMAC, if that course were to
be supported as a matter of policy in the future.[134]
Replacement
of statutory bodies with administrative arrangements (Schedules 2, 3 and 5)
The Government has taken the view that the limited
frequency of meetings of some bodies specified in the Bill is not sufficient to
justify their ongoing maintenance as permanent statutory bodies (namely, the OSAC
under the PSO Act, the PSAG under the PS Act, and the PBRAC under
the PBR Act per Schedules 2, 3 and 5).
These bodies are proposed to be repealed and replaced with
ad hoc or informal consultation arrangements that will be managed on an
administrative basis by the relevant portfolio department (namely, the DEE in
the case of the OSAC and PSAG) or other portfolio agencies (namely, IP
Australia in the case of the PBAC).
The Bill is the second attempt to abolish the OSAC and the
PBRAC. The previous repeal legislation, the Omnibus
Repeal Day (Spring 2014) Bill 2014, lapsed on prorogation of the Parliament
in April 2016. The Senate opposed the repeal of these bodies and passed
amendments to omit these measures from that Bill. The House of Representatives
did not agree to those amendments.
In the abstract, the public policy objective of seeking to
improve flexibility and reduce expenses and administrative burdens associated
with the provision of independent advice (including expertise on technical
matters) to the government seems sound. Arguably, the perceived benefit in the
ongoing maintenance of statutory bodies should be weighed carefully against the
compliance costs and administrative burdens associated with meeting fixed statutory
requirements for their composition, governance and functions. One advantage
of administrative, rather than legislatively mandated, arrangements for
stakeholder consultation and engagement in the formulation of policy or
technical advice to the government is that administrative arrangements can be
readily tailored to suit individual tasks, and can be quickly adapted to meet
changing circumstances. The flexibility accorded by an administrative model may
therefore potentially enhance efficiency and produce savings.
However, the appropriate balance of considerations about
the most desirable form of consultative and expert advisory arrangements will vary
in individual cases, according to the particular advisory functions under
consideration, and the circumstances in which they are to be performed. While
the general principles set down in the Governance Policy administered by the
Department of Finance provide useful decision-making guidance on such matters,
their application to particular advisory functions will, arguably necessarily,
involve a degree of value judgment. There may be legitimate differences of
opinion about the most appropriate arrangements in specific scenarios.
One matter of caution in relation to proposals to abolish pre-existing
statutory advisory bodies, including several of the bodies proposed to be abolished
by the present Bill, is the risk of an actual or a perceived reduction in the quality
of independent advice to the Government on the regulatory matters for which
those bodies are responsible. Depending on the replacement arrangements
(including the degree of expertise presently available within Government) there
may also be resource implications in sourcing expertise that was previously
provided by a statutory advisory body. There may also be some potential for
greater limitations in the transparency of advice provided internally, given
that there is typically no requirement for formal reports documenting such
advice to be provided to the responsible Minister and tabled in Parliament, as
is often the case with the work of statutory advisory bodies.[135]
Accordingly, in practice, much may turn on the
specific nature of any new administrative arrangements that the Government has
implemented, or may intend to implement if the Bill is passed, to replace each
of the bodies proposed to be abolished. The extrinsic materials to the Bill and
other publicly available information do not appear to provide significant
insight into this matter. Two issues that may merit further scrutiny are
summarised below.
Scrutiny of replacement
stakeholder consultation and engagement arrangements, including costs
In particular, it remains to be seen how the Government’s
replacement consultation and advisory arrangements have given effect to the
policy underlying existing legislative requirements for the representative and
balanced composition of several advisory bodies.
For example, the legislation establishing the OSAC, the PSO
Act, requires the membership of that group to satisfy certain sectoral and
federal representational requirements, and prohibits the OSAC from being
composed of a majority of Commonwealth employees.[136]
The legislation establishing the PBRAC, the PBR Act, also contains certain
requirements to ensure that the composition of the PBRAC is representative of a
number of key governmental and non-governmental sectors with relevant expertise
and interests.[137]
Accordingly, the Parliament’s scrutiny of the case for the
abolition of these bodies and their replacement with administrative
arrangements might be assisted by the provision of more specific information
about the nature of any existing or proposed consultative arrangements that the
relevant portfolio departments or responsible portfolio agencies have
implemented (or will implement if the Bill is passed). This might include, for
example, information about whether a stakeholder engagement or consultation
strategy has been developed and implemented, including any consultations with
key stakeholders in the development of that strategy.[138]
There may also be value in obtaining information from the
relevant portfolio departments or responsible agencies about the degree of
technical expertise present within, or otherwise accessible to, those
departments; and any actual or estimated costs associated with accessing
external expertise as a result of the cessation of the relevant bodies.
Further, there may be value in the relevant portfolio
departments or agencies proactively publishing information about all of the advisory
and consultative arrangements that they have implemented to replace statutory
bodies which have ceased operating as part of the smaller government agenda. In
addition to enhancing Parliamentary scrutiny of the case for the proposed
legislative abolition of bodies (such as the present Bill), this may also
increase transparency for stakeholders and members of the wider community who
wish to engage with the Government in relation to the regulatory or policy matters
formerly covered by discontinued statutory bodies. This transparency could also
facilitate the continuous improvement of the consultative and other advisory
arrangements that have replaced, or will replace, statutory advisory bodies
that have ceased or will cease as part of the smaller government agenda.
Consideration of recent and
current legislative reviews of the PSO Act and the PS Act
An independent review of the PSO Act in 2013
recommended the expansion of the role of the OSAC, in apparent conflict with
the Government’s view that the OSAC is unnecessary and suitable for abolition.
The PSO Act is, or will soon be, due for a further four-yearly review. Further,
the PS Act is currently under review and its terms of reference appear
capable of extending to an examination of the role and functions of the PSAG
(or the arrangements for industry engagement and the provision of technical
advice to the government more broadly).
Members of the Parliament may therefore wish to consider
whether it may be preferable to await the outcomes of extant or imminent
reviews before making a decision about the future of the OSAC and PSAG.
Non-controversial
measures—repeal of apparently redundant bodies (Schedules 1, 4 and 6)
Finally, some bodies are proposed to be abolished because
their functions appear to have become redundant as a result of the cessation or
winding down of the regulatory schemes upon which they provided advice, or due
to the administrative practices of the agencies or officials to which they
provided advice upon request. (For example, the various tradespersons’
rights committees under the TRR Act, the ASADA Advisory Group under the ASADA
Act, and the Development Allowance Authority under the DAA Act per Schedules
1, 4 and 6). In these cases, the proposed amendments would appear
unlikely to have a substantial practical impact.
[1]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 4.
[2]. As
noted below, the proposal to abolish the Corporations and Markets Advisory
Committee (CAMAC) was initially announced in the 2014–15 Budget but the
relevant amending legislation lapsed upon the prorogation of the 44th
Parliament on 17 April 2016. The measures in Schedule 7 to the
present Bill largely replicate those in the lapsed Bill, the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014.
[3]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 4.
[4]. M
Cormann (Minister for Finance), Smaller
and more rational government: 2014–15, ministerial paper, Australian
Government, Canberra, May 2014, p. 8. See further, M Cormann (Minister for
Finance), Smaller government: towards a sustainable future,
ministerial paper, Australian Government, Canberra, December 2014, especially
Attachment A (decisions to rationalise Australian Government bodies).
[5]. See
further: Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 4; Cormann, May
2014, op. cit.; Cormann, December 2014, op. cit.; and Department of Finance
(DoF), ‘Governance
policy’, DoF website, 5 January 2017.
[6]. National Commission of Audit (NCoA), Towards responsible government: the report of the National
Commission of Audit: phase one, NCoA, Canberra,
February 2014, p. 204. See generally, chapter 9 and recommendation 56
(rationalising and streamlining government bodies).
[7]. NCoA, Towards responsible government: the report of the National
Commission of Audit: phase two, NCoA, Canberra,
March 2014, p. 88. See generally, part C, section 4.1 and
recommendations 14–15 (rationalisation of remaining agencies, boards and
committees).
[8]. Cormann,
May 2014, op. cit., pp. 4 and 30 (cessation of CAMAC) and Cormann, December
2014, op. cit., Attachment A (cessation of the other six bodies in the present
Bill, variously at p. 13 [OSAC and PSAG], p. 16 [ASADA
advisory group], p. 17 [tradespersons’ rights committees, referred to
collectively as the Central Trades Committee], p. 18 [PBAC] and p. 22 [DAA]).
[9]. NCoA,
Towards responsible government: phase two, op. cit., p. 136 (recommendation to consolidate PBRAC into the portfolio
department), p. 131 (recommendation to consolidate OSAC and PSAG into the
portfolio department), p. 133 (recommendation to review the ongoing need for
the ASADA Advisory Group), p. 137 (recommendation to review the ongoing need
for the tradespersons’ rights committees), p. 143 (recommendation to consolidate
CAMAC into the portfolio department; and recommendation to review options to
consolidate the statutory position of DAA into the Australian Taxation Office,
noting the position is currently held by the Commissioner of Taxation).
[10]. ASIC
Act, part 9, especially section 148 (functions of CAMAC).
[11]. Explanatory
Memorandum, Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014, pp. 5–6. See
further: J Murphy, Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, Bills digest, 71, 2014–15,
Parliamentary Library, 2015.
[12]. Treasury,
‘Cessation
of the Corporations and Markets Advisory Committee (CAMAC)’, The Treasury
website, 24 September 2014.
[13]. S
Ciobo (Parliamentary Secretary to the Treasurer), ‘Second
reading speech: Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014’, House
of Representatives, Debates, 4 December 2014, pp. 14245–6.
[14]. For
a summary, see: Senate Economics Legislation Committee, Inquiry
into the Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014, The
Senate, Canberra, March 2015, pp. 5–12.
[15]. Australia,
House of Representatives, ‘Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014’, Votes and proceedings, HVP 100, 2 March 2015, pp. 1158–1159.
[16]. Australia,
Senate, Journals,
80, 2013–15, 3 March 2015, p. 2230.
[17]. CAMAC, Corporate plan: 2016–17, CAMAC, Canberra, 2016, p. 1.
[18]. Ibid.,
p. 2. (See also: Australian Government, ‘Corporations
and Markets Advisory Committee (board)’, Directory website, n.d., which
indicates that the sole member is ASIC Chairperson Mr Greg Medcraft, whose
appointment commenced on 13 May 2016 and will end on 12 November
2017, which is concurrent with the term of his re-appointment as ASIC
Chairperson.)
[19]. Explanatory
Memorandum, Omnibus Repeal Day (Spring 2014) Bill 2014, pp. 22–23.
[20]. Australia,
Senate, Journals,
72, 2013–15, 2 December 2014, p. 1934.
[21]. Australia,
House of Representatives, ‘Omnibus
Repeal Day (Spring 2014) Bill 2014’, Votes and proceedings, HVP 110,
25 March 2015, pp. 1233–1234. The House provided a statement of reasons
(at p. 1234) which provided ‘[t]he repeal of these bodies would not prevent the
Department of the Environment from consulting and engaging with industry
experts on an as-needs basis without the need for costly permanent structures.
The proposed abolitions would not preclude the Department of the Environment
from seeking views from a broader range of organisations, experts and the
community in a more flexible and targeted way. A statutory process is not
required to facilitate this engagement’.
[22]. Australia,
Senate, Journals,
109, 2013–15, op. cit., pp. 2982–2984.
[23]. Senate
Selection of Bills Committee, Report,
8, 2017, The Senate, 10 August 2017, p. 3.
[24]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, The Senate, 9 August 2017, p. 32.
[25]. Senate
Economics Legislation Committee, op. cit., p. 12 at [2.52].
[26]. Ibid.,
p. 12 at [2.48]–[2.51].
[27]. Ibid.,
pp. 13–18 especially p. 18 at [1.30].
[28]. Ibid.,
p. 18 at [1.27]–[1.28]. See also the summary of stakeholders’ evidence at pp.
14–18, [1.10]–[1.26].
[29]. Senate
Selection of Bills Committee, Report,
14, 2014, The Senate, 30 October 2014, p. 4.
[30]. Senate
Standing Committee for the Scrutiny of Bills, Report,
1, 2015, The Senate, 11 February 2015, pp. 91–98; and Senate Standing Committee
for the Scrutiny of Bills, Alert
digest, 1, 2015, The Senate, 11 February 2015, p. 37.
[31]. Australia,
House of Representatives, ‘Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014’, Votes and proceedings, HVP 100, op. cit., p. 1158.
[32]. TM
Butler (Member for Griffith), ‘Second
reading speech: Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014’, House
of Representatives, Debates, 2
March 2015, pp. 1656–1657.
[33]. Australia,
House of Representatives, ‘Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014’, Votes and proceedings, HVP 100, op. cit., p. 1158.
[34]. H Aston, ‘Senate set to thwart Coalition bid to scrap respected law reform committee’, The Sydney Morning Herald, (online
edition), 11 May 2015. See also: A Hepworth,
‘Setback for CAMAC in Senate’, The
Australian, 18 March 2015, p. 21.
[35]. Australia,
Senate, Journals,
72, 2013–15, op. cit., p. 1934.
[36]. Australia,
Senate, Journals,
109, 2013–15, op. cit., pp. 2982–2984. (The Member for Melbourne also voted
against the Government’s motion in the House of Representatives that the
Senate’s amendments as passed in December 2014 be disagreed to. See: Australia,
House of Representatives, ‘Omnibus
Repeal Day (Spring 2014) Bill 2014’, Votes and proceedings, HVP 110,
op. cit., pp. 1233–1234.)
[37]. L
Waters, ‘In
committee: Omnibus Repeal Day (Spring 2014) Bill 2014’, Senate, Debates,
2 December 2014, p. 9826. See also: L Waters, Senate, Debates,
19 August 2015, p. 5688.
[38]. T
Burke (Manager of Opposition Business), ‘Second
reading speech: Omnibus Repeal Day (Spring 2014) Bill 2014’, House of
Representatives, Debates, 29 October 2014, p. 12382. (However, the
Senate Selection of Bills Committee decided not to refer the Bill to a
Committee for inquiry and report. See: Senate Selection of Bills Committee, Report,
14, 2014, op. cit., p. 4.)
[39]. Australia,
House of Representatives, ‘Omnibus
Repeal Day (Spring 2014) Bill 2014’, Votes and proceedings, HVP 110,
op. cit., pp. 1233–1234; and Australia, Senate, Journals,
109, 2013–15, op. cit., pp. 2982–2984. (A division does not appear to have been
called in relation to the Greens’ amendments in the Senate to omit the repeal
measures from the Bill. See: Australia, Senate, Journals,
72, 2013–15, op. cit., p. 1934.)
[40]. Australia,
House of Representatives, ‘Omnibus
Repeal Day (Spring 2014) Bill 2014’, Votes and proceedings, HVP 79,
29 October 2014, p. 946.
[41]. Australia,
House of Representatives, ‘Omnibus
Repeal Day (Spring 2014) Bill 2014’, Votes and proceedings, HVP 110,
op. cit., pp. 1233–1234.
[42]. Australia,
Senate, Journals,
109, 2013–15, op. cit., pp. 2982–2984.
[43]. The Treasury, ‘Cessation
of the Corporations and Markets Advisory Committee (CAMAC)’, op. cit.
[44]. Senate
Economics Legislation Committee, op. cit.
[45]. See,
for example, G Wilkins, ‘Reforms
a casualty in drive to cut “red tape”’, The Sydney Morning Herald,
14 June 2014, p. 5; and Aston, op. cit. See further, Murphy, op. cit., pp.
7–15.
[46]. Law
Council of Australia (Business Law Section), Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 4 March 2015; Law Council of
Australia (Business Law Section), Submission
to the Treasury, Australian Securities and Investments Commission Amendment (Corporations
and Markets Advisory Committee Abolition) Bill 2014: Exposure Draft, 22
October 2014. See also: Law Council of Australia (Business Law Section), Letter to the Hon Kelly O’Dwyer MP,
Minister for Small Business and Assistant Treasurer, 28 October 2015
(enclosing a copy of an earlier letter to the previous Assistant Treasurer
dated 11 June 2014).
[47]. Australian
Institute of Company Directors, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 4 March 2015; and Australian Institute
of Company Directors, Submission
to Treasury, Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014: Exposure Draft,
24 October 2014.
[48]. Australian
Restructuring Insolvency and Turnaround Association, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 17 February 2015; and
Australian Restructuring Insolvency and Turnaround Association, Submission
to Treasury, Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014: Exposure Draft,
9 October 2014.
[49]. Governance
Institute of Australia, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 3 March 2015; and Governance Institute
of Australia, Australian Institute of Company Directors, Chartered Accountants
Australia and New Zealand, and CPA Australia, Joint
submission to Treasury, Australian Securities and Investments Commission
Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014:
Exposure Draft, 24 October 2014.
[50]. Australian
Council of Superannuation Investors, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 2 March 2015.
[51]. Chartered
Accountants Australia and New Zealand, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 3 March 2015; and Governance
Institute of Australia; Australian Institute of Company Directors; Chartered
Accountants Australia and New Zealand; and CPA Australia, Joint
submission, op. cit.
[52]. CPA
Australia, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 4 March 2015. See also: Governance
Institute of Australia; Australian Institute of Company Directors; Chartered
Accountants Australia and New Zealand; and CPA Australia, Joint
submission, op. cit.
[53]. See,
for example, the following submissions
on the Exposure Draft of the Australian Securities and Investments Commission
Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014: Corporate Law Teachers’ Association, Mr Abe Herzberg, Professor Stephen Bottomley; and the Queensland University of
Technology Commercial Law and Property Research Centre.
[54]. See,
for example: Mr Vincent Jewell (former Deputy Director, CAMAC), Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 2 March 2015; Mr Vincent
Jewell, Submission
to Treasury, Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014: Exposure
Draft, 24 October 2014; and Mr Greg Vickery AO, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 27 February 2015.
[55]. Financial
Services Council, Submission
to the Senate Economics Legislation Committee, Inquiry into the Australian
Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014, 2 March 2015; and Financial
Services Council, Submission
to Treasury, Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014: Exposure
Draft, 24 October 2014.
[56]. Waters,
‘In
committee: Omnibus Repeal Day (Spring 2014) Bill 2014’, Senate, Debates,
op. cit., p. 9826.
[57]. IP Australia, Consultation paper: review of the Plant Breeder’s Rights Advisory
Committee, IP Australia, Canberra, September
2014.
[58]. See the following submissions on the consultation paper:
Law Council of Australia, Business Law Section, 31 October 2014; Law Institute
of Victoria, 31 October 2014; Australian Centre for Intellectual Property in
Agriculture, 27 October 2014; Institute of Patent and Trade Mark Attorneys
Australia, 31 October 2014; and Australian Seed Federation, October 2014. (See
also the submission of the NSW Farmers’
Association, 10 November 2014, which recommended the retention of the PBRAC.)
[59]. Law Institute of Victoria, Submission to IP Australia, Consultation
on the Plant Breeder’s Rights Advisory Committee, 31
October 2014, p. 2.
[60]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 6.
[61]. Ibid.,
p. 4. See also: Australian Government, ‘Agency
resourcing’, Budget measures: budget paper no. 4: 2017–18, May 2017,
p. 5; and P Hamilton, ‘Public sector staffing, organisation and
efficiencies’, Budget
review 2017–18, Research paper series, 2016–17, Parliamentary Library,
Canberra, 2017, pp. 86–87.
[62]. Explanatory
Memorandum, Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014, p. 3. This
figure is also cited in the Explanatory
Memorandum to the present Bill at p. 17 (notes on Schedule 7) although the
figure is not updated to reflect 2017–18 values, presumably because the body is
not operational. (However, its 2016–17 Corporate Plan indicates that it was
still constituted by one member in that financial year but had no staff: CAMAC,
op. cit., p. 2.)
[63]. See,
for example, Australian Government, Budget
measures: budget paper no. 2: 2014–15, May 2014, pp. 68, 109, 145, 163,
187 (examples of various bodies proposed to be abolished).
[64]. Cormann,
May 2014, op. cit., especially pp. 8–9 and Appendix B (consolidation of all
individual 2014–15 Budget measures detailed in Budget paper no. 2 with
respect to smaller government).
[65]. Cormann,
December 2014, op. cit., especially Attachment A (decisions to rationalise
Australian Government bodies, which provided an estimate of the savings
associated with the abolition or consolidation of each body over a five-year
period).
[66]. Cormann,
December 2014, op. cit., p. 13.
[67]. Ibid.
[68]. Ibid.,
p. 16 (ASADA advisory group and PBAC), p. 17 (tradespersons’
rights committees, referred to collectively as the Central Trades Committee)
and p. 22 (DAA).
[69]. For
completeness, it should also be noted that the Explanatory
Memorandum comments on a potential reduction in compliance costs for
certain taxpayers as a result of the abolition of the DAA as proposed in
Schedule 6. It states, at p. 15: ‘the abolition of the DAA will reduce
compliance costs for affected taxpayers by reducing the overall size of the tax
law. The overall magnitude of the compliance save is unquantifiable, but
expected to be small’.
[70]. The
Statement of Compatibility with Human Rights can be found at pp. 23–27 of the Explanatory
Memorandum to the Bill.
[71]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, pp. 24–25.
[72]. International
Covenant on Economic, Social and Cultural Rights, [1976] ATS 5, done in
New York on 16 December 1966 (entered into force generally 3
January 1976 and for Australia 10 March 1976).
[73]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, pp. 23–24.
[74]. International
Covenant on Civil and Political Rights, [1980] ATS 23, done in New York
on 16 December 1966 (entered into force generally 23 March 1976 and
for Australia 12 November 1980).
[75]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, pp. 26–27.
[76]. This
view appears to be consistent with the views of the Parliamentary Joint
Committee on Human Rights (PJCHR) on the Bill (discussed below). It also
appears to be consistent with the treatment of the previous proposals to
abolish CAMAC, the OSAC and PSAC by the PJCHR in 2014–2015. The PJCHR reported
that it had no comment on the proposed abolition of CAMAC in the 2014 Bill on
the basis that it did not raise human rights concerns: PJCHR, Human
rights scrutiny report, 18, 2015, Parliament of Australia, 10 February
2015, p. 1. The PJCHR’s commentary on the 2014 Omnibus Repeal Bill did not
comment substantively on the proposed abolition of the OSAC and PSAC: PJCHR, Human
rights scrutiny report, 22, 2015, Parliament of Australia, 13 May 2015,
pp. 174–182.
Arguably,
legislation to abolish a statutory body that reviews and provides merely
advisory (that is, non-self-executing) recommendations to the Government
about the operation and potential reform of legislation that engages human
rights may not (at least directly) engage any human rights, since those
recommendations have no legal force of their own, and are not the exclusive
source of independent review and advice to the government on the relevant
legislation.
However,
the PJCHR, as constituted in the 44th Parliament, appeared to take a different
view about the proposed abolition of another statutory office whose functions
are to provide merely advisory recommendations to the Government with respect
to other legislation—the Independent National Security Legislation Monitor
(INSLM) via the Independent
National Security Legislation Monitor Repeal Bill 2014, which proposed to
repeal the Independent
National Security Legislation Monitor Act 2010.
The PJCHR
considered that, because the counter-terrorism and national
security legislation that is subject to review by the INSLM engaged a range of
human rights, the specific advisory-based role of the INSLM was an important
safeguard to ensuring that the relevant laws subject to review did not
impermissibly limit those rights (notwithstanding the existence of a range of
other statutory and non-statutory oversight and review mechanisms, and the fact
that the recommendations of the INSLM had no legal force). On the basis of the
PJCHR’s views about the relevance of the INSLM’s advisory functions to the ultimate
human rights compatibility of the legislation within the INSLM’s mandate, the
PJCHR stated that it was unable to conclude that the repealing legislation was
compatible with human rights. See: PJCHR, Eighth report of the 44th Parliament,
Parliament of Australia, June 2014, pp. 47–50. (The Bill proposing to abolish
the Office of the INSLM did not proceed.)
[77]. PJCHR,
Human
rights scrutiny report, 7, 2017, Parliament of Australia, 8 August
2017, p. 36.
[78]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 8. See also: Department of Education and Training (DET), ‘Trades Recognition Australia’, DET
website, 2017.
[79]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 8. See also: DET, ‘Trades Recognition Service’, DET
website, n.d.
[80]. See
further: S O’Neill and F Walker, Tradesmen’s Rights Regulation Repeal Bill 1999, Bills digest, 184, 1998–99, Bills Digest Service, Information and
Research Services, Canberra, 19 May 1999.
[81]. See,
for example, M Ferguson, ‘Second reading speech: Trademen’s Rights Regulation Repeal Act 1999’; House of Representatives, Debates,
12 May 1999, p. 5284; Australia, House of Representatives, ‘Tradesmen’s Rights Regulation Repeal Bill 1999’, Votes and proceedings, HVP 36, 12
May 1999, p. 513; and Senate Standing Committee on Education and Employment, ‘Minority report: a report by Opposition Senators into the
Trasdesmen’s Rights Regulatoin Repeal Bill 1999’, Tradesmen’s Rights Regulation Repeal Bill 1999, The Senate, Canberra, 12 August 1999, (in which Australian Labor
Party senators did not support the passage of the Bill).
[82]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, pp. 8–9.
[83]. PSO
Act, part 3 especially Division 1 (sections 11–12) which establish and
prescribe the functions of OSAC. For further information about the PSO program, see: Department of the Environment and Energy (DEE), ‘Product Stewardship for Oil Program (PSO)’, DEE website, n.d. (In broad terms, ‘product stewardship’ means
actions by manufacturers, importers, sellers, users or disposers of products to
reduce the environmental and human health-related impacts of those products.
Product stewardship schemes can be regulatory (mandatory) or non-regulatory
(voluntary) or some combination (co-regulatory). In Australia, there is a
general regulatory framework established under the PS Act, and a regulatory framework specific to oil products under the PSO Act.)
[84]. Ibid.,
section 14.
[85]. Ibid.,
section 18.
[86]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 10. See also,
PSO Act, subsection 22(2) (meetings of OSAC) and section 36 (statutory
review requirement of the PSO Act).
[87]. Omnibus
Repeal Day (Spring 2014) Bill 2014, Schedule 3, part 2. See further:
Cormann, December 2014, op. cit., p. 13.
[88]. Australian
Government, ‘Oil
Stewardship Advisory Council’, Directory website, n.d. (It is not clear for
how long the OSAC’s membership has been vacant, however, a list of the membership as at 31 August 2009 is accessible at: DEE, ‘Oil
Stewardship Advisory Council’, DEE website, n.d.)
[89]. In
August 2015, the Department of Environment and Energy advised the Senate
Standing Committee on Environment and Communications that the Minister had
written to the Chair of the OSAC and the Chair of PSAC (discussed below) to
advise them that meetings of these bodies would not be convened in anticipation
of their legislative repeal. See: Senate Standing Committee on Environment and
Communications Legislation Committee, Answers to Questions on Notice,
Environment Portfolio, Budget Estimates 2014–15, Question
148: waste and advisory bodies, 20 August 2015, p. 1.
[90]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 10.
[91]. Ibid.
[92]. Explanatory
Memorandum, Omnibus Repeal Day (Spring 2014) Bill 2014, p. 23.
[93]. Aither, Third independent review of the Product Stewardship (Oil) Act 2000:
final report, report prepared for the
Department of the Environment, Department of the Environment, Canberra, September
2013, p. 89 (recommendation 9).
[94]. Ibid.
[95]. Ibid.
[96]. Ibid.,
p. 91.
[97]. PS
Act, subsection 108B(2). See also: DEE, ‘Product Stewardship Advisory Group’, DEE
website, n.d.
[98]. Ibid.,
Schedule 1, subitem 2(1).
[99]. Ibid.,
Schedule 1, subitem 1(1).
[100]. Ibid.,
Schedule 1, subitems 2(2) and 2(3).
[101]. Ibid.,
Schedule 1, item 4 and Product Stewardship
(Advisory Group) Regulation 2012.
[102]. Cormann,
December 2014, op. cit., p. 13; and Omnibus
Repeal Day (Spring 2014) Bill 2014, Schedule 3, part 1.
[103]. Australian
Government, ‘Product
Stewardship Advisory Group’, Directory website, n.d.
[104]. Senate
Standing Committee on Environment and Communications Legislation Committee,
Answers to Questions on Notice, Environment Portfolio, Budget Estimates
2014–15, Question
148: waste and advisory bodies, op. cit., p. 1.
[105]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 11.
[106]. Explanatory
Memorandum, Omnibus Repeal Day (Spring 2014) Bill 2014, p. 22.
[107]. PS
Act, section 109. See also: J Frydenberg (Minister for the
Environment and Energy), Review of the Product Stewardship Act 2011, media release, 10 March 2017 (a copy of the review’s terms of
reference is annexed to this media release); and: DEE, ‘Product stewardship’, DEE website, n.d.
[108]. Frydenberg,
op. cit.
[109]. Ibid.
[110]. Ibid.
[111]. ASADA
Act, section 25A.
[112]. Ibid.,
section 39.
[113]. Ibid.,
sections 26 and 27.
[114]. Ibid.,
section 30. The Australian
Sports Anti-Doping Authority Regulations 2006 do not appear to contain any
such Regulations.
[115]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 12. See also:
Australian Government, ‘ASADA
Advisory Group’, Directory website, n.d.
[116]. PBR
Act, subsection 64(1).
[117]. Ibid.,
subsection 64(3) and section 65.
[118]. Australian
Government, ‘Plant
Breeder's Rights Advisory Committee’, Directory website, n.d.
[119]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 14. (However,
it appears that a portfolio agency, IP Australia, has taken over the functions
of the PBRAC rather than the Department of Industry, Innovation and Science.
See: Australian Government, ‘Plant
Breeder's Rights Advisory Committee’, Directory website, n.d.; and Cormann,
December 2014, op. cit., p. 16.)
[120]. Ibid.
[121]. IP Australia, Consultation paper: review of the Plant Breeder’s Rights Advisory
Committee, op. cit., p. 3.
[122]. Ibid.,
p. 4.
[123]. Ibid.,
pp. 4–5. (As mentioned above, stakeholder feedback appeared to divide between
option 1 and a combination of options 1 and 3).
[124]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 15. The other
four Acts proposed to be amended by Schedule 6 are: the Airports
(Transitional) Act 1996; the Income Tax
Assessment Act 1936; the Income Tax
Assessment Act 1997; and the Taxation
Administration Act 1953. As the Explanatory Memorandum also
notes (at p. 15) the repeal of the DAA Act and the ICCT Act and
Division 16L of the ITAA 1936 will result in the Development Allowance
Authority Regulations lapsing. Presumably the Government will make an
amending regulation to repeal them if the Bill is passed.
[125]. Explanatory
Memorandum, Statute Update (Smaller Government) Bill 2017, p. 15.
[126]. Ibid.
See also: Australian Government, ‘Development
Allowance Authority’, Directory website, n.d., which states that no
applications have been called for since 2004 when it was announced that the
scheme was being phased out, and that the Commissioner for Taxation has held
the office of DAA since 2009.
[127]. See
further, Explanatory Memorandum,
Statute Update (Smaller Government) Bill 2017, pp. 18–22.
[128]. Ibid.,
p. 17.
[129]. Ibid.
[130]. See,
for example, the summary of stakeholder views in Senate Economics Legislation
Committee, op. cit., pp. 6–12.
[131]. The
Explanatory Memorandum refers only to consultations with Commonwealth entities
and, where relevant, states: Explanatory Memorandum,
Statute Update (Smaller Government) Bill 2017, p. 4.
[132]. See,
for example, Explanatory
Memorandum, Statute Update Bill 2016, p. 2 (Act No. 61 of 2016);
and Explanatory
Memorandum, Statute Update (Winter 2017) Bill 2017, p. 2 (presently
before the Parliament). While it is acknowledged that the long title of the
present Bill refers expressly to its purpose of abolishing certain statutory
entities, it should also be noted that the long titles of Bills are not
featured in the daily programs of each House of Parliament and may therefore
not come readily to the attention of stakeholders and the public.
[133]. Ciobo,
op. cit., pp. 14245–46.
[134]. That
is, the retention of CAMAC’s establishing legislation (even if CAMAC is not
operational in the immediate future) could facilitate its revival, if desired
in future, through executive action such as the making of appointments and the
referral of matters for advice. If part 9 of the ASIC Act were not
repealed as proposed in Schedule 7, an appropriation would be the only
form of legislative action required to revive CAMAC.
[135]. In
addition to the removal of statutory reporting requirements, including the
Parliamentary tabling of statutory advisory bodies’ reports to the government,
the effective ‘insourcing’ to policy departments of the advisory functions
previously performed by independent statutory entities might increase the
possibility that interested stakeholders or members of the public may need to
have recourse to the access regime under the Freedom of
Information Act 1982 (FOI Act) to obtain the same degree
of information about advice provided to the government.
In
addition to the policy merits (or otherwise) of any shift from a legal
obligation to publish to a scheme of individual application-based access, this
course of action may also lead to successful claims, or disputes about the
application, of exemptions available under the FOI Act in relation to
departmental advice that would otherwise have been published as part of the
advisory reports of the former independent statutory bodies, had they been
retained. For example, the conditional public interest exemption in
section 47C of the FOI Act for deliberative process documents might be
claimed. In some cases, there may conceivably be argument about whether
disclosure of deliberative matter would be contrary to the public interest
(per the public interest test set down under paragraph 31B(b), subsection
11A(5) and section 11B). There may also be argument about the application of
the exclusion of scientific and technical reports from the deliberative process
exemption in paragraph 47C(3)(a). Notably, this exclusion has been construed
narrowly to cover the sciences in a strict sense (namely, physics, chemistry,
astronomy, biology and earth sciences) and technical matters as involving the
application of science (as defined narrowly). The social sciences (including,
for example, economics) are not regarded as scientific matters for the purposes
of the exclusion from the deliberative process exemption from disclosure in
paragraph 47C(3)(a). Hence, the deliberative process exemption can be claimed
in relation to expert advice on subject matter within the social sciences. See:
Office of the Australian Information Commissioner, Freedom
of information guidelines, version 1.3, December 2016, pp. 14–15
at paragraphs [6.75]–[6.77] and the cases cited at footnotes 58–60.
[136]. PSO
Act, section 14, especially subsections 14(2) and (3).
[137]. PBR
Act, subsection 64(1).
[138]. For
example, as mentioned above, IP Australia issued a consultation paper about
non-legislative options to replace the PBRAC in September 2014, following the
Government’s decision to abolish that body. (See: IP Australia, op. cit.). The
outcome of any decision made on the replacement consultation arrangements is
not identified in the extrinsic materials to the Bill. It is also unknown
whether other portfolio departments or agencies assuming the functions of the
six other bodies proposed to be abolished by the Bill have undertaken similar
processes for identifying stakeholder engagement or consultation arrangements
or strategies to replace the relevant bodies and, if so, the outcomes of those
processes (including the identification and analysis of different options,
including their respective resource implications).
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