Bills Digest no. 73, 2017–18
PDF version [251KB]
Philip Hamilton
Politics and Public Administration Section
6 February 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
National Capital Authority
‘Agency head’ and ‘Accountable
authority’
Directions
Committee consideration
Senate Standing Committee for
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Absence of a review
Commencement
Accountable authority
Directions amendments
Media reporting on directions prior
to introduction of the Bill
Directions by the Minister to the
Authority
Directions by the Authority to the
Chief Executive
Effect of the
directions amendments
Date introduced: 6
December 2017
House: Senate
Portfolio: Local
Government and Territories
Commencement: 1
July 2018
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 February 2018.
Purpose of
the Bill
The purpose of the Australian Capital Territory (Planning
and Land Management) Amendment Bill 2017 (the Bill) is to amend the Australian
Capital Territory (Planning and Land Management) Act 1988 (ACT (PALM) Act) to amend governance arrangements for
the National Capital Authority (NCA).[1]
Structure
of the Bill
The Bill comprises one Schedule divided into two Parts:
- Part
1 comprises proposed amendments to the ACT (PALM) Act.
- Part 2 comprises saving and transitional provisions.
Background
National
Capital Authority
Established by the ACT (PALM) Act
when the ACT was granted self-government, the NCA manages the interests of the
Commonwealth in Canberra, with particular focus on the planning and management
of major Commonwealth assets in nationally important areas. As noted by the Explanatory
Memorandum to the Bill:
... these assets are a broad collection of public open spaces,
lakes, dams, memorials, infrastructure and buildings. The NCA also prepares and
administers the National Capital Plan, and reviews and proposes amendments as
necessary.[2]
The NCA’s governing board (referred to in the ACT
(PALM) Act as the Authority) comprises a Chairperson and four
members appointed by the Governor-General for a period of up to five years.[3]
If the Chairperson is appointed on a part‑time basis (as is currently the
case), a full-time Chief Executive and three part-time non‑executive
members are appointed.[4]
In December 2017 the Government announced the appointment
of Ms Sally Barnes as Chief Executive, with her appointment to commence on
11 February 2018.[5]
The previous Chief Executive, Mr Malcolm Snow, resigned in July 2017 after
serving almost four years of a five-year term to take up a senior planning role
with the ACT Government.[6]
‘Agency
head’ and ‘Accountable authority’
In the Commonwealth public sector, responsibility for the
management of each Commonwealth entity is assigned under two statutory regimes.
-
Legislation such as the Public Service Act
1999 (PS Act), or the specific legislation that establishes a
particular agency, assigns responsibility for management functions (typically
including staffing) to a CEO-type position. Agency head is the
term used in the PS Act to describe CEO-type positions such as the
Secretary of a Department.[7]
The ACT (PALM) Act establishes that for the purposes of the PS Act
the Chief Executive is the head of the NCA.[8]
- Accountable authority is the term used in the Public Governance,
Performance and Accountability Act 2013 (PGPA Act) to assign
responsibility for reporting and accountability for the use and management of
public resources.[9]
Currently, the ACT (PALM) Act designates the Chief Executive of the NCA as
the accountable
authority.[10]
These Acts operate so that the roles of agency head and
accountable authority are in some cases performed by the same person and in some
cases are not. For instance, the Secretary of a Department will always be the
agency head and the accountable authority.[11]
The Bill separates the roles, so that the NCA’s Chief Executive remains as the
head of the entity for the purposes of the PS Act, but the Authority (of
which the Chief Executive is a member) would become the accountable authority
for the purposes of the PGPA Act.[12]
Directions
Described by the Explanatory
Memorandum as amendments that ‘clarify the Minister’s existing powers’,[13]
the Bill also proposes to insert ‘must comply’ provisions in relation to directions
issued by the Minister to the Authority, and directions issued by the Authority
to the Chief Executive. Currently, the expression ‘must comply’ does not occur
in the ACT (PALM) Act.
Committee
consideration
At a meeting on 6 December 2017, the Senate Standing Committee for
Selection of Bills deferred consideration of the Bill to its next
meeting.[14]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest, the Senate
Standing Committee for the Scrutiny of Bills had not reported on the Bill.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest, non-government
parties and independents had not expressed their positions in relation to the
Bill.
Position of
major interest groups
The Explanatory
Memorandum notes that the NCA and other relevant Government entities have
been consulted about the Bill, but does not indicate that major interest groups
have been consulted.[15]
The Parliament’s Joint Standing Committee
on the National Capital and External Territories (JSCNCET) holds a public
hearing with the NCA every six months.[16] At hearings in November and December 2016 and June and December 2017
there was no discussion of the NCA’s current or
proposed governance arrangements (except to note Chief Executive acting arrangements following the departure of
Malcolm Snow).[17]
This could be interpreted as evidence
that major interest groups do not have strong views about the NCA’s governance
arrangements. Alternatively, it could indicate a lack of awareness of the Bill,
which was introduced into the Senate the day before the JSCNCET hearing of
7 December 2017.
Financial
implications
The Explanatory Memorandum states
that ‘this Bill would have no financial impact’.[18]
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 because ‘it does not raise any human rights issues’.[19]
Parliamentary
Joint Committee on Human Rights
At the time of writing this Bills Digest, the Parliamentary
Joint Committee on Human Rights had not reported on the Bill.
Key issues
and provisions
Absence of a review
A recent review of governance of the Great Barrier Reef
Marine Park Authority observed that ‘there is no definitive guidance to support
the selection of an appropriate governance model for public sector entities’.[20]
General information and guidance about governance policy is available from the
Department of Finance, which further recommends that ‘the governance
policy can ... be used to review whether a body’s governance arrangements remain
fit-for-purpose’.[21]
There is no indication that the NCA’s
governance arrangements have been either problematic or subject to review—and
so the rationale for the amendments in this Bill is not known. Whilst the Bill’s Explanatory Memorandum states that
current arrangements ‘[do] not provide decision making within the NCA
with sufficient oversight and transparency, nor provide the requisite support
to the Minister’, the basis for the statement is not known.[22]
In contrast, in several recent examples substantive
independent reviews preceded changes to entities’ governance arrangements.[23]
Commencement
The Bill proposes that all amendments
would commence on 1 July 2018.[24]
Accountable
authority
Section 5 of the ACT (PALM) Act establishes and
names the Authority. The Bill repeals and replaces paragraph 5(2)(b) of
the ACT (PALM) Act to designate the Authority as the accountable
authority under the PGPA Act.[25]
Currently, the Chief Executive is the accountable authority.
The option for the accountable authority of a non-corporate
Commonwealth Entity (NCE) to consist of a group of people (such as a
governing board) rather than an individual was a new provision that became
available when the PGPA Act came into effect on 1 July 2014.[26]
Prior to the enactment of the PGPA Act, the Financial
Management and Accountability Act 1997 required that the relevant
duties at an NCE be performed by the Chief Executive.[27]
The Australian Organ and Tissue Donation and
Transplantation Authority (OTA) was the first NCE at which a group of
people was designated as the accountable authority. In November 2016,
amendments were passed to replace the Advisory Council of the OTA
with a governing Board that also assumed some of the responsibilities
previously assigned to the OTA’s CEO, including the role of accountable
authority.[28]
The CEO of the OTA continues to be the head of the entity for the purposes of
the PS Act.[29]
The OTA is therefore an example of arrangements at a listed entity where the
roles of agency head and accountable authority have been
separated, and assigned to a CEO and a board, respectively.
However, the OTA differed from the NCA in
that, in accordance with review recommendations, the split of responsibilities
coincided with a major reconstitution of the Board’s role and the skills base
of its membership.[30]
As previously stated, no such need has been identified at the NCA.
Item 2 of Part 1 of the Bill repeals existing
subparagraphs 5(2)(c)(i) and (ii) of the ACT (PALM) Act and inserts proposed
subparagraph 5(2)(c)(i). This is a consequential amendment which specifies
that members of the Authority are officials of the NCA for the purposes of the PGPA
Act. Officials have various duties under the PGPA Act (see Division
3 of Part 2-2 of the PGPA Act). For example, section 25 of the PGPA
Act requires officials to perform their roles with care and diligence which
is an appropriate obligation for an accountable authority.
Directions amendments
Media reporting
on directions prior to introduction of the Bill
Ministerial directions were mentioned in media coverage of
the NCA’s involvement in the approvals process for a music festival in
Commonwealth Park, Canberra in November 2017, particularly in relation to a
proposal for pill-testing. A number of parties were involved (the NCA, the
ACT Government, the festival promoter and the provider of the proposed
pill-testing service) and various perspectives of the process have been
reported in the media.[31]
At the JSCNCET hearing on 7 December 2017, the NCA
summarised the matter:
In September 2017 the media reported the ACT government had
approved pill testing for the upcoming Spilt Milk festival. Spilt Milk is an all-day-and-night
music festival, attracting 26,000 people aged between 18 and 24. The NCA were
not advised of this decision prior to the announcement and, as the event was to
be held on national land, requested information about the process for approving
pill testing on land that effectively was not managed by the ACT government.
The NCA requested information pertaining to the legal framework within this
decision and the extent of liability as to the approval authority should an
incident occur.
In October 2017, after meetings with the ACT government, the
organisers of Spilt Milk announced that they would not hold pill testing at the
festival and applied for an event permit. The event went ahead in November
without pill testing. However, there was considerable national media coverage
in relation to the testing at the festival, some of which made reference to the
NCA. I make the statement that the NCA is a statutory authority independent of
external and government influences.[32]
For the purposes of this Digest, it is relevant that media
reports indicate that in September 2017 a letter was sent from the ACT Shadow
Attorney-General to the Commonwealth ministers for Health and Local Government
and Territories, noting the latter minister’s capacity to give the Authority
general directions in writing as to the performance of its functions.[33]
On 14 October 2017, after it became apparent that pill-testing would not occur
at the festival, it was reported that ‘it is unclear what action, if any,
either minister took’ in response to the letter.[34]
Directions
by the Minister to the Authority
Currently, section 7 of the ACT (PALM) Act provides that ‘the
Minister may give the Authority general directions in writing as to the
performance of its functions’ and requires particulars of any directions to be
included in the NCA’s annual report. Section 7 will be repealed and replaced by
item 3 of Schedule 1 to the Bill. Proposed subsections 7(1) and (2)
would provide that the Minister may give general directions to the Authority by
legislative instrument, with which the Authority ‘must comply’.[35]
Such directions are not subject to disallowance or sunsetting.[36]
The amendment restates the Minister’s power to give general
directions. This means that it is not open to the Minister to give the
Authority a direction which is specific to a matter under its consideration.
However, the Bill makes clear that a Ministerial direction must be complied
with. Essentially this makes explicit a power which is currently implicit.
Directions
by the Authority to the Chief Executive
Currently, section 46 of the ACT (PALM) Act
provides that ‘the Chief Executive has the responsibility of managing the
affairs of the Authority under the general directions of the Authority’. Item
4 of Schedule 1 to the Bill will repeal and replace section 46. Proposed
subsections 46(1) and (2) would provide that the Chief Executive has
responsibility for managing the affairs of the Authority and that the Authority
may give written directions to the Chief Executive as to that management. The
proposed provisions do not restrict these to ‘general’ directions, as is the
case with the current provision. Proposed subsections 46(3) and (4)
would provide that the Chief Executive ‘must comply’ with a direction by the
Authority, except to the extent that the direction relates to the Chief
Executive’s functions under the PS Act.
The amendment would change the
relationship between the Authority and the Chief Executive, with a ‘hands-on’
role foreshadowed for the Authority. The Bill’s Explanatory
Memorandum states that the amendment will:
enable the Authority to influence the operations of the NCA ...
[while] ensur[ing] that the Chief Executive’s autonomy is preserved when it
comes to decisions relating to the employment of staff at the NCA. For example,
the Authority will be able to direct the Chief Executive to allocate additional
resources in a particular area but will not have the ability to direct the
Chief Executive to employ particular individuals.[37]
Similarly, the second reading speech to the Bill anticipates
that:
While the Authority would take on a greater
role in oversighting corporate management, most day-to-day operations
would still be handled by the Chief Executive.’[38] [underlining added]
Effect of the directions amendments
The combined effect of proposed
subsections 7(2) and 46(3) would be to create compliance obligations from
the Minister, through the Authority, to the Chief Executive.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. From
1989 to 1996 the name of the entity was the National Capital Planning
Authority.
[2]. Explanatory
Memorandum, Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017,
p. 2.
[3]. ACT (PALM) Act,
sections 33 and 36. Members may be appointed for more than one term.
[4]. Ibid., subsection
33(4).
[5]. D
Chester (Minister for Infrastructure and Transport), Sally
Barnes appointed Chief Executive of NCA, media release, 14 December
2018.
[6]. J
Briggs (Assistant Minister for Infrastructure and Regional
Development), National Capital Authority welcomes new Chief Executive, media release, 19 December 2013; T Weber (Chair, National Capital
Authority), Evidence to Joint Standing Committee on the National Capital and
External Territories, Review of the
National Capital Authority: biannual public briefings,
(proof), 7 December 2017, p. 2.
[7]. PS Act,
section 7.
[8]. ACT (PALM) Act,
paragraph 47(2)(b).
[9]. PGPA Act,
section 12.
[10]. ACT (PALM) Act,
paragraph 5(2)(b).
[11]. PGPA Act,
section 12.
[12]. Explanatory
Memorandum, Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017,
p. 2.
[13]. Ibid.
[14]. Senate
Standing Committee for Selection of Bills, Report,
15, 2017, The Senate, Canberra, 7 December 2017.
[15]. Explanatory
Memorandum, Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017,
p. 2.
[16]. Joint Standing Committee on the National Capital and External Territories,
Review of the National Capital Authority: Biannual public briefings homepage, Parliament of
Australia website.
[17]. T Weber (Chair, National Capital Authority), Evidence to Joint Standing Committee on the National Capital and
External Territories, op. cit., p. 2.
[18]. Explanatory
Memorandum, Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017,
p. 3.
[19]. The
Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory
Memorandum to the Bill.
[20]. W
Craik, Review
of governance of the Great Barrier Reef Marine Park Authority,
Department of the Environment and Energy, report, Canberra, July 2017, p. 43.
[21]. Department
of Finance, ‘Reviewing existing Commonwealth bodies’, Department of
Finance website, last updated 18 December 2015.
[22]. Explanatory
Memorandum, Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017, p. 2.
[23]. Changes to the Australian Organ and Tissue Donation and Transplantation
Authority (OTA) in 2016 were preceded by a Review
of the implementation of the national reform agenda on organ and tissue
donation and transplantation, Department of Health, August 2015. The
establishment of the Australian Digital Health Agency in 2016 to replace the
National E-Health Transition Authority Ltd was preceded by the Review
of the personally controlled electronic health record, [Department of
Health], December 2013. Governance
arrangements for the Great Barrier Reef Marine Park Authority (GBRMPA) would be
changed by the Great
Barrier Reef Marine Park Amendment (Authority Governance and Other Matters)
Bill 2017 currently before Parliament. This Bill was preceded by the Review
of governance of the Great Barrier Reef Marine Park Authority.
[24]. Clause
2 of the Bill.
[25]. Inserted
by item 1 in Part 1 of Schedule 1 to the Bill.
[26].
For further information about the introduction of the PGPA Act
see D Weight and N Horne, Public
Governance, Performance and Accountability Bill 2013, Bills digest,
162, 2012–13, Parliamentary Library, Canberra, 2013.
[27]. Financial
Management and Accountability Act 1997, section 44.
[28]. P
Hamilton, ‘Australian Organ and Tissue Donation and Transplantation Authority
Amendment (New Governance Arrangements) Bill 2016’, FlagPost,
Parliamentary Library blog, 23 November 2016.
[29]. Australian
Organ and Tissue Donation and Transplantation Authority Act 2008, paragraph 25(2)(b).
[30]. Department
of Health, Review
of the implementation of the national reform agenda on organ and tissue
donation and transplantation, op. cit., pp. 45–6.
[31]. L
Cooper, ‘Pill testing at Spilt Milk Festival reportedly won't be happening’, The Huffington Post Australia, 12 October 2017; S
Groch and D Burdon, ‘Denials
of political influence on pill testing’, The Canberra Times,
14 October 2017, p. 1; J Dale, ‘What exactly happened with Aussie fest Spilt Milk's failed pill testing
trial?’, TheMusic.com.au, 24 November
2017.
[32]. T Weber (Chair, National Capital Authority), Evidence to Joint Standing Committee on the National Capital and
External Territories, op. cit., p. 1.
[33]. ABC
Radio Canberra, ‘Pill
testing advocate says “pressure”, not lack of documentation, to blame for
abandoned Spilt Milk trial’, ABC news, (online edition),
13 October 2017.
[34]. S
Groch and D Burdon, ‘Denials of political
influence on pill testing’,
The Canberra Times, 14 October 2017, p. 1.
[35]. Proposed
subsection 7(3) would provide an exception such that the Authority is not
required to comply to the extent that a direction relates to the Authority’s
performance of functions or exercise of powers under the PGPA Act.
This reflects the Authority’s proposed role as the accountable authority of the
NCA. Proposed subsection 7(4) would provide that Ministerial directions
would continue to be reported in the NCA’s annual report.
[36]. Legislation
(Exemptions and Other Matters) Regulation 2015, section 9, table item 2;
section 11, table item 3.
[37]. Explanatory
Memorandum, Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017,
pp. 5–6.
[38]. J
McGrath (Assistant Minister to the Prime Minister), ‘Second
reading speech: Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017’, Senate, Debates, 6 December 2017, p.
9897.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth
Coat of Arms, and to the extent that copyright subsists in a third party,
this publication, its logo and front page design are licensed under a Creative Commons
Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and
communicate this work in its current form for all non-commercial purposes, as
long as you attribute the work to the author and abide by the other licence
terms. The work cannot be adapted or modified in any way. Content from this
publication should be attributed in the following way: Author(s), Title of
publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists
in third party quotes it remains with the original owner and permission may
be required to reuse the material.
Inquiries regarding the licence and
any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament.
They are produced under time and resource constraints and aim to be available
in time for debate in the Chambers. The views expressed in Bills Digests do
not reflect an official position of the Australian Parliamentary Library, nor
do they constitute professional legal opinion. Bills Digests reflect the
relevant legislation as introduced and do not canvass subsequent amendments
or developments. Other sources should be consulted to determine the official
status of the Bill.
Any concerns or complaints should be
directed to the Parliamentary Librarian. Parliamentary Library staff are
available to discuss the contents of publications with Senators and Members
and their staff. To access this service, clients may contact the author or
the Library’s Central Enquiry Point for referral.