BILLS DIGEST NO. 127, 2017–18
PDF version [561KB]
Roger Beckmann and Emily Hanna
Science, Technology, Environment and Resources Section
position of non-government parties/independents
Compatibility with Human Rights
Date introduced: 28
House: House of
Portfolio: Jobs and
Commencement: 1 July
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
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
The purpose of the Australian Astronomical Observatory
(Transition) Bill 2018 (the Bill) is to amend the Australian
Astronomical Observatory Act 2010 and to repeal the Australian
Astronomical Observatory (Transitional Provisions) Act 2010. The
proposed amendments would remove the Australian Astronomical Observatory (AAO)
from within the Department of Industry, Innovation and Science (DIISR) from 1
July 2018 and place it—along with its assets, liabilities and other matters—under
consortia comprised of relevant universities. The Bill also provides the
legislative basis for continuing departmental activities to facilitate the
transition of the AAO, and to support the recently created (July 2017) Australia-European
Southern Observatory (ESO) Strategic Partnership. By
transferring the AAO from the Government to the research sector, the Bill
will help implement the Government’s 2017–18 Budget measure ‘Maintaining
Australia’s Optical Astronomy Capability’.
of the Bill
This Bill is divided into two schedules. Schedule 1
contains two parts:
- Part 1 contains a number of amendments to the Australian
Astronomical Observatory Act and
- Part 2 repeals the whole of the Australian Astronomical
Observatory (Transitional Provisions) Act.
Schedule 2 contains transitional provisions and
consists of four parts:
- Part 1 contains preliminary provisions, including definitions
and extra-territorial operation
- Part 2 covers assets and liabilities and
- Parts 3 and 4 cover transfer of other matters and
In July 2015, the National Committee for Astronomy of the
Australian Academy of Science published Australia
in the Era of Global Astronomy, its plan for Australian astronomy for
the decade 2016–2025.
The Bill sits within the context of this report, which highlighted the need for
access to larger telescopes for optical and infra-red astronomy, continued
development of instrumentation capacity in Australia, and the need for
continued partnership between observatories and universities.
Currently, the Australian Astronomical Observatory (AAO) is
a division of the Department of Industry, Innovation and Science (DIISR). The
AAO operates the Anglo-Australian telescope (AAT), amongst others, on
behalf of the astronomical community of Australia. The AAO was known as the
Anglo-Australian Observatory until July 2010, when the Australian Government
took full ownership of the AAT following the withdrawal of the UK Government
from the project. As part of the DIISR, the Observatory is funded by the
Australian Government. Its function is to provide world-class observing
facilities for Australian optical astronomers.
The AAO is headquartered in North Ryde, Sydney, and the
3.9 metre AAT (as it is still called) is on land owned by the Australian
National University (ANU) at the Siding Spring Observatory, near Coonabarabran,
Although the AAT is still in regular use, Australian astronomy needs more access
to the current generation of far larger (8-metre) optical and infra-red telescopes.
Such instruments are located in Chile, and are operated by the ESO, a
consortium representing astronomers from 15 nations.
In July 2017, the Australian Government entered into a 10-year
strategic partnership with the ESO, which will help provide access to the
necessary large telescopes for Australian researchers.
Much future Australian astronomy research is likely to involve multi-national
collaboration using the Chile-based instruments. Accordingly, funding for the
operation of the AAO (and therefore for the much smaller AAT) was due to cease
by 30 June 2020. However, as the AAT is still functional, it is feasible to
continue its operational life, which would allow its use as a testbed for new
instrumentation innovations, as well as a local observatory for Australia.
Under the terms proposed by the Bill, the AAT could continue until 2024–25,
operated by the ANU on behalf of a consortium of universities managed by the existing
not-for-profit company Astronomy
Australia Limited (AAL). (Note that this is incorrectly described in
the Bill’s Explanatory Memorandum as Australia Astronomy Limited.) The AAO’s
astronomical activities, assets and staff will transfer from the Commonwealth
to the new university consortium.
Over time, Australia has also developed considerable capacity
for astronomical instrumentation, and this currently resides with the AAO at
North Ryde. Under the Bill, this would be transferred to a consortium of
Macquarie University, the ANU, and the University of Sydney. The second reading
speech states that the ongoing instrumentation work will be supported by
Astronomy Australia Limited, which is part of the National Collaborative
Research Infrastructure Strategy (NCRIS).
It appears to be the Government’s intention, as stated in the speech, that the
new consortium could help commercialise Australian innovations derived from
Director-General of the ESO, Professor Tim de Zeeuw, was
quoted as saying that Australia's expertise in astronomical technology
(including advanced adaptive optics and fibre-optics) is ideally matched with
ESO's instrumentation programme, and that Australia will benefit from access to
industrial, instrumentation and scientific opportunities at ESO's La Silla
Paranal Observatory in Chile.
Senate Standing Committee for
Selection of Bills Committee
The Selection of Bills Committee recommended that the Bill
not be referred to a committee for inquiry.
Senate Standing Committee for the
Scrutiny of Bills
The Standing Committee for the Scrutiny of Bills had no
comment on the Bill.
position of non-government parties/independents
Labor welcomed ‘the decision of the government to join the
European Southern Observatory’ after the relevant 2017 Budget announcement. At that time,
Labor was ‘concerned at the lack of detail around plans to change the ownership
of the Anglo-Australian Telescope’.
Labor has stated its ‘reluctant support’ for the Bill,
noting that without ALP support the ‘the Bill's failure would result in the
closure of the Anglo-Australian Telescope and the Australian Astronomical
Observatory laboratories in 2020’.
Labor also claimed that the transition is likely to result in job losses at
both the AAT and the instrumentation facilities at North Ryde.
Independents do not appear to have commented on the Bill
at the time of writing this Bills Digest.
Position of major interest
Stakeholders responded positively after the relevant 2017
Budget announcement. Organisations such as Science and Technology Australia
welcomed ‘the boost to Australia’s astronomy research program, which will
ensure Australia is poised to better collaborate and participate in important
Professor Les Field, Secretary for Science Policy at the
Australian Academy of Science, stated that it was ‘pleasing to see $26 million
to support an astronomy partnership with the European Southern Observatory,
ensuring Australia’s involvement in major astronomy initiatives around the
Universities and astronomers were also pleased, with ANU
Vice-Chancellor and Nobel
Prize-winning astronomer, Professor Brian Schmidt, reportedly thanking ‘Senator
Arthur Sinodinos for taking the initiative to solve “a long-standing problem
that has been facing astronomical researchers in Australia”’ through this
As mentioned above, the Bill was foreshadowed in the
Budget of 2017–18, which provided $26.1 million over four years from 2017–18
($120.0 million over 11 years) to ‘maintain Australia’s capability in optical
astronomy and its international competitiveness in space and astronomy enabled
The measure is to allow Australia to become a strategic partner with the ESO
for ten years from 1 January 2018.
The Explanatory Memorandum states that, as the Bill
terminates the AAO and its governance body (the AAO Advisory Committee) two
years earlier than previously anticipated, there will be operational savings of
$25.2 million during the financial years 2018—19 and 2019—20, which partly
offsets the $26.1 million expenditure in the new Budget measure.
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.
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights does not
believe that the Bill raises human rights concerns.
Abolition of the AAO
The Bill will abolish the AAO and the AAO Advisory
Committee, which reports to the Secretary of the DIISR and to the Director of
the AAO. Part 1 of Schedule 1 amends the Australian
Astronomical Observatory Act, including its short title, which would be
renamed as the Astronomical Functions Act. However, other parts of the Australian
Astronomical Observatory Act are retained (among which are the astronomical
functions of the Secretary of the DIISR), and the Government says this is to
provide a legislative basis for future government initiatives.
The proposed amendments to the Australian Astronomical Observatory Act change
its primary purpose from being the establishment of the AAO, to its new purpose
of providing the Secretary of DIISR with astronomy-related functions.
Section 3 of the Australian Astronomical Observatory
Act, a section which contains the simplified outline of the Act, is
repealed and replaced by item 3 of Schedule 1 of the Bill. This
states that the Secretary of the Department has various functions relating to
optical astronomy, and that the Commonwealth may charge fees in connection with
‘things done’ in the performance of the Secretary’s functions, which may be
delegated to APS employees in the Department.
Part 2 of Schedule 1 repeals the whole of
the Australian Astronomical Observatory (Transitional Provisions) Act,
which had provided for the integration of the former Anglo-Australian
Observatory and its staff, assets, liabilities, contracts and commitments into
the Commonwealth in 2010. Given the abolition of the AAO by the Bill, this
transitional legislation (as the Explanatory Memorandum states) is no longer
Schedule 2 of this Bill concerns transitional
provisions and applies within and outside Australia,
to cover the transfer of current AAO instruments, liabilities or commitments to
any offshore entities—possibly, for example, the ESO. Part 2 transfers assets
and liabilities from the Commonwealth to designated entities, as determined by
the Minister (likely to be the consortia, as outlined earlier in this Digest).
This is restricted to those assets and liabilities that relate to the AAO
immediately before the transition time of 1 July 2018 (subitem 3(1)).
Item 11 in Part 4 of Schedule 2 makes
the Commonwealth liable to pay reasonable compensation if it acquires property
on other than just terms.
Of note in this Bill are the transitional rules provided
for by item 12 of Schedule 2. These provide for the Minister, by
legislative instrument, to make rules prescribing matters in relation to
repeals made by the Bill. These rules, if made within a 12-month period
starting at the transition time of July 2018, may modify the effect of Schedule
2 within the Bill. In other words, the proposed rules can change the
operation of a part of the Bill (Schedule 2). This circularity means
that, if passed, the item 12 Rules would constitute a Henry VIII clause.
A Henry VIII clause (named after the well-known British monarch of that name)
is defined as any ‘provision in a primary Act which gives the power for
secondary legislation (regulations [or rules]) to amend, repeal or [be]
inconsistent with the primary legislation’.
In general, the Senate Standing Committee for the Scrutiny of Bills considers:
There are significant scrutiny concerns with enabling
delegated legislation to override the operation of legislation which has been
passed by Parliament, as such clauses impact on levels of parliamentary
scrutiny and may subvert the appropriate relationship between the Parliament
and the Executive.
These clauses are, however, limited by subitem 12(3) which
sets out what the rules modifying Schedule 2 may not do, and this
includes directly amending the text of the Act. The Explanatory Memorandum
provides that under subitem 12(2) rules can only be made during a
12-month period starting at the time of transition (1 July 2018).
In addition, the rules would be made by legislative instrument and would be
subject to disallowance.
The Explanatory Memorandum notes the existence of the
Henry VIII clause but claims there is a sound justification for it. The Explanatory
Memorandum considers that modifications to the operation of Schedule 2
(the transitional provisions) may be necessary in case of ‘unforeseen
circumstances arising from the transfer of the AAO.’
(In fact, the AAO is being abolished and its scientific functions, along with
assets, liabilities and commitments are being transferred.) The Explanatory
Memorandum states that such rules ‘may also be necessary to minimise
disruption...and to address any operational issues that arise during the
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
measures: budget paper no. 2: 2017–18, p. 131.
Academy of Science, Australia
in the era of global astronomy: the decadal plan for Australian astronomy
2016–2025, Australian Academy of Science, July 2015.
Astronomical Observatory (AAO), ‘About
the AAO’, AAO website.
‘A brief history’,
Academy of Science, op. cit.
. European Southern Observatory website.
Sinodinos (Minister for Industry Innovation and Science), Securing
the future of Australian optical astronomy, media release, 11
Memorandum, Australian Astronomical Observatory (Transition) Bill 2018, p.
p. 1; Astronomy Australia
reading speech: Australian Astronomical Observatory (Transition) Bill 2018’,
House of Representatives, Debates, 28 March 2018, p. 3070. The NCRIS ‘a national network of world-class research infrastructure projects that
support high-quality research that will drive greater innovation in the
Australian research sector and the economy more broadly’: Department of
Education and Training (DET), ‘National Collaborative Research Infrastructure Strategy (NCRIS)’, DET website.
Coleman, op. cit., p. 3070.
Sinodinos, op. cit.
Standing Committee for the Selection of Bills, Report,
5, 2018, The Senate, Canberra, 10 May 2018.
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2018, The Senate, 9 May 2018, p. 8.
Carr (Shadow Minister for Innovation, Industry, Science and Research)
and D O’Neill (Shadow Assistant Minister for Innovation), Another
year, science and research suffers from a negligent Government, media
release, 10 May 2017.
. N Champion,
reading speech: Australian Astronomical Observatory (Transition) Bill 2018’,
House of Representatives, Debates, (proof), 18 June 2018, p. 110.
& Technology Australia, From
the 2017/18 Federal Budget lockup, media release, 9 May 2017.
Academy of Science, What
the Budget means for science and research, media release, 9 May 2017.
astronomers to access world's best telescopes in Chile’, The Canberra
Times, 11 May 2017, p. 2.
measures: budget paper no. 2: 2017–18, op. cit., p. 131.
Memorandum, op. cit. p. 2.
Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory
Memorandum to the Bill.
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 8 May 2018, p. 96.
Coleman, op. cit.
Memorandum, op. cit., p. 8.
item 2 of Schedule 2.
of Law Institute of Australia, ‘Henry
VIII clauses and the rule of law’, Rule of Law Institute of
. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The
Senate, Canberra, 21 March 2018, p. 27. See also Senate Standing Committee for
the Scrutiny of Bills, Annual report 2017, The Senate,
Canberra, 28 March 2018, p. 43.
12 of Schedule 2 to the Bill could also be read as placing a
12-month time limit on the making of rules that modify the effect of that
Schedule, rather than limiting the making of all rules under that item.
Memorandum, op. cit., p. 14.
Memorandum, op. cit., p. 13.
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