Key points
- The Commonwealth Entities Legislation Amendment Bill 2026 (the Bill) proposes to amend appointment, suspension and termination arrangements for the statutory officer holder (SOH) positions that lead four Commonwealth entities: Australian Centre for International Agricultural Research (ACIAR); Australian Trade and Investment Commission (Austrade); Australian Safeguards and Non-Proliferation Office (ASNO); Office of Parliamentary Counsel (OPC).
- Most of the Bill’s proposed governance changes will more closely align arrangements with the majority of SOH positions created in other legislation. Such measures include: reducing the maximum term of appointment from 7 years to 5 years; and inserting grounds for suspension or termination that are already found in other legislation.
- On the other hand, provisions to enable ministers to set performance standards for SOH positions would appear to be novel, and performance standards would not be legislative instruments.
- In that context, it is not clear why the circumstances of these particular SOH positions are being changed, or why the changes are necessary at this particular time.
- In recent months, three of the four entities affected by the Bill have faced adverse audit findings or other public criticism. However, it is not clear that these issues have led to the current Bill nor whether governance changes proposed in the Bill would necessarily have prevented the reported shortcomings.
- At the time of writing, the Bill has not been referred to or reported on by any parliamentary committees.
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Introductory Info
Date of introduction: 11 February 2026
House introduced in: House of Representatives
Portfolio: Attorney-General
Commencement:Schedule 1 commences on the day after Royal Assent. Schedule 2, Parts 1 to 3 commence 14 days after Royal Assent. Schedule 2, Parts 4 to 6 commence immediately after Parts 1 to 3.
Purpose of the Bill
The purpose of the Commonwealth Entities Legislation Amendment Bill 2026 (the Bill) is to amend appointment, suspension and termination arrangements for statutory office holders in 4 Commonwealth Entities: the Australian Centre for International Agricultural Research (ACIAR); the Australian Trade and Investment Commission (Austrade); the Australian Safeguards and Non-Proliferation Office (ASNO); and the Office of Parliamentary Counsel (OPC).
Structure of the Bill
Schedule 1 of the Bill would amend the Australian Centre for International Agricultural Research Act 1982 (ACIAR Act), the Australian Trade and Investment Commission Act 1985 (Austrade Act) and the Nuclear Non-Proliferation (Safeguards) Act 1987 (Safeguards Act).
Schedule 2 of the Bill would amend the Parliamentary Counsel Act 1970 (OPC Act).
Background
Statutory office holders
A statutory office holder (SOH) is a person appointed to a specific position established by legislation.
The relevant legislation sets out distinct functions to be performed and specific powers to be exercised by the SOH with a degree of independence from the direct control of the Government. Typically, functions and powers may include investigation, regulation, or other specialist roles, particularly of a technical nature. Provisions in legislation will also include arrangements for appointment (including tenure) and termination.
This Bill would amend four Acts that establish SOH positions that perform CEO-type roles. This is in contrast to other types of SOH positions that may include, for example, appointees to statutory committees.
Ministerial directions
Commonwealth legislation commonly includes provision for a Minister to give general directions about the performance of functions. Such provisions are often qualified to clarify that directions must be general in nature and must not relate to individual people or cases.
Tenure of office and reappointments
Appointment to an SOH position is by a minister or the Governor-General. For most SOH positions, legislation generally permits an appointment period of up to 5 years, usually with the possibility of reappointment. In some cases, the second appointment must be less than 5 years. Some legislation permits longer appointment periods, such as:
Some legislation provides for a maximum appointment period of 7 years with the possibility of re-appointment but, in practice, appointments are routinely made for 5 years, such as:
Suspension of appointment
The Acts Interpretation Act 1901 provides an authority to suspend or remove a SOH. Subsection 33(4) provides that ‘where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall be construed as including … a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended …’. Subsection 33(4) further provides that:
where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power to make an appointment to act in an office or place or such power of removal shall only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority.
Section 28 of the Ombudsman Act 1976 provides an example of a circumstance in which the appointing authority (in this case, the Governor-General) must follow a process that includes the concurrence of another authority (the Parliament).
Termination, and grounds for termination
The legislation under which a SOH is appointed or holds office will usually contain provisions relating to the circumstances in which a SOH may be removed from office. Typically, grounds for termination include misbehaviour, physical/mental incapacity, bankruptcy, outside employment and failure to disclose interests.
Legislation that includes ‘unsatisfactory performance’ or similar as a ground for termination includes Australian Crime Commission Act 2002 subsection 44(3), Australian Research Council Act 2001 section 40A, Australian Curriculum, Assessment and Reporting Authority Act 2008 section 32, Creative Australia Act 2023 section 72, Housing Australia Act 2018 section 25, Safe Work Australia Act 2008 section 57 and Australian Trade and Investment Commission Act 1985 section 59.
In July 2017 the Government-commissioned Craik review recommended changes to governance arrangements at the Great Barrier Reef Marine Park Authority (GBRMPA), including the creation of a separate CEO position and changes to the role of the Board. Implemented as section 39ZT of the Great Barrier Reef Marine Park Act 1975, grounds for termination of the CEO’s appointment included provisions found in relation to CEOs in many Acts (misbehaviour; unable to perform the duties of office because of physical or mental incapacity; bankruptcy) but also that ‘the Minister is satisfied that the CEO’s performance has been unsatisfactory for a significant period’. In addition, section 16 was amended to include a similar provision in relation to GBRMPA’s part-time Board members.
The 2017 Craik review’s governance recommendations followed significant developments at the Great Barrier Reef (GBR) and GBRMPA. From 2014 to 2017, cyclones and marine heatwaves caused extensive coral bleaching of the GBR. In August 2015 the Auditor-General criticised GBRMPA’s regulation of permits and approvals within the GBR Marine Park.
Recent developments involving entities affected by the Bill
In recent months there have been adverse audit findings or other criticisms of three of the four entities affected by the Bill, as outlined below. However, it is not clear that these issues have led to the current Bill nor whether governance changes proposed in the Bill would necessarily have prevented the reported shortcomings.
ACIAR
The Australian Government Organisations Register (AGOR) describes ACIAR as the Australian Government’s specialist agricultural research-for-development agency within the Australian aid program. In Audits of the Financial Statements of Australian Government Entities for the Period Ended 30 June 2025, the Auditor-General noted in relation to ACIAR:
Section 83 of the Australian Constitution states that money cannot be withdrawn from the Consolidated Revenue Fund (CRF) except under an appropriation made by law. During 2024–25 potential breaches of section 83 of the Constitution were identified. These potential breaches related to departmental and administered employee entitlements being misclassified and the incorrect funding being used for associated payments. [p. 139] [emphasis added]
ACIAR was not the only agency identified in the report as breaching section 83.
OPC
AGOR describes OPC as the Commonwealth's principal provider of professional legislative drafting and publishing services. In Procurement and Contract Management of the New Federal Register of Legislation Project the Auditor-General reported in December 2025 on OPC’s development of a new Federal Register of Legislation, the authorised whole-of-government website for Commonwealth legislation and related documents. The report found:
The new Federal Register of Legislation was launched on 1 January 2024, four years later than planned and at an estimated cost more than double the original budget. … OPC did not fully comply with the CPRs [Commonwealth Procurement Rules] and did not demonstrate the achievement of value for money. … AusTender reporting requirements specified in the CPRs were not met for nine of the 13 procurements. [T]here was no written contract for three of the procurements (23 per cent) and the contract for a further nine procurements (69 per cent) did not include performance requirements. [pp. 8, 9]
The report also observed that ‘OPC’s approach to managing probity risks and procurement record keeping was not to an appropriate standard’:
A probity plan was documented, as a schedule to the procurement evaluation plan, for one of the procurements. There was no probity plan documented for the remaining 12 contracts examined. … The ANAO identified that there was at least one instance where a conflict of interest existed but had not been declared. Specifically, a member of the evaluation panel was related to, and engaged socially with, one of the candidates. The decision-maker was not advised of this probity issue and there were no records documenting how this conflict had been managed. This procurement process resulted in the award of two contracts for back end developers valued at $253,440 and $284,449. [p. 31] [emphasis added]
Austrade
AGOR notes that Austrade assists Australian businesses, education institutions, tourism operators, governments and citizens to develop international markets, promote international education, and strengthen Australia's tourism industry.
An activity administered by Austrade is the Export Market Development Grant (EMDG) program. Previously a reimbursement scheme, since 2020 the EMDG has been providing grants to Australian Small and Medium Enterprises (SMEs) and their representative bodies to market and promote their goods and services globally and undertake export training. In September 2025, ABC News reported:
Austrade is facing criticism of its grants scheme for exporters, which last year changed to a "first-come, first-served" application process.
Tens of millions of dollars in funding to help Australian businesses access overseas markets was exhausted within hours under the new tiered system, industry consultants tell ABC News.
Key issues and provisions
The SOH positions affected by the Bill are: ACIAR CEO, ASNO Director-General (ASNO DG), Austrade CEO, and OPC’s First Parliamentary Counsel (1PC) and Second Parliamentary Counsel (2PC).
Tenure of office
The ASNO DG and Austrade CEO are currently appointed for periods not exceeding 5 years.
For the ACIAR CEO and OPC’s 1PC and 2PC, the Bill would reduce the maximum term of appointment from 7 years to 5 years (item 17 of Schedule 1 and item 3 of Schedule 2). This approach would align these 3 SOH positions with the majority of SOH positions. The Explanatory Memorandum notes that the 5-year maximum terms would apply to appointments and reappointments made on or after the provisions commence (pp. 15, 29).
Suspension
As discussed above, subsection 33(4) of the Acts Interpretation Act 1901 provides authority for a Minister to suspend or remove a SOH. The Bill would add additional requirements in relation to several SOH positions.
The Bill would enable the Minister to suspend the appointments of the ACIAR CEO, Austrade CEO and ASNO DG for 3 months ‘if the Minister believes that the suspension would be in the interests of’ ACIAR, Austrade or ASNO, respectively (items 4, 22 and 33 of Schedule 1). This period may be extended by up to 3 months, or by up to 12 months if an inquiry is being undertaken into the conduct of the relevant SOH, which may include whether the SOH has breached the APS Code of Conduct, or a corruption investigation (within the meaning of the National Anti-Corruption Commission Act 2022) involving the conduct of the SOH. If the Minister suspends the appointment of the ASNO DG or extends a period of suspension applying to the ASNO DG, the Minister must publish notice of the suspension or extension.
The provisions would apply regardless of whether the SOH was appointed before, on or after commencement of the amendments (items 5, 23 and 35 of Schedule 1).
The Explanatory Memorandum states that the office holders would be paid remuneration and allowances while suspended (pp. 8, 17, 23) and that the new powers for suspension of duties ‘are consistent with suspension clauses in other Commonwealth statutes for statutory office holders’ (p. 4).
Termination
Additional grounds for termination
The Bill would add additional grounds for termination for the SOH positions although, as explained below, it would not add the same provisions to every Act. However, the Explanatory Memorandum notes that for all affected SOH positions ‘procedural fairness requirements would apply in relation to any proposed termination decision’ (pp. 10, 19, 25, 32).
The Bill would expand and clarify the grounds on which the appointments of OPC statutory office holders may be terminated. As noted by the Explanatory Memorandum:
Termination would remain mandatory in respect of bankruptcy-related grounds. The new list of discretionary grounds for termination would comprise conviction of an indictable offence, physical or mental incapacity, serious misconduct, unsatisfactory performance, absence from duty in certain circumstances, engaging in paid work outside official duties without the consent of the Minister and failing to disclose interests under the Public Governance, Performance and Accountability Act 2013 (PGPA Act). [p. 2] [emphasis added]
These provisions would bring the OPC positions into alignment with usual grounds for termination of other SOH positions, although some Acts refer to ‘paid employment’ and some refer to ‘paid work’.
Of the Acts affected by the Bill, only the Australian Trade and Investment Commission Act 1985 currently includes reference to the Minister terminating the appointment of the Austrade CEO on the grounds of unsatisfactory performance, with current subsection 59(3) requiring the Minister to terminate the CEO’s appointment if their performance ‘has been unsatisfactory for a significant period of time’. The Bill would amend this provision to provide the Minister with discretion as to whether to terminate the CEO’s appointment for unsatisfactory performance (item 9 of Schedule 1). The Bill would add ‘unsatisfactory performance’ as a ground for termination for the ACIAR CEO, and OPC’s 1PC and 2PC (item 25 of Schedule 1 and item 12 of Schedule 2).
AGOR notes that ASNO performs domestic regulatory functions to ensure that Australia is in compliance with international treaty commitments in relation to weapons of mass destruction and non-proliferation. The Explanatory Memorandum observes that:
There are a range of international obligations and guidance which require a high degree of regulatory independence for the Australian Safeguards Office and the Director of Safeguards. Consistent with these requirements, the Bill does not propose a ground for terminating the appointment of the Director of Safeguards on the basis of unsatisfactory performance. [p. 25] [emphasis added]
Termination of the ASNO Director is dealt with in existing section 48 of the Safeguards Act. Item 36 of Schedule 1 to the Bill would repeal and replace subsection 48(1) to retain misbehaviour, or physical or mental incapacity as grounds for termination and enable the Governor-General to terminate the appointment of the Director of Safeguards (ie the ASNO DG) for ‘serious misconduct’. The Explanatory Memorandum explains that, under new subsection 48(1A) at item 39 of Schedule 1, conduct or behaviour is serious misconduct if:
- the conduct or behaviour constitutes a breach of the APS Code of Conduct, and the Minister is satisfied that the breach is serious enough to justify termination of the Director’s appointment, or
- an investigation report (within the meaning of the [National Anti-Corruption Commission Act 2022]) includes a finding or opinion that the Director of Safeguards has engaged, is engaging or will engage in corrupt conduct (within the meaning of that Act) or conduct that could constitute or involve corrupt conduct. [p. 26]
Performance standards
The Bill would enable relevant ministers to set performance standards for the ACIAR CEO, the Austrade CEO, and OPC’s 1PC and 2PC, although the relevant ministers would not be obliged to determine such performance standards (items 2 and 20 of Schedule 1 and item 6 of Schedule 2). Provisions to enable ministers to set performance standards for SOH positions would appear to be novel.
The Explanatory Memorandum outlines how the performance standard could form the basis of a termination process for the Austrade CEO (a similar process is outlined for the ACIAR CEO (p. 19) and the OPC SOH positions (p. 36)):
Before the Minister could exercise the discretion to terminate the appointment of the CEO of Austrade [on the basis of unsatisfactory performance], the Minister must have formed the view that the CEO’s performance has been unsatisfactory, having regard to any performance standard that exists. Unsatisfactory performance is not required to endure for any particular period of time. A performance standard would support the Minister in reaching an opinion about the performance of the CEO by providing an objective measure against which to assess that performance. [p. 11] [emphasis added]
A performance standard would not be a legislative instrument or a disallowable instrument. The Explanatory Memorandum contends that:
Treatment of a performance standard as a legislative instrument, which would entail meeting publication, registration and tabling requirements under the Legislation Act, could hinder appointment arrangements and performance, as well as undermine the discretion of the Minister to form an opinion about termination. [p. 16, with almost identical wording at pp 7 and 30]
Ministerial directions
Item 1 of Schedule 2 to the Bill would introduce a new power for the Minister to give written directions to OPC about the performance of its functions. As discussed above, such directions would be of a general nature and would not extend to a particular case or matter.