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Public Governance and Resources Legislation Amendment Bill (No. 1) 2015
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Schedule 6 Other amendments

   

Air Services Act 1995

1  Paragraph 50(1)(c)

Repeal the paragraph, substitute:

                     (c)  acquisition by AA of goods or services;

2  Subsection 50(4) (definition of hedging purposes )

Repeal the definition, substitute:

hedging purposes means reducing or eliminating risks of adverse financial » consequences to AA, and includes the following:

                     (a)  reducing or eliminating the risk of adverse variations in:

                              (i)  the costs in relation to money raising by AA; or

                             (ii)  the revenue obtainable by AA; or

                            (iii)  the costs in relation to acquiring goods or services by AA;

                     (b)  maintaining the value of:

                              (i)  investments made by AA; or

                             (ii)  property used as security for money raising, or proposed money raising, by AA.

Auditor-General Act 1997

3  Subsection 36(3)

Repeal the subsection, substitute:

             (3)  A person commits an offence if:

                     (a)  the person receives any of the following:

                              (i)  a proposed report (including a draft) under section 19;

                             (ii)  any other report (including a draft) created for the purposes of preparing a proposed report under section 19;

                            (iii)  an extract from a report referred to in this paragraph; and

                     (b)  the person discloses any information in the report or extract.

Penalty:  Imprisonment for 2 years.

             (4)  Subsection (3) does not apply if the Auditor-General has consented to the disclosure.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (4): see subsection 13.3(3) of the Criminal Code .

4  Application of « amendment »

The « amendment » of the Auditor-General Act 1997 made by this Schedule applies in relation to any disclosure of information, in a report or extract, that occurs after this item commences, whether the report or extract was received before or after this item commences.

Australian Trade Commission Act 1985

5  Section 8

Before “The functions”, insert “(1)”.

6  At the end of subparagraphs 8(a)(i) to (viii)

Add “and”.

7  At the end of section 8

Add:

             (2)  Without limiting subsection (1), the functions of the CEO include developing and administering policies relating to tourism (including domestic tourism).

             (3)  The CEO may perform his or her functions under subsection (2) to the extent only that they are not in excess of the functions that may be conferred on the CEO by virtue of any of the legislative powers of the Parliament, and, in particular, may perform his or her functions under that subsection:

                     (a)  for purposes related to external affairs; and

                     (b)  in the course of, or in relation to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State; and

                     (c)  for purposes related to a Territory; and

                     (d)  by means of a communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and

                     (e)  for purposes related to the collection, compilation, analysis, use and dissemination of statistics; and

                      (f)  for purposes related to a corporation to which paragraph 51(xx) of the Constitution applies; and

                     (g)  for purposes related to lighthouses, lightships, beacons and buoys; and

                     (h)  for purposes related to matters incidental to the execution of the legislative powers of the Parliament or the executive power of the Commonwealth; and

                      (i)  for purposes related to a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970 ; and

                      (j)  for purposes related to the executive power of the Commonwealth; and

                     (k)  for purposes related to the granting of « financial » « assistance » to a State on such terms and conditions as the Parliament thinks fit; and

                      (l)  for purposes related to matters that are peculiarly adapted to the government of a nation and that cannot otherwise be carried on for the benefit of the nation; and

                    (m)  by way of providing a service, if the provision of the service utilises the CEO’s spare capacity and does not impede the CEO’s capacity to perform his or her other functions.

8  Subsection 9(1)

After “functions”, insert “under subsection 8(1)”.

9  Paragraph 9(2)(b)

Repeal the paragraph, substitute:

                     (b)  have regard to the need to provide services as efficiently and economically as possible; and

                     (c)  in relation to his or her functions under subsection 8(1), have regard to:

                              (i)  the desirability of improving and extending the range and accessibility of advice, « assistance » and « financial » support available (whether through the Commission and the CEO or otherwise) to persons involved, or likely to be involved, either directly or indirectly, in trade between Australia and foreign countries; and

                             (ii)  Australia’s obligations under « international » « agreements » .

Future Fund Act 2006

10  Section 5

Insert:

civil penalty provision has the meaning given by the Regulatory Powers (Standard Provisions) Act 2014.

11  Section 5 (definition of Commonwealth authority )

Repeal the definition.

12  Section 5

Insert:

corporate Commonwealth entity has the meaning given by the Public Governance, Performance and Accountability Act 2013 .

disqualifiable position means a position as:

                     (a)  a Board member; or

                     (b)  an accountable authority or a member of an accountable authority of a corporate Commonwealth entity.

13  Section 5 (definition of involved )

Repeal the definition.

14  Section 5

Insert:

relevant court means:

                     (a)  the Federal Court of Australia; or

                     (b)  a Supreme Court of a State or Territory.

15  Before section 56

Insert:

Subdivision A Civil obligations and criminal offences

16  Subsection 56(1) (note)

Repeal the note, substitute:

Note:          This is a civil penalty provision which is enforced under the Regulatory Powers (Standard Provisions) Act 2014 (see Subdivision C of this Division).

Civil penalty:          2,000 penalty units.

17  Sections 57 to 59

Repeal the sections, substitute:

57   Good faith—civil obligation

                   A Board member must exercise his or her powers and discharge his or her duties:

                     (a)  in good faith in the best interests of performing the functions of the Board; and

                     (b)  for a proper purpose.

Note:          This is a civil penalty provision which is enforced under the Regulatory Powers (Standard Provisions) Act 2014 (see Subdivision C of this Division).

Civil penalty:          2,000 penalty units.

58   Use of position—civil obligation

                   A Board member or a member of the staff of the Agency must not improperly use his or her position to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the Board’s ability to perform its functions; or

                     (c)  cause detriment to another person.

Note:          This is a civil penalty provision which is enforced under the Regulatory Powers (Standard Provisions) Act 2014 (see Subdivision C of this Division).

Civil penalty:          2,000 penalty units.

59   Use of information—civil obligation

                   A person who obtains information because he or she is, or has been, a Board member or a member of the staff of the Agency must not improperly use the information to:

                     (a)  gain an advantage for himself or herself or someone else; or

                     (b)  cause detriment to the Board’s ability to perform its functions; or

                     (c)  cause detriment to another person.

Note 1:       This duty continues after the person stops being a Board member or a member of the staff of the Agency.

Note 2:       This is a civil penalty provision which is enforced under the Regulatory Powers (Standard Provisions) Act 2014 (see Subdivision C of this Division).

Civil penalty:          2,000 penalty units.

18  Before section 63

Insert:

Subdivision B Other provisions relating to civil penalty provisions and criminal offences

19  Section 66

Repeal the section, substitute:

66   Finance Minister requiring person to assist

             (1)  The Finance Minister may require a person to give all reasonable « assistance » in connection with an application (the civil penalty application ) under the Regulatory Powers (Standard Provisions) Act 2014 for a civil penalty order (within the meaning of that Act) in relation to a contravention of a civil penalty provision in this Act.

             (2)  A person commits an offence if:

                     (a)  the person is required to give « assistance » under subsection (1); and

                     (b)  the person does not comply with the requirement.

Penalty:  5 penalty units.

             (3)  The Finance Minister may require the person to assist in connection with a civil penalty application in relation to a civil penalty provision if, and only if:

                     (a)  it appears to the Finance Minister that someone other than the person required to assist may have contravened the civil penalty provision; and

                     (b)  the Finance Minister suspects or believes that the person required to assist can give information relevant to the application.

             (4)  The Finance Minister may require the person to assist regardless of whether a civil penalty application has actually been made.

             (5)  The person may not be required to assist if he or she is or has been a lawyer for the person suspected of the contravention.

             (6)  The requirement to assist must be given in writing.

             (7)  A relevant court may order the person to comply with the requirement in a specified way. Only the Finance Minister may apply to the court for an order under this subsection .

20  At the end of Division 7 of Part 4

Add:

Subdivision C Consequences of breach of duty

67A   Consequences of breach of duty—civil penalty provisions

             (1)  The following provisions of this Act are enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act ):

                     (a)  subsection 56(1) (care and diligence);

                     (b)  section 57 (good faith);

                     (c)  section 58 (use of position);

                     (d)  section 59 (use of information).

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, as it applies in relation to the civil penalty provisions mentioned in subsection (1):

                     (a)  the Finance Minister is an authorised applicant; and

                     (b)  the Federal Court of Australia and each Supreme Court of a State or Territory is a relevant court.

             (3)  Despite subsection 82(3) of the Regulatory Powers Act, a relevant court may order a person to pay to the Commonwealth a pecuniary penalty only if:

                     (a)  the court is satisfied that the person has contravened the civil penalty provision; and

                     (b)  the contravention:

                              (i)  materially prejudices the interests of the Board; or

                             (ii)  materially prejudices the ability of the Board to pay its creditors; or

                            (iii)  is serious.

             (4)  Subsection (3) of this section does not limit subsection 82(6) of the Regulatory Powers Act.

             (5)  The following provisions of the Regulatory Powers Act do not apply in relation to sections 56 to 59 of this Act:

                     (a)  paragraph 92(1)(a) and subsection 92(2) to the extent that it relates to that paragraph (which deal with ancillary contraventions of civil penalty provisions);

                     (b)  section 94 (which deals with state of mind);

                     (c)  section 96 (which deals with exceptions etc. to civil penalty provisions—burden of proof).

             (6)  Paragraph (5)(c) of this section does not affect the operation of sections 56 to 59 of this Act as those sections would have operated if section 96 of the Regulatory Powers Act had not been enacted.

             (7)  The Board may intervene in an application under section 82 of the Regulatory Powers Act in relation to this Act. The Board is entitled to be heard on all matters other than whether the application should be granted.

67B   Compensation orders

Compensation for damage suffered

             (1)  A relevant court may order a person to compensate the Board for damage suffered by the Board if:

                     (a)  the person has contravened a civil penalty provision in this Act; and

                     (b)  the damage resulted from the contravention.

The order must specify the amount of the compensation.

Damage includes profits

             (2)  In determining the damage suffered by the Board for the purposes of making a compensation order, include profits made by any person resulting from the contravention.

Recovery of damage

             (3)  A compensation order may be enforced as if it were a judgment of the court.

Who may apply for a compensation order

             (4)  An application for a compensation order may only be made by the following persons:

                     (a)  the Finance Minister;

                     (b)  some other person authorised in writing by the Finance Minister under this paragraph to make the application;

                     (c)  the Board.

67C   Disqualification order for contravention of civil penalty provision by Board members

             (1)  A relevant court may disqualify a Board member from holding a disqualifiable position for a period that the court considers appropriate if:

                     (a)  any of the following apply:

                              (i)  a court orders the Board member to pay a pecuniary penalty under section 82 of the Regulatory Powers (Standard Provisions) Act 2014 for contravening a civil penalty provision in this Act;

                             (ii)  a court orders the Board member to compensate the Board under section 67B of this Act;

                            (iii)  the relevant court is otherwise satisfied that a Board member has contravened a civil penalty provision in this Act; and

                     (b)  the court is satisfied that the disqualification is justified.

             (2)  An application for a disqualification order under subsection (1) may only be made by the following persons:

                     (a)  the Finance Minister;

                     (b)  some other person authorised in writing by the Finance Minister, under this paragraph, to make the application.

An authorisation for the purposes of paragraph (b) may relate to applications in relation to specified contraventions, or to all contraventions, of civil penalty provisions.

             (3)  In determining whether the disqualification is justified, the court may have regard to:

                     (a)  the person’s conduct as a Board member; and

                     (b)  any other matters that the court considers appropriate.

Offence for contravening disqualification order

             (4)  A person commits an offence if:

                     (a)  such a disqualification is in force against the person; and

                     (b)  the person holds a disqualifiable position.

Note:          A person might not commit an offence if the person holds, with leave of the court, a disqualifiable position (see section 67D).

Penalty:  Imprisonment for 1 year.

67D   Exception to disqualification order

             (1)  Subsection 67C(4) does not apply if the person holds a disqualifiable position with the leave of a relevant court.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code ).

             (2)  When granting leave under subsection (1), the court may impose conditions or restrictions that the court considers appropriate.

             (3)  A person commits an offence if:

                     (a)  a condition or restriction is imposed under subsection (2) in relation to a person; and

                     (b)  the person contravenes the condition or restriction.

Penalty:  Imprisonment for 1 year.

             (4)  A person may apply for leave under subsection (1) only if he or she has given the Finance Minister at least 21 days’ notice of the application.

             (5)  On the application of the Finance Minister, the court may revoke leave granted under subsection (1).

67E   Relief from liability for contravention of civil penalty provision etc.

             (1)  A relevant court may relieve a person (either wholly or partly) from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, if:

                     (a)  proceedings referred to in subsection (5) are brought against the person; and

                     (b)  in the proceedings it appears to the court that:

                              (i)  the person has or may have contravened a civil penalty provision, or the person is or may be liable in relation to the negligence, default or breach, but the person has acted honestly; and

                             (ii)  having regard to all the circumstances of the case, the person ought fairly to be excused for the contravention, negligence, default or breach.

             (2)  A person who thinks that proceedings referred to in subsection (5) will or may be commenced against him or her may apply to a relevant court for relief.

             (3)  On an application under subsection (2), the court may grant relief under subsection (1) as if proceedings referred to in subsection (5) had been commenced in the court.

             (4)  For the purposes of subsection (1) as it applies for the purposes of a case tried by a judge with a jury:

                     (a)  a reference in that subsection to the court is a reference to the judge; and

                     (b)  the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.

             (5)  The proceedings referred to in this subsection:

                     (a)  are:

                              (i)  proceedings in relation to a contravention of a civil penalty provision in this Act (including proceedings for a compensation order under section 67B); or

                             (ii)  civil proceedings for negligence, default, breach of trust or breach of duty in a person’s capacity as a Board member or a member of staff of the Agency; and

                     (b)  do not include proceedings for an offence against this Act (except to the extent that the proceedings relate to the question of whether the court should make an order under section 67B).

21  Application of amendments

The amendments of the Future Fund Act 2006 made by this Schedule apply in relation to any conduct that occurs after this item commences.

Health Insurance Act 1973

22  Paragraph 106ZPLA(b)

Omit “Scheme”.

23  After section 106ZPR

Insert:

106ZQ   Annual report

                   The annual report prepared by the Director and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include a report on the operation of this Part during the period.

24  Application of amendments

The amendments of the Health Insurance Act 1973 made by this Schedule apply in relation to the reporting period commencing on 1 July 2014 and later reporting periods.

Industrial Chemicals (Notification and Assessment) Act 1989

25  Section 108

Repeal the section, substitute:

108   Annual report

                   The annual report prepared by the Secretary of the Department and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include a report on the operation of this Act during the period.

26  Application of « amendment »

Section 108 of the Industrial Chemicals (Notification and Assessment) Act 1989 , as inserted by this Schedule, applies in relation to the reporting period commencing on 1 July 2014 and later reporting periods.

« International » Organisations (Privileges and Immunities) Act 1963

27  After section 12B

Insert:

12C   Organisations that are bodies corporate are not Commonwealth entities

                   If the regulations provide that an organisation is a body corporate, then, despite paragraph 10(1)(d) of the Public Governance, Performance and Accountability Act 2013 , the organisation is not a Commonwealth entity for the purposes of that Act.

Reserve Bank Act 1959

28  Subsections 7A(5) and (6)

Repeal the subsections, substitute:

Provisions about general duties of officials

             (5)  Subdivision A of Division 3 of Part 2-2 of that Act (which deals with general duties of officials) applies in relation to a member of the Reserve Bank Board or the Payments System Board who is not referred to in subsection (4) of this section as if the member were an official (within the meaning of that Act) of the Bank.

Note:          Section 29 of that Act (which is in Subdivision A of Division 3 of Part 2-2 of that Act, and deals with the duty to disclose interests) is affected by sections 7B and 7C.

29  After section 7A

Insert:

7B   Disclosure of interests by members of the Reserve Bank Board in relation to certain matters

             (1)  This section applies in relation to a member of the Reserve Bank Board if:

                     (a)  a meeting of the Board is considering either or both of the following matters:

                              (i)  the « monetary » policy of the Bank;

                             (ii)  the role of the Bank in « financial system stability; and

                     (b)  the member has a material personal interest that relates to the matter; and

                     (c)  within the previous 12 months the member has disclosed, in writing, the member’s interest to the Treasurer (whether the disclosure occurs before or after this section commences); and

                     (d)  there has been no substantial change in the nature or composition of the interest since the disclosure.

             (2)  The member may do either or both of the following:

                     (a)  be present during any consideration by the Board of the matter;

                     (b)  vote on the matter.

             (3)  The member is taken to have complied with section 29 of the Public Governance, Performance and Accountability Act 2013 , and any rules made for the purposes of that section.

             (4)  This section applies:

                     (a)  despite subsections 7A(1), (4) and (5) of this Act; and

                     (b)  instead of any rules made for the purposes of subsection 29(2) of the Public Governance, Performance and Accountability Act 2013 .

7C   Other disclosures of material personal interests by members of the Reserve Bank Board and the Payments System Board

             (1)  This section applies in relation to a matter if:

                     (a)  for a member of the Reserve Bank Board—the matter is being considered at a meeting of the Reserve Bank Board and:

                              (i)  the matter is not a matter referred to in paragraph 7B(1)(a); or

                             (ii)  the matter is a matter referred to in paragraph 7B(1)(a), but the condition in paragraph 7B(1)(c) or (d) is not met in relation to the matter; or

                     (b)  for a member of the Payments System Board—the matter is being considered at a meeting of the Payments System Board.

             (2)  Sections 12, 14, 15 and 16D of the Public Governance, Performance and Accountability Rule 2014 apply to each member of the Reserve Bank Board and the Payments System Board in relation to the matter as if:

                     (a)  the relevant Board were the accountable authority of the Bank and the member were a member of the accountable authority of the Bank; and

                     (b)  instead of referring to a material personal interest that relates to the affairs of the Bank, section 29 of the Public Governance, Performance and Accountability Act 2013 , and sections 14 and 15 of that Rule, referred to a material personal interest that relates to the affairs of:

                              (i)  for a member of the Reserve Bank Board—the Reserve Bank Board; or

                             (ii)  for a member of the Payments System Board—the Payments System Board.

             (3)  This section applies:

                     (a)  despite subsections 7A(1), (4) and (5) of this Act; and

                     (b)  instead of any rules made for the purposes of subsection 29(2) of the Public Governance, Performance and Accountability Act 2013 (other than as referred to in subsection (2) of this section).

             (4)  This section does not otherwise affect subsection 7A(1) or (4) of this Act, or any rules made for the purposes of subsection 29(2) of the Public Governance, Performance and Accountability Act 2013 , to the extent that a member of the Reserve Bank Board or the Payments System Board referred to in subsection 7A(4) of this Act has a material personal interest that relates to the affairs of the Bank in a matter that is not being considered at a meeting of:

                     (a)  for a member of the Reserve Bank Board—the Reserve Bank Board; or

                     (b)  for a member of the Payments System Board—the Payments System Board.

Note:          The member is required to comply with the rules for officials of an entity relating to the disclosure of such interests.

Terrorism Insurance Act 2003

30  Section 31

Omit “Minister”, substitute “Corporation”.