Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Statute Update (Smaller Government) Bill 2017



Download PDFDownload PDF

ISSN 1328-8091

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

BILLS DIGEST NO. 35, 2017-18 12 SEPTEMBER 2017

Statute Update (Smaller Government) Bill 2017 Christina Raymond Law and Bills Digest Section

Contents

Purpose and structure of the Bill .......................................... 4

Background ......................................................................... 4

Smaller government agenda ................................................... 4

Previous attempt to abolish the Corporations and Markets Advisory Committee—2014-15 ................................ 5

Previous attempt to abolish the Oil and Product Stewardship Advisory Groups—2014-15 ................................ 6

Committee consideration .................................................... 7

Previous committee consideration of the proposed abolition of CAMAC—2014-15 ............................................. 7

Previous committee consideration of the proposed abolition of the OSAC and PSAC—2014-15 .......................... 7

Policy position of non-government parties/independents ..... 7

Party positions on the 2014 Bill to abolish CAMAC ............... 8

Opposition ........................................................................... 8

Members of the cross-bench in the House of Representatives ................................................................... 8

Members of the cross-bench in the Senate ........................ 8

Party positions on the 2014-15 proposal to abolish the Oil and Product Stewardship Advisory Groups ..................... 8

Australian Greens ................................................................ 8

Opposition ........................................................................... 9

Members of the cross-bench (other than the Australian Greens) ............................................................... 9

Position of major interest groups ......................................... 9

Positions on the proposed abolition of CAMAC—2014- 15 ........................................................................................... 9

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 2

Positions on the proposed abolition of the OSAC and PSAG—2014-15 .................................................................. 10

Positions on the proposed abolition of the PBRAC and replacement consultation arrangements—2014 ................ 10

Financial implications ........................................................ 11

Unquantified contribution of the cessation of the seven bodies to the total estimated savings ................................. 11

Previous estimated savings associated with the rationalisation of Commonwealth bodies—2014-15 ......... 11

Estimated savings from the abolition of CAMAC— 2014-15............................................................................. 11

Estimated savings from the abolition of the OSAC and PSAG—2014-15 ................................................................ 12

No estimated savings from the abolition of other bodies named in the Bill—2014-15 .................................. 12

Statement of Compatibility with Human Rights .................. 12

Parliamentary Joint Committee on Human Rights ................ 13

Key issues and provisions................................................... 13

Schedule 1—Abolition of the tradespersons' rights committees ............................................................................ 13

Key amendments ................................................................. 13

Role and functions of the tradespersons’ rights committees.......................................................................... 13

Policy justification for abolition ........................................... 14

Schedule 2—Abolition of the Oil Stewardship Advisory Council ................................................................................... 15

Key amendments ................................................................. 15

Membership and functions of the OSAC ............................. 15

Policy justification for abolition ........................................... 15

Recommendations of the 2013 review of the PSO Act— a more active role for the OSAC .......................................... 16

Establishment of the next independent review of the PSO Act ................................................................................ 16

Schedule 3—Abolition of the Product Stewardship Advisory Group ...................................................................... 16

Key amendments ................................................................. 16

Membership and functions of the PSAG ............................. 16

Policy justification for abolition ........................................... 17

Current review of the Product Stewardship Act ................. 17

Schedule 4—Abolition of the Advisory Group of the Australian Sports Anti-Doping Authority ............................... 17

Key amendments ................................................................. 17

Membership and functions of the ASADA Advisory Group ................................................................................... 18

Policy justification for abolition ........................................... 18

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 3

Schedule 5—Abolition of the Plant Breeder's Rights Advisory Committee .............................................................. 18

Key amendments ................................................................. 18

Membership and functions of the PBRAC ........................... 18

Policy justification for abolition ........................................... 19

IP Australia consultation paper—options for non-statutory models to obtain expertise (September 2014) .... 19

Schedule 6—Abolition of the Development Allowance Authority ................................................................................ 19

Key amendments ................................................................. 19

Membership and functions of the DAA and the associated legislative framework ........................................ 19

Policy justification for abolition ........................................... 20

Schedule 7—Abolition of the Corporations and Markets Advisory Committee .............................................................. 20

Key amendments ................................................................. 20

Membership and functions of CAMAC ................................ 20

Policy justification for abolition ........................................... 20

Opposition to the proposed abolition—2014-15 ............... 21

Concluding comments ....................................................... 21

Abolition of the Corporations and Markets Advisory Committee (Schedule 7) ........................................................ 21

Replacement of statutory bodies with administrative arrangements (Schedules 2, 3 and 5) .................................... 22

Scrutiny of replacement stakeholder consultation and engagement arrangements, including costs ....................... 23

Consideration of recent and current legislative reviews of the PSO Act and the PS Act ............................................. 24

Non-controversial measures—repeal of apparently redundant bodies (Schedules 1, 4 and 6) .............................. 24

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 4

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:

• Tradespersons’ rights committees (TRCs) established under the Tradespersons’ Rights Regulation Act 1946 (TRR Act) (Schedule 1)

• Oil Stewardship Advisory Council (OSAC) established under the Product Stewardship (Oil) Act 2000 (PSO Act) (Schedule 2)

• Product Stewardship Advisory Group (PSAG) established under the Product Stewardship Act 2011 (PS Act) (Schedule 3)

• Advisory Group of the Australian Sports Anti-Doping Authority (ASADA Advisory Group) established under the Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) (Schedule 4)

• Plant Breeder’s Rights Advisory Committee (PBRAC) established under the Plant Breeder’s Rights Act 1994 (PBR Act) (Schedule 5)

• Development Allowance Authority (DAA) established under the Development Allowance Authority Act 1992 (DAA Act) (Schedule 6) and

• Corporations and Markets Advisory Committee (CAMAC) established under the Australian Securities and Investments Commission Act 2001 (ASIC Act) (Schedule 7).2

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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 6

 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 Senate16 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.)

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 7

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.

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 8

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

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.)

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 9

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 Directors47

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 10

• the Australian Restructuring Insolvency and Turnaround Association48

• the Governance Institute of Australia49

• the Australian Council of Superannuation Investors50

• Chartered Accountants Australia and New Zealand51

• CPA Australia52

• some Australian corporations law academics53 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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 11

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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 12

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

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).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 13

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 Rights74 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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 14

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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 15

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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 16

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

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).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 17

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.

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 18

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

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 19

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.

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 20

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:

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 21

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.

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 22

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

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

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 23

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.

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).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Statute Update (Smaller Government) Bill 2017 24

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.

© 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.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.