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Steel Transformation Plan Bill 2011

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2010-2011

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

STEEL TRANSFORMATION PLAN BILL 2011

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator the Hon Kim Carr, Minister for Innovation, Industry, Science and Research)

 

 

 



STEEL TRANSFORMATION PLAN BILL 2011

 

OUTLINE

The Steel Transformation Plan Bill 2011 (the Bill) establishes the legislative framework for the Steel Transformation Plan (the Plan). The Plan is a $300 million entitlement program over four years from the 2012-13 financial year. The Bill also enables the Minister of Innovation, Industry, Science and Research (the Minister) to approve an advance of future entitlements under the Plan, as competitiveness assistance advances in the 2011-2012 financial year.

 

The Bill will support the Australian steel manufacturing industry to ensure its long-term economic and environmental sustainability in a low carbon economy. The object of the Bill is to encourage investment, innovation and competitiveness in the Australian steel manufacturing industry as it transforms into an efficient and economically sustainable industry in a low carbon economy. The Bill will achieve this in a way that improves environmental outcomes and promotes the development of workforce skills for the Australian steel manufacturing industry. The Bill will provide assistance to participants for investment in eligible plant and equipment, research and development and competitiveness.

 

In addition to the assistance provided by the Bill, the Government will commission the Productivity Commission (PC) to review the impact of carbon pricing on the competitiveness of the steel industry, if requested by a company eligible to participate in the Plan, while the Plan is operating.  Separately, the Government will ask the PC to review the pass through of upstream emissions costs to the Australian steel manufacturing industry if participants in the steel industry that are eligible to receive assistance under the Jobs and Competitiveness Program notify the Government that there are reasonable grounds to believe that coal suppliers are, or intend to, pass through carbon costs.

 

The Bill provides assistance by way of competitiveness assistance advances in 2011-2012 and entitlement payments under the Plan. Assistance is limited to $300 million and is guaranteed through a standing appropriation. The standing appropriation provides the steel manufacturing industry with certainty in respect of the amount of assistance it will be entitled to receive through the Plan.

 

The Bill enables the Minister to approve up to $164 million in competitiveness assistance advances in 2011-2012. This is limited to circumstances where the advances are necessary to assist eligible Australian steel manufacturers to undertake activities that will significantly enhance the competitiveness and economic sustainability of the steel manufacturing industry in Australia. The amount of an advance will be deducted from future entitlement payments under the Plan.

 

The Bill establishes the framework for the Plan with administrative details to be included in a legislative instrument. This reduces the administrative complexity of the legislation and provides the flexibility required to deal with changing circumstances in the Australian steel manufacturing industry.

 

The Bill sets out the matters to be contained in the legislative instrument, including: the registration of eligible corporations; the making of payments under the Plan (including conditions that are to be complied with); the recovery of amounts by the Commonwealth; the payment of interest on overpaid amounts; the inalienability of Plan payments; the review of decisions; and other matters required or permitted to be included in the Plan.

 

The Bill ensures that debts under the Plan may be recovered by the Commonwealth, including by offsetting against a participant’s future payments. Monies recovered may then be redistributed within future plan years. Any unspent funds at the end of the Plan will be returned to consolidated revenue.

 

The Bill includes a strong monitoring regime. These provisions are necessary, given the Plan is a self-assessment entitlement program, to facilitate effective monitoring and to ensure the integrity of the Plan. This is balanced with the inclusion of provisions that protect the rights of occupiers of premises.

 

FINANCIAL IMPACT STATEMENT

 

The total administered expenses for the Steel Transformation Plan established by the Steel Transformation Plan Bill 2011 is $300 million over the period 2011-2012 to 2016-2017. 

 

 



STEEL TRANSFORMATION PLAN BILL 2011

 

NOTES ON CLAUSES

 

1.       This Explanatory Memorandum uses the following abbreviation:

 

2.       'Plan' means the Steel Transformation Plan

 

 

Part 1—Preliminary

 

Clause 1 - Short title

 

3.       This clause provides for the Bill, once enacted, to be cited as the

Steel Transformation Plan Act 2011 .

 

Clause 2 - Commencement

 

4.       Subclause (1) provides that the commencement date for sections 1 and 2, and anything in this Act not elsewhere covered by the table, is the day on which this Act receives Royal Assent. The date of commencement for sections 3 to 30 is the later of the day the Steel Transformation Plan Act 2011 receives Royal Assent and the day after the Clean Energy Act 2011 and all of the Acts mentioned in section 2 of that Act, have received Royal Assent. 

 

5.       Subclause (2) allows for column 3 of the table to contain additional information that is not part of this Act.

 

Clause 3 - Object

 

6.       Subclause (1) sets out the object of the Bill, which is to provide assistance for participants for investment, innovation and competitiveness in the Australian steel manufacturing industry to transform it into an efficient and economically sustainable industry in a low carbon environment.

 

7.       Subclause (2) states that the object of the Bill is to be achieved in a way that improves environmental outcomes and promotes the development of workforce skills.

 

Clause 4 - Definitions

 

8.       This clause defines the terms used throughout the Bill.



Part 2 — Competitiveness assistance advances

 

 

Clause 5 - Applying for competitiveness assistance advances

 

9.       This clause sets out the process for applying for a competitiveness assistance advance.

 

10.   Subclause (1) provides that an eligible corporation may apply to the Minister for a payment of financial assistance, a competitiveness assistance advance, by lodging a written application in accordance with subclause (2).

 

Note: Under clause 8 competitiveness assistance advances must not be paid after 30 June 2012 .

 

11.   Subclause (2) makes it clear that an application must, be in the form approved by the Secretary, contain the information and documents required by the form and be lodged as specified by the form.

 

12.   Subclause (3) makes it clear that for the purpose of assessing an application the Minister may request any additional information necessary for the Minister to be satisfied in relation to the matters set out in paragraph 6(1)(b).

 

13.   Subclause (4) provides that the Minister does not have to complete his considerations of an application until all the requested additional information has been provided.

 

Clause 6 - Approving competitiveness assistance advances

 

14.   Subclause (1) provides that the Minister may approve the payment of a competitiveness assistance advance to an eligible corporation if the application is in accordance with subclause 5(2), paragraph (a), and the Minister is satisfied that at the time of application the corporation was an eligible corporation, subparagraph (b)(i), and the advance is necessary to assist the corporation in a way that will significantly enhance the competitiveness and economic sustainability of the Australian steel manufacturing industry in a low carbon economy, subparagraph (b)(ii).

 

15.   Subclause (2) makes it clear that if the Minister approves the payment of a competitiveness assistance advance, the advance is payable by the Commonwealth to the corporation determined under paragraph (3)(a).

 

16.   Subclause (3) makes it clear that if the Minister approves the payment of a competitiveness assistance advance the Minister must determine the amount of the advance, the time or times at which it is to be paid, and any conditions the advance is subject to, paragraph (a). A competitiveness assistance advance cannot be used to pay for employee entitlements or to support routine business operations. The Minister must also, as soon as practicable after approving an advance, publish on the Department’s website the name of the corporation and the amount of the advance, paragraph (b).

 

17.   Subclause (4) provides that without limiting the conditions that may be applied to an advance under subparagraph (3)(a)(iii) the conditions that may be included under that subparagraph include conditions about the recovery by the Commonwealth of all or part of the amount of an advance paid and a requirement to allow authorised officers access to specified premises for the purpose of Division 1 in Part 4.

 

18.   Subclause (5) is included to assist readers understand that an approval under subclause (1) and a determination under subclause (3) are not legislative instruments for the purpose of the Legislative Instruments Act 2003 .

 

Clause 7 - Amount of assistance available

 

19.   Subclause (1) provides that the total amount of competitiveness assistance advances must not exceed $164 million.

 

20.   Subclause (2) limits the total amount of competitiveness assistance advance paid to a particular corporation to $100 million.

 

21.   Subclause (3) makes it clear that amounts recovered by the Commonwealth, including by way of offset, are to be treated as if they had never been paid.

 

Note: the amount of a competitiveness assistance advance paid under this Part will reduce the amount of assistance available under Part 3, subclause 13(2).

 

Clause 8 - Payments not to be made after 30 June 2012

 

22.   This clause makes it clear that competitiveness assistance advances must not be paid after 30 June 2012.

 

23.   Part 2 does not provide for a decision by the Minister to approve or not approve an application for a competitiveness assistance advance to be subject to review by the Administrative Appeals Tribunal. A competitiveness assistance advance is an advance of future entitlements under the Steel Transformation Plan, as set out in Part 3. In considering an application for an advance the Minister must take into account whether the payment of an advance of future entitlements is necessary to assist the corporation in a way that significantly enhances the competitiveness and economic sustainability of the Australian steel manufacturing industry in a low carbon environment. This means that the matters the Minister must take into account in considering an application are clearly focused on the benefit to the steel manufacturing industry, not the corporation applying for the advance. As the Minister’s judgement must be in respect of the consequence of the decision for the steel manufacturing industry as a whole rather than the consequences for the applicant it is appropriate that a decision of the Minister not be subject to external tribunal review. This is consistent with other legislated industry assistance measures where the Minister is required to make a decision on the basis that to do so is in the interest of the industry as a whole, including, the Automotive Transformation Scheme Regulations 2010 and the Textile, Clothing and Footwear Strategic Investment Program Act 1999 .



Part 3 — The Steel Transformation Plan

 

 

Clause 9 - Making the Steel Transformation Plan

 

24.   Subclause (1) makes it clear that to further the object of the Bill, the Minister must, by legislative instrument, make a plan (the Steel Transformation Plan) which provides for the payment of amounts (STP payments) to eligible corporations (STP participants) that are registered under the Steel Transformation Plan.

 

25.    Subclause (2) provides that the Steel Transformation Plan is to be a self-assessment plan.

 

Clause 10 - Matters that may be included in the Steel Transformation Plan

 

26.   Subclause (1) sets out the matters the Steel Transformation Plan may make provision for, including, the registration of eligible corporations as STP participants, the making of STP payments, the recovery by the Commonwealth, payment of interest on overpaid amounts of STP payments, the inalienability of STP payments, the review of decisions made under the Plan and other matters that are required, permitted, necessary or convenient to be included in the Plan.

 

27.   Subclause (2) provides that without limiting subparagraph (1)(a)(ii) the conditions referred to in that subparagraph may include a condition requiring an STP participant to allow authorised officers access to specified premises for the purpose of Division 1 of Part 4.

 

28.   Subclause (3) makes it clear that the Steel Transformation Plan may confer the power to make an administrative decision to the Secretary.

 

29.   Subclause (4) provides that where the Steel Transformation Plan confers the power to make an administrative decision to the Secretary, the Secretary may delegate that power to an SES officer in the Department.

 

Clause 11 - Variation of Steel Transformation Plan

 

30.   This clause makes it clear that the Steel Transformation Plan may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901 .

 

Clause 12 - Circumstances in which STP payments payable

 

31.   Subclause (1) provides that STP payments must only be made to an STP participant in respect of eligible activities conducted by the participant in a plan year.

 

32.   Subclause (2) sets out which financial years are plan years.

 

Clause 13 - Amount of assistance available

 

33.   Subclause (1) provides that, subject to subclause (2), the total value of STP payments must not exceed $300 million.

 

34.   Subclause (2) makes it clear that the $300 million mentioned in subclause (1) is to be reduced by the total amount of competitiveness assistance advances paid under Part (2). This will reduce an STP participant’s individual entitlement under the Plan by the value of any competitiveness assistance advance it might have received. If an STP participant has not received a competitiveness assistance advance under Part 2 its entitlement under the STP will not be reduced.

 

35.   Subclause (3) provides that the total amount of STP payments paid in relation to a plan year must not exceed $75 million.

 

36.   However, if the total amount of STP payments paid in respect of a particular plan year is less than $75 million, the balance may be paid in relation to any later plan year, subclause (4).

 

37.   Subclause (5) makes it clear that for the purpose of the funding limits set out in subclauses (1) to (4) amounts recovered by the Commonwealth, including by way of offset, are to be treated as if they had never been paid.

 

Clause 14 - Payments not to be make after 31 December 2016.

 

38.   This clause provides STP payments must not be paid after 31 December 2016.



Part 4 — Monitoring

 

 

Division 1 — Access to premises

 

39.   Division 1 provides comprehensive access to premises powers to authorised officers, which are necessary, as the Plan is a self-assessment scheme for which six monthly payments are provided on trust, subject to later compliance and verification. These powers aim to ensure the integrity of the Plan by deterring participants from over-claiming assistance. Monitoring under this division must be permitted monitoring, that is limited to determining whether or not a corporation has complied or is complying with the requirements of the Bill and the Plan. It also includes determining if information or documents provided by a corporation for the purpose of monitoring is correct. Division 1 only applies if it is a condition of being paid a competitiveness advance or registration under the Plan that the applicant agree to allow authorised officers access to the applicant’s premises.

 

Clause 15 - Allowing access to premises

 

40.   Paragraph (1)(a) provides that the condition specified in subclause (2) applies to a payment of a competitiveness assistance advance, only if it is a condition of that advance that the corporation allow authorised officers access to specified premises. Paragraph (1)(b) makes it clear that the condition specified in subclause (2) applies to the registration of a corporation as an STP participant only if the registration is subject to a condition that the corporation allow authorised officers access to specified premises for the purpose of this division.

 

41.   Subclause (2) provides that it is a condition that the corporation provide authorised officers with: access to: the premises at a reasonable time on a business day and access to inspect and search the premises and anything on the premises for the purpose of permitted monitoring, paragraphs (2)(a) and (b). Authorised officers must also be allowed to operate electronic equipment at the premises to determine if there are electronic documents that are relevant to the permitted monitoring, paragraph (2)(c). It is a further condition that the corporation allow authorised officers to make copies of any documents in hard copy form found on the premises that are pertinent to the permitted monitoring, paragraph (2)(d) and provide the officers with all reasonable facilities and assistance for the effective exercise of their powers, paragraph (2)(e).

 

42.   Subclause (3) provides a definition of permitted monitoring for the purpose of the Bill and the Steel Transformation Plan.

 

Clause 16 - Operation of electronic equipment by authorised officers

 

43.   Clause 16 applies if an authorised officer has access to premises for the purpose of permitted monitoring and finds that relevant electronic documents are accessible by operating electronic equipment at the premises, subclause (1).

 

44.   Subclauses (2) and (3) provide that an authorised officer may operate the electronic equipment for the purpose of obtaining hard copy or electronic copies of documents.

 

45.   Subclause (4) provides that an authorised officer may only operate the equipment if he/she has a reasonable belief that the operation of the equipment can occur without damage to the equipment.

 

Clause 17 - Compensation for damage to electronic equipment

 

46.   Subclause (1) provides that where electronic equipment, recorded data, or programs are damaged in the operations mentioned in clause 16, and the damage occurs because of insufficient care in the operation of the equipment, compensation is payable to the owner.

 

47.   Subclause (2) requires the Commonwealth to pay the owner of the equipment or the user of data or programs reasonable compensation for the damage, as the owner and Commonwealth agree.

 

48.   Subclause (3) provides that if the owner and Commonwealth are unable to agree, then the owner may commence proceedings in the Federal Court of Australia or another competent jurisdiction.

 

49.   Subclause (4) provides that in determining the amount of compensation payable regard is to be has as to whether the occupier (or his or her employees or agents) had provided any warning or guidance as to the operation of the equipment. This clause aims to minimise compensation where an occupier fails to mitigate damage by providing a warning or guidance.

 

Clause 18 - Appointment of authorised officers

 

50.   Subclause (1) provides that the Secretary may, in writing, appoint an APS employee in the Department as an authorised officer for the purpose of permitted monitoring.

 

51.   Subclause (2) makes it clear that the Secretary must not appoint an APS employee as an authorised officer unless he or she is satisfied that the employee has the skills and training necessary to properly exercise the power of an authorised officer. The Secretary may take into account expertise including, but not limited to, specialised training in the operation of electronic equipment, or skills and/or qualifications in auditing accounts as prescribed by the Australian Auditing Standards. As the Secretary is required to be satisfied that the APS employee has the skills and training necessary to undertake the permitted monitoring the appointment of an authorised officer is not limited to senior executive service APS officers. In addition, the Secretary cannot delegate the power to appoint an authorised officer (subclause 27(1)).

 

52.   An authorised officer is appointed for a period, not exceeding three years, specified in the instrument of appointment, subclause (3). The authorised officer must, in exercising his or her powers comply with any written direction of the Secretary, subclause (4). For the benefit of readers, where a direction is given in writing, that direction is not a legislative instrument for the purpose of the Legislative Instruments Act 2003 , subclause (5).

 

Clause 19 - Identity cards

 

53.   The Secretary must issue an authorised officer an identity card that is in the approved form and contains a recent photograph of the authorised officer, subclauses (1) and (2). This is also a requirement in the ACIS Administration Act 1999 , the National Measurements Act 1960 , the Textile, Clothing and Footwear Investment and Innovation Programs Act 1999 and the Tradex Scheme Act 1999 .

 

54.   A person who has been issued an identity card commits an offence (one penalty unit) if that person ceases to be an authorised officer and does not return the identity card to the Secretary within 14 days, subclause (3).

 

55.   Subclause (4) makes it clear that an offence under subclause (3) is an offence of strict liability. The inclusion of this strict liability provision allows the Commonwealth to take appropriate action if a person who was an authorised officer misrepresents him or herself as an authorised officer to eligible corporations after their term has expired. It is intended to act as the strongest possible deterrent to prevent former authorised officers unlawfully presenting themselves as authorised officers and examining commercially-in-confidence material that may be subsequently misused or disclosed to the detriment of the corporation. Subclause (5) makes it clear that subclause (3) does not apply if the identity card was lost or destroyed.

 

Note: Section 6.1 of the Criminal Code sets out the meaning of strict liability and a defendant bears an evidential burden in relation to this matter under subsection 13.3(3) of the Criminal Code.

 

56.   Subclauses (6) and (7) provide that and authorised officer must carry his or her identity card at all times when exercising powers in respect of permitted monitoring. An authorised officer is not entitled to exercise those powers in relation to a premises if he or she fails to produce the identity card for inspection when the corporation, or person representing the corporation, subject to the permitted monitoring request he or she do so.

 

Division 2 — Information gathering powers

 

Clause 20 - Secretary may obtain information and documents

 

57.   This clause applies to a person that the Secretary has reason to believe has information or documents relevant to determining whether a corporation has complied or is complying with the requirements imposed by the Bill or the Steel Transformation Plan, paragraph (1)(a). The clause also applies to a person who the Secretary has reason to believe has information relevant to determining if the information provided for the purpose of obtaining a competitiveness assistance advance, an STP payment or compliance is correct, paragraph (1)(b).

 

58.   Subclause (2) makes it clear that the Secretary may give written notice to a person requiring that person to provide the Secretary with any such information, documents or copies of documents specified in the notice.

 

59.   Subclause (3) provides that a person has committed an offence if the person fails to comply with the notice given under subclause (2). The penalty for failing to comply is 20 penalty units.

 

60.   Subclause (4) provides that the period specified under subclause (2) must not be less than 14 days after the notice is given and that the notice must set out the effect of subsection (3) and sections 137.1 and 137.2 of the Criminal Code, which deal with false or misleading information or documents.

 

Clause 21 - Copy documents—compensation

 

61.   The clause provides that a person is entitled to be paid reasonable compensation for complying with Clause 20.

 

Clause 22 Secretary may inspect and copy original documents

 

62.   This clause provides that the Secretary may inspect a document and make and retain copies of all or part of a document obtained under paragraph 20(2)(b).

 

Clause 23 Secretary may retain original documents

 

63.   The Secretary may take and retain for as long as is necessary a document produced under paragraph 20(2)(b), subclause 23(1).

 

64.   Subclause (2) provides that if the Secretary takes a document, the person otherwise entitled to posses the document is entitled to be provided with a true copy, certified by the Secretary as soon as practicable.

 

65.   Subclause (3) makes it clear that the certified copy must be received in all courts and tribunals as evidence as if it were the original.

 

66.   Subclause (4) provides that until such time as the certified copy is supplied to the person the Secretary must, at times and places that are appropriate, allow the person to inspect, make copies of or take extracts from the document.

 

Clause 24 - Secretary may inspect and retain copies of documents

 

67.   This clause provides that the Secretary may inspect, and retain, a copy of a document produced under paragraph 20(2)(c).

 

Clause 25 - Self-incrimination

 

68.    Subclause (1) provides that a person is not excused from giving information or producing documents on the grounds that to do so might incriminate the person or expose the person to a penalty.  The effective administration of the STP is a matter of major significance to communities that are heavily reliant on the manufacturing industry for employment and economic growth.  Non-compliance that results in overpayments to sections of the industry are likely to disadvantage other sections of the industry.  The treatment of self-incrimination in the Bill is consistent with enforcement powers in other Commonwealth legislation, and is appropriate when they assist in the effective administration of those laws. They enhance the ability of the Minister to monitor and ensure compliance with the Plan in a way that is consistent with the views of the Senate Standing Committee for the Scrutiny of Bills, as well as the Australian Government‘s legal policy regarding the privilege against self-incrimination.

 

69.   Subclause (2) makes it clear that information given or documents or copies produced by an individual is not admissible in evidence against the individual in criminal proceedings other than proceedings set out in subsection 20(3), or proceedings for an offence under sections 137.1 or 137.2 of the Criminal Code that relates to the Bill or the Plan, or proceedings for an offence under section 149.1 of the Criminal Code, that relates to the Bill or the Plan. The inclusion of the use/derivate use protection restricting the use of information is consistent with the Attorney General’s Department’s Criminal Law Guide. It is to ensure that the Commonwealth can obtain all information and documents necessary to be satisfied that the money provided as a competitiveness assistance advance or as an STP payment was funding the corporation was eligible or entitled to receive.



Part 5 — Miscellaneous

 

Clause 26 - Annual report

 

70.   This clause makes it clear that the Department’s annual report for the years specified in column 1 of the table must include: details of the total amounts of STP payments paid to STP participants for the period set out in column 2 of the table; and information on the progress of the Australian steel manufacturing industry towards improved environmental outcomes and workforce skills development during the preceding financial year.

 

Clause 27 - Delegation

 

71.   This clause provides that the Secretary may delegate certain powers to an SES employee in the Department, except the power to appoint an authorised officer. When exercising a delegation the delegate must comply with any directions from the Secretary.

 

Clause 28 - Appropriation

 

72.   This clause makes it clear that competitiveness assistance advances and STP payments are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly. A standing appropriation under this Bill provides the steel manufacturing industry with certainty in respect of the amount of assistance it is entitled to receive from the Plan. This level of certainty is important for the long-term investment plans and decisions that will be made by the industry as it works through its transformation into a steel manufacturing industry that is economically viable in a low carbon economy. A standing appropriation has also been used in similar industry assistance measures, that include an entitlement element, the most recent being the Automotive Transformation Scheme Act 2009 .

 

Clause 29 - Recovery of amounts by the Commonwealth

 

73.   This clause provides that an amount recoverable by the Commonwealth may be recovered as a debt in a court of competent jurisdiction.

 

Clause 30 - Regulations

 

74.   This clause provides that the Governor General may make regulations prescribing matters required or permitted by the Bill or necessary or convenient to be prescribed for carrying out or giving effect to the Bill.