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Asbestos Safety and Eradication Agency Bill 2013

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2010-2011-2012-2013

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

ASBESTOS SAFETY AND ERADICATION AGENCY BILL 2013

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable William Shorten MP)

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED





aSBESTOS SAFETY AND ERADICATION AGENCY Bill 2013

OUTLINE

The Asbestos Safety and Eradication Agency Bill (the Bill) will provide for the establishment of a national agency, known as the Asbestos Safety and Eradication Agency (the Agency) as recommended by the Asbestos Management Review Report June 2012 .

Australia was one of the highest per capita users of asbestos in the world. As a direct consequence of this high usage, recent studies have indicated that the incidence of asbestos related disease, such as mesothelioma is increasing. While asbestos-related diseases have traditionally been linked to workers who had direct contact with the material (such as through mining or by working with asbestos in manufacturing processes), there is now evidence to suggest a developing demographic in the wider population including home renovators and their families who are being exposed to asbestos fibres through unsafe removal practices, poor maintenance or damage of asbestos containing materials.

Regulation of asbestos issues is a matter for all levels of government in Australia. The prevalence of asbestos in our built and natural environment also means that asbestos regulation spans multiple areas of government, including health, environment, urban planning and workplace health and safety. The involvement of multiple governments across these diverse areas means that efforts to address asbestos issues have been fragmented and duplicative.

In 2010 the Australian Government established the Asbestos Management Review to make recommendations for the development of a national strategic plan to improve asbestos management and awareness in Australia. The Review report was released in August 2012 and made 12 recommendations.

In the main, the recommendations addressed the structure and content of the national strategic plan. However, the review also recommended the establishment of a new national body to administer that plan.

The functions of the Agency will include:

a)   encouraging, coordinating, monitoring and reporting on the implementation of the National Strategic Plan;

b)   reviewing and amending the National Strategic Plan as required by the National Strategic Plan or at the request of the Minister;

c)   publishing and promoting the National Strategic Plan;

d)   providing advice to the Minister about asbestos safety, if requested to do so by the Minister;

e)   liaising with Commonwealth, State, Territory and local and other governments, agencies or bodies about:

i.            the implementation, review or amendment of the National Strategic Plan; or

ii.          asbestos safety; and

f)    commissioning, monitoring and promoting research about asbestos safety.

The Agency will comprise a CEO and Staff. The CEO will manage the Agency and be responsible for ensuring the Agency performs its functions.

The Bill will also establish a council, to be known as the Asbestos Safety and Eradication Council (the Council), which will have functions that include providing advice to the CEO and Minister and monitoring the adoption of the National Strategic Plan. The Council will consist of: a Chair; one member representing the Commonwealth; four members representing State, Territory and local governments; one member representing the interests of workers in Australia; one member representing the interests of employers in Australia; and two other members appointed by the Minister.

FINANCIAL IMPACT STATEMENT

The cost to establish a new statutory agency will be $10.5 million over the forward estimates.



                        Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Asbestos Safety and Eradication Agency Bill 2013

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Asbestos Safety and Eradication Agency Bill 2013 (the Bill)

The Asbestos Safety and Eradication Agency Bill (the Bill) will provide for the establishment of a national asbestos safety agency, known as the Asbestos Safety and Eradication Agency (the Agency), with responsibility for the implementation, review, and further development of the National Strategic Plan for Asbestos Management and Awareness (the National Strategic Plan), as recommended by the Asbestos Management Review Report June 2012 . It will also provide for the establishment of the Asbestos Safety and Eradication Council (the Council), which will have functions that include monitoring the adoption of the National Strategic Plan.

Human Rights Implications

Right to safe and health working conditions

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of just and favourable working conditions, including the right to safe and healthy working conditions.

The use of all forms of asbestos has been banned in Australian since the end of 2003. This means the import, manufacture, supply, sale and use or reuse of asbestos and asbestos-containing materials is no longer permitted. The ban does not apply to asbestos installed in residential or commercial buildings (i.e. in-situ asbestos) prior to the ban being in place. Notwithstanding the national ban on the use of asbestos in Australia, the continued existence of the substance in existing buildings and structures means that the health effects of asbestos exposure will continue to be felt for years to come due to continued exposures and the long latency periods between exposure and the onset of asbestos-related diseases.

The National Strategic Plan will contain priority matters including systematic identification of material containing asbestos, and systems, timelines and processes for removal and disposal of such material. Through its administration of the National Strategic Plan the Agency will actively work to reduce the risks posed by asbestos in workplaces around Australia. The Council, with representatives from State, Territory and local government, and specific representation of a representative of workers and also of employers , will, through its function of monitoring the implementation of the National Strategic Plan and providing advice regarding it, also play a role in that risk reduction. These measures will promote the right to safe and healthy working conditions for workers throughout Australia.

 

Right to the enjoyment of the highest attainable standard of physical and mental health

Article 12 of the ICESCR requires that State Parties to the Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This includes taking steps towards the improvement of all aspects of environmental and industrial hygiene, and the prevention and control of occupational and other diseases.

Asbestos was widely used in the building construction and manufacturing industries in a significant number and variety of products. It was used extensively in a wide variety of applications during the 1950s to the 1980s, ranging from basic building materials such as asbestos cement sheeting and thermal insulation, to gaskets and brake pads for vehicles and machinery. Although the use of asbestos containing products was banned following increased awareness of the carcinogenic nature of inhaled asbestos fibres, significant amounts of asbestos containing materials remain in the built environment in Australia. Additional risks are posed by asbestos containing materials that are inappropriately disposed of, and naturally occurring asbestos which is present in geographical formations in certain parts of Australia.

Inhaled asbestos fibres pose a significant risk to physical health as they are capable of inducing chronic inflammation of the lung tissues, and may cause a number of diseases. These include pleural diseases, asbestosis, lung cancer and mesothelioma. Due to its extensive past use, Australia has one of the highest incidences of mesothelioma in the world. Due to the long latency period between asbestos exposure and symptoms of the disease appearing, it is expected that the numbers of cases of diagnosis and death from mesothelioma will continue to rise.

In light of the health risks posed by exposure to asbestos fibres, the work of the Agency in implementing the National Strategic Plan will positively engage the right to the highest attainable standard of physical health. The functions of the Agency that will contribute to this right include:

-           encouraging, coordinating, monitoring and reporting on the implementation of the National Strategic Plan;

-           liaising with Commonwealth, State, Territory and local governments, and other agencies and bodies about matters related to asbestos safety; and

-           commissioning, monitoring and promoting research about matters related to asbestos management.

These activities will contribute to the improvement of all aspects of environmental and industrial hygiene throughout Australia by promoting best practice and encouraging coordination between responsible entities, as well as contributing to the prevention and control of asbestos-related diseases arising through exposure to asbestos fibres in both occupational and non-occupational situations. This will particularly be the case in relation to the priority matters in the National Strategic Plan, which include the systematic identification of material containing asbestos and matters regarding systems, timelines and processes for removal and disposal of such material. The participation of the Council with its representatives from State, Territory and local government, and specific representation of a representative of workers and also of employers , will, through its function of monitoring the implementation of the National Strategic Plan and providing advice regarding it, also play a role in that improvement of all aspects of environmental and industrial hygiene. As such, the Bill will make a significant contribution to the right to the enjoyment of the highest attainable standard of physical health by all Australians.

Right to Privacy

The right to privacy in Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. In performing the functions placed upon it by clause 8 of the Bill, the Agency may on occasion be required to handle personal information submitted to it by individuals or third parties.

Any information that is collected by the Agency for the purposes of performing its functions under the Bill will be dealt with in accordance with the Privacy Act 1988 (the Privacy Act), which creates a framework for government agencies in relation to the collection, storage and disclosure of personal information. The Bill does not contain any provisions that would allow it to compel a person to disclosure information, nor to share any information it holds in a manner that is inconsistent with the Privacy Act. As such, the Bill does not limit the right to privacy.

Conclusion

The Bill is compatible with human rights because it advances the protection of human rights.

Minister for Employment and Workplace Relations, the Honourable William Richard Shorten MP



NOTES ON CLAUSES

 

In these notes on clauses, the following abbreviations are used:

FMA Act

Financial Management and Accountability Act 1997

PS Act

Public Service Act 1999

the Agency

Asbestos Safety and Eradication Agency

the Bill

Asbestos Safety and Eradication Agency Bill 2013

the CEO

Chief Executive Officer of the Agency

the Council

Asbestos Safety and Eradication Council

the Plan

National Strategic Plan for Asbestos Management and Awareness

the Report

Asbestos Management Review Report - June 2012



Part 1—Preliminary

  Overview

1.      Part 1 sets out various preliminary provisions, including definitions.

Notes on clauses

Clause 1 - Short title

2.      Clause 1 provides that, once enacted, the short title of the Bill will be the Asbestos Safety and Eradication Agency Act 2013 .

Clause 2 - Commencement

3.      The table in this clause sets out when the Bill’s provisions will commence.

Clause 2A - Object of this Act

4.       This clause provides an object for the Bill, being to establish the Agency which administers the Plan which has as its aim to eliminate asbestos-related disease in Australia through preventing exposure to asbestos fibres. The Agency will administer the Plan in accordance with its functions as set out in clause 8 of the Bill.

Clause 3 - Definitions

5.      This clause sets out the definitions of significant terms used in other provisions throughout the Bill, including the term “asbestos safety”.

Clause 4 - Crown to be bound

6.      This clause provides that the Bill binds the Crown in each of its capacities.

Clause 5 - Extension to external territories

7.      This clause provides that the Bill will have application in every external Territory.



Part 1A—National Strategic Plan  

Overview

8.       Part 1A provides a detailed definition of the Plan.

Notes on clauses

Clause 5A  - National Strategic Plan

 

9.       This clause provides for a detailed definition of the Plan that aligns with recommendation 2 of the Report. It also provides further specificity with respect to the priorities of the Plan providing greater alignment with recommendation 2(b) of the Report.



Part 2—Asbestos Safety and Eradication Agency

  Overview

10.    Part 2 establishes the Agency and sets out its functions and constitution.

Notes on clauses

Clause 6 - Establishment

11.    This clause establishes the Agency.

Clause 7 - Constitution of the Agency

12.    This clause provides that the Agency consists of the CEO and the staff of the Agency. The note to this clause makes it clear that the Agency does not have a legal identity separate from the Commonwealth.  It is intended that the Agency will be a prescribed agency for the purposes of the FMA Act. This means the Agency will be subject to the FMA Act.

Clause 8 - Functions of the Agency

13.     This clause sets out the functions of the Agency, which are:

·            to encourage, coordinate, monitor and report on the implementation of the Plan;

·            to review and amend the Plan as required by the Plan or at the request of the Minister;

·            to publish and promote the Plan;

·            to provide advice to the Minister about asbestos safety, if requested to do so by the Minister;

·            to liaise with Commonwealth, State, Territory and local and other governments, agencies or bodies about the implementation, review or amendment of the Plan, or asbestos safety; and

·            to commission, monitor and promote research about asbestos safety.

14.    It also provides the Agency with the power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

15.    In performing its functions, the Agency must act in accordance with the Plan and any annual operational plan.

16.    The functions of the Agency are constrained by constitutional limits. The Agency may perform its functions only for purposes listed in subclause 8(4).

Clause 9 - Agency to have the privileges and immunities of the Crown

17.    This clause provides that the Agency has the privileges and immunities of the Crown in right of the Commonwealth.



Part 3—Chief Executive Officer

  Overview

18.    Part 3 deals with the functions, responsibilities and obligations of the CEO, including the CEO’s relationship with the Council. Part 3 also deals with the terms and conditions of the CEO’s appointment, remuneration and termination of appointment. Finally, Part 3 allows the CEO to establish committees to assist the CEO and the Council in the performance of their functions.

Notes on clauses

Division 1—Functions of the CEO etc.

Clause 10 - Chief Executive Officer

19.    This clause provides that there is to be a CEO. 

Clause 11 - Functions of the CEO

20.    This clause sets out the functions of the CEO. The CEO is to manage the affairs of the Agency and ensure the Agency performs its functions. The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

Clause 12 - Working with the Asbestos Safety and Eradication Council

21.    This clause requires the CEO to have regard to any advice or recommendations given by the Council when performing the CEO’s functions. The clause further provides that where the Council issues guidelines under clause 29 these must be complied with by the CEO. That requirement to comply with any such guidelines is however subject to a requirement that the CEO comply with the PS Act and the FMA Act .

22.    The CEO may attend meetings of the Council.

Clause 13 - Keeping the Minister informed etc.

23.    This clause requires the CEO to keep the Minister informed of matters relating to the performance of the Agency’s functions. The CEO must give the Minister such reports, documents and information in relation to those operations as the Minister requires. For example, it is anticipated that the CEO will be required to provide an annual update to the Minister on the implementation of the Plan.

Clause 14 - Minister may give directions to the CEO

24.    The Minister may, by legislative instrument, give written directions to the CEO about the performance of the Agency’s functions. The CEO must comply with these directions, unless the direction relates to the CEO’s performance of functions or exercise of powers under the PS Act in relation to the Agency.

25.    A Note alerts the reader to the fact that section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the directions given by the Minister.

Division 2—Appointment of the CEO

Clause 15 - Appointment

26.    This clause provides that the CEO is appointed by the Minister by written instrument, on a full time basis, and holds office for the period specified in the instrument of appointment, which cannot be more than 5 years. However, as the Note points out in reference to section 33AA of the Acts Interpretation Act 1901 , the CEO may be reappointed.

Clause 16 - Acting appointment

27.    This clause provides that the Minister may appoint a person to act as the CEO during a vacancy in the office of CEO or when the CEO is absent from duty, overseas, or unable to perform the duties of the office.

28.    A Note in the clause draws the reader’s attention to sections 33AB and 33A of the Acts Interpretation Act 1901.  Section 33AB has the effect that anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) is not invalid just because the appointment was not valid. Section 33A sets out the general rules that apply where a provision of an Act confers on a person or body power to act in a particular office. 

Division 3—Terms and conditions of appointment

Clause 17 - Remuneration and allowances

29.    This clause provides that the CEO is to be paid the remuneration determined by the Remuneration Tribunal, or, if no determination is made by the Remuneration Tribunal, the CEO is to be paid the remuneration prescribed by the rules. The allowances to be paid to the CEO will be those prescribed by the rules.

30.    This clause has effect subject to the Remuneration Tribunal Act 1973.

Clause 18 - Leave of absence

31.    This clause sets out the arrangements for granting leave to the CEO. The CEO has the recreation leave entitlements determined by the Remuneration Tribunal.

32.    In addition, the Minister may grant the CEO a leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise as the Minister determines.

 

Clause 19 - Outside work

33.    This clause prevents the CEO from engaging in paid work outside the duties of his or her office without the Minister’s approval.

Clause 20 - Disclosure of interests

34.    This clause requires the CEO to give written notice to the Minister of all interests, pecuniary or otherwise, that the CEO has or acquires and that conflict or could conflict with the proper performance of the CEO’s functions.

Clause 21 - Other terms and conditions

35.    This clause provides that the Minister may determine the terms and conditions of the office of the CEO where the terms and conditions are not covered by this Bill.

Clause 22 - Resignation

36.    This clause deals with the form and effect of the CEO’s resignation.

Clause 23 - Termination of appointment

37.    This clause sets out the reasons for which the Minister may terminate the appointment of the CEO. The Minister may terminate the appointment of the CEO for reasons including unsatisfactory performance.

Clause 23A - Delegation

38.     This clause provides that the CEO may delegate their functions to a member of the staff of the Agency. This is intended to assist the CEO to carry out their functions. As it is intended that the Agency will not have a large number of staff, and within that staff possibly no officers within the Senior Executive Service, it is considered appropriate that the CEO has power to delegate broadly within the Agency.

Division 4—Committees

Clause 24 - Committees

39.    This clause provides that the CEO may establish committees to assist in the performance of the functions of the CEO or the Council. The CEO has the power to determine the constitution of these committees, and is required to set out in writing a committee’s terms of reference; the terms and conditions of appointment of the members of a committee; and the procedures to be followed by a committee.

40.    Subclause 24(4) is included to assist the reader, by pointing out that an instrument made under this clause would not be a legislative instrument within meaning of section 5 of the Legislative Instruments Act 2003 .



Part 4—Staff etc.

  Overview

41.    Part 4 deals with staff, consultants and persons assisting the Agency.

Notes on clauses

Clause 25 - Staff

42.    This clause provides that the staff of the Agency must be persons engaged under the PS Act. For the purposes of that Act, the Agency (consisting of the CEO and staff) constitutes a Statutory Agency, and the CEO is the Head of that Statutory Agency.

Clause 26 - Consultants

43.    This clause is included for the avoidance of doubt and provides that the CEO may engage consultants to assist in the performance of the Agency’s functions. The consultants would be engaged on the terms and conditions that the CEO determines in writing.

Clause 27 - Persons assisting the Agency

44.    This clause sets out the persons who may assist the Agency in its functions. These persons are employees of Agencies (within the meaning of the PS Act), officers or employees of a State or Territory or officers or employees of authorities of the Commonwealth, a State or a Territory. The provision would allow staff from State and Territory agencies to be seconded to the Agency for the purpose of providing it with advice and assistance.

                                                        



Part 5—Asbestos Safety and Eradication Council

Overview

45.    Part 5 Division 1 deals with the functions and responsibilities of the Council. Division 2 deals with membership and appointment of the Council. Division 3 deals with remuneration, terms and conditions for Council members, and termination of appointments. Finally, Division 4 provides for procedures regarding Council meetings and decision making.

Notes on clauses

Division 1—Functions of the Asbestos Safety and Eradication Council etc.

Clause 28 - Establishment

46.    This clause establishes the Council.

Clause 29 - Functions of the Asbestos Safety and Eradication Council

47.    This clause provides that the functions of the Council are to:

·            provide advice and make recommendations to the CEO about the performance of the Agency’s functions;

·            provide advice to the Minister about asbestos safety;

·            monitor the implementation of the Plan by Commonwealth, state, territory and local governments; and

·            provide advice and make recommendations about the plan and the Agency’s annual operational plans

48.      The recommendations or advice to the CEO may be given upon a request from the CEO or at the initiative of the Council.

49.     The Council does not need to wait for a request from the Minister before providing advice to the Minister about asbestos safety. This gives flexibility to the Council, and allows it to act in a timely manner.

50.    The Council may issue written guidelines to the CEO. Subclause 12(1A) provides that the CEO must comply with such guidelines, subject to the considerations in subclause 12(1B). 

51.    Subclauses (2A) and (2B) provide that the Council cannot issue guidelines that are inconsistent with any directions given to the CEO by the Minister, and that if any such guidelines are issued they have no effect to the extent of their inconsistency with the Minister’s directions. Subclause (5) is included for the avoidance of doubt, and provides that guidelines issued by the Council are not a legislative instrument.

52.    The Council has the power to do all things necessary or convenient to be done for or in connection with the performance of its function. The Council may involve other persons with expertise in matters relating to asbestos safety for the purpose of assisting the Council to perform its functions when it considers it necessary or appropriate.

Clause 30 - Minister may give directions to the Asbestos Safety and Eradication Council

53.    This clause permits the Minister to give written directions, by way of legislative instrument, to the Council about the performance of the Council’s functions. If the Minister gives such directions, the Council must comply.

54.    A Note alerts the reader to the fact that section 42 (disallowance) and Part 6 (sunsetting) of the Legislative Instruments Act 2003 do not apply to the directions given by the Minister.

Clause 30A - Committees

55.          This clause allows the Council to establish committees to assist them in the performance of their functions. The Council has the power to determine the constitution of the committee, and is required to set out in writing the committee’s terms of reference, the terms and conditions of appointment of members of the committee and the procedures to be followed by the committee.

 

56.          Any such committees established would be expected to align with the priorities of the Plan. Examples of the types of committees that could be established would be committees dealing with best practice; identification; removal; research; international leadership; States, Territories and local government matters.

 

57.          Subclause 30A(4) provides that an instrument made under this clause is not a legislative instrument. This subclause is included to assist the reader by pointing out that the instrument made would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.



 

Division 2—Membership of the Asbestos Safety and Eradication Council

Clause 31 - Membership

58.    This clause provides that the Council is to consist of the Chair, one member representing the Commonwealth, four members representing State, Territory and local governments; one member representing the interests of workers in Australia; one member representing the interests of employers in Australia; and two other members.

Clause 32 - Appointment of Council members

59.    This clause provides that Council members are appointed by the Minister by written instrument, on a part-time basis. The instrument appointing a member to the Council is required to specify whether the member is appointed as the Chair; to represent the Commonwealth; to represent State, Territory and local governments; to represent the interests of workers in Australia; to represent the interests of employers in Australia; or as one of the other members of the Council. All non-governmental members of the Council must have knowledge or experience in one or more of the following fields:

·                  asbestos safety  (defined in clause 3);

·                  public health issues relating to asbestos;

·                  asbestos-related diseases;

·                  the representation of, or the provision of support services to, persons with asbestos related diseases and their families;

·                  financial management; or

·                  corporate governance.

 

60.     Subclauses (4) - (9) set out the process for the appointment of representatives of workers and employers respectively. This process consists of the Minister authorising a body; the authorised body nominating a person; and the Minister considering that nomination. This method of appointment is the same as that used for the appointment of such representatives under the Safe Work Australia Act 2008 (sections 15 and 16).

Clause 33 - Term of Appointment

61.    This clause provides that a Council member will hold office for the period of not more than 3 years as specified in their instrument of appointment.

62.    The Note to this clause notes that section 33AA of the Acts Interpretation Act 1901 applies in relation to reappointment. Section 33AA provides that if an Act confers a power to make an appointment, the power is taken to include a power of reappointment.

Clause 34 - Acting appointment

63.    Clause 34 provides for acting arrangements for both the Chair of the Council and Council members.

64.    Subclause 34(1) provides that the Minister may, by written instrument, appoint a Council member to act as Chair of the Council during a vacancy in that office or during any period that the Chair is either absent from Australia or otherwise unable to perform the duties of the office.

65.    Subclause 34(2) provides that the Minister may, by written instrument, appoint a person to act as a Council member (other than as Chair of the Council) during a vacancy in that office or during any period that a Council member is either absent from Australia or otherwise unable to perform the duties of that office.

66.    Subclauses 34(3) and (4) provide that a person may not be appointed on an acting basis to fill a vacancy left by a non-government appointee on the Council unless that person is eligible to be appointed as a Council member under clause 32(3) of the Bill.

Division 3—Terms and conditions of appointment

Clause 35 - Remuneration and allowances

67.    Subclause 35(1) provides that members of the Council are to be paid the remuneration that is determined by the Remuneration Tribunal. If no such determination is in operation, members are to be paid the remuneration that is prescribed by the rules.

68.    Subclause 35(2) sets out the range of circumstances in which a Council member is not entitled to be paid remuneration provided for by subclause 35(1). This includes situations in which Council members is employed directly by a State, a public statutory corporation, or a company with interests beneficially owned by a State.

Clause 36 - Leave of absence

69.    Clause 36 provides that the Minister may grant leave of absence to the Chair of the Council on the terms and conditions that the Minister determines.

70.    Subclause 36(2) provides that the Chair of the Council may grant leave of absence to Council members on the terms and conditions that the Chair determines. Subclause 36(3) provides that if such a leave of absence extends beyond 3 months, the Chair must notify the Minister of that leave of absence.

Clause 37 - Disclosure of interests to the Asbestos Safety and Eradication Council

71.    This clause provides that Council members must disclosure any interests, pecuniary or otherwise, that relate to a matter being considered or that is about to be considered by the Council. This disclosure must be made as soon as possible after the relevant facts have come to Council member’s knowledge. The disclosure must be recorded in the minutes of the meeting of the Council and in any advice provided to, recommendation made to, or guidelines issued to the CEO by the Council.

72.    Subclause (4) provides that the Council member concerned is not to be involved in in any deliberations or decision making regarding the matter.

Clause 38 - Other terms and conditions

73.    This clause provides that, in relation to matters not covered by this Bill, Council members hold office on the terms and conditions that are determined by the Minister.

Clause 39 - Resignation

74.    This clause provides that a Council member may resign his or her appointment by giving written notice to the Minister. A Council member’s resignation will take effect on the day that it is received by the Minister or on the date that is specified in the written notice.

Clause 40 - Termination of appointment

75.    This clause sets out the circumstances in which the Minister may terminate the appointment of a Council member. The grounds on which a Council member’s appointment may be terminated include misbehaviour; failure, without reasonable excuse, to comply with clause 37 (relating to the disclosure of interests); bankruptcy; unauthorised absence from three consecutive council meetings; or if the member is incapable of performing the duties of his or her office.

Division 4—Procedures of the Asbestos Safety and Eradication Council

Clause 41 - Meetings of the Asbestos Safety and Eradication Council

76.    Clause 41 provides that the Chair of the Council must hold such meetings as are necessary for the efficient performance of the Council’s functions.

77.    Subclause 41(2) provides that the Chair must preside at all meetings at which he or she is present, while subclause 41(3) provides that Council members must appoint one of themselves to preside over meetings where the Chair is not present. The CEO may attend meetings of the Council (see subclause 12(2)).

Clause 41A - Quorum

78.     Clause 41A specifies what constitutes a quorum for Council meetings, including what constitutes a quorum for the purposes of deliberations or decision making when a Council member has a conflict of interest.

Clause 41B - Voting at meetings

79.     Clause 41B provides that questions arising at meetings are to be determined by a majority vote of Council members at the meeting who vote, with a casting vote from the presiding member if required.

Clause 41C - Minutes

80.    Clause 41C provides that the Council must keep minutes.

Clause 41D - Conduct of meetings

81.     Clause 41D provides that the Council can regulate its own meeting procedures.

Clause 41E - Decisions without meetings

82.     Clause 41E provides that the Council is able to make decisions without the need to formally meet, and sets out the process that must be followed in relation to the making of such decisions.



Part 6—Planning and reporting

Overview

83.    Part 6 deals with the Agency’s annual operational plan and annual report.

Notes on Clauses

Division 1—Annual operational plan

Clause 42 - Annual operational plan

84.    Clause 42 provides that the Agency must, before the start of the 12-month period that begins on 1 July in a year, provide to the Minister an annual operational plan relating to that period for his or her approval. The plan must set out the activities that will be undertaken by the Agency during the 12-month period encompassed by the plan and establish performance indicators against which the Agency’s performance is to be assessed.

85.    Subclause 42(3) provides that the annual operational plan is not to be inconsistent with the Plan. This reflects the fact that the activities of the Agency are to support the implementation of the Plan.

86.    Subclause 42(4) provides for the development of the first annual operational plan, should this clause commence on or after 1 July of a year. In this case, the Agency must provide the first annual operational plan to the Minister as soon as practicable after the commencement of this clause.

Clause 43 - Approval of the annual operational plan

87.    Clause 43 provides that the Minister may, by written notice given to the Agency, either approve the annual operational plan or request that amendments be made to the annual operational plan prior to resubmission for approval.

88.    Subclause 43(2) provides that the annual operational plan will come into effect on the first day it is approved by the Minister or on the first day of the period to which it relates (whichever is later).

Clause 44 - Variation of the annual operational plan

89.    This clause provides that the Agency may vary an annual operational plan and submit it to the Minister for approval. Such a proposal to vary the plan may be at the request of the Minister or at the initiative of the Agency.

90.    Following receipt of the proposed variation, the Minister may approve the variation of the annual operational plan by written notice to the Agency. If approved, the variation takes effect on the day of approval.

Division 2—Annual report

Clause 45 - Annual report

91.    Clause 45 provides that the Agency must prepare and give to the Minister for presentation to the Parliament a report on the Agency’s operations during that year. The preparation and presentation of the report must take place as soon as practicable after the end of the financial year to which it relates. A Note reminds the reader that where an Act does not specify a period in which a periodic report is to be furnished, section 34C of the Acts Interpretation Act 1901 applies and requires that the report be furnished as soon as practicable and, in any event, within 6 months of the end of the period to which the report relates.

92.    Subclause 45(2) deals with the preparation of the first report and provides that if this clause commences part way through the financial year, the annual report should relate to the period that starts on the commencement of this clause and ends on the next 30 June.



Part 7—Miscellaneous

Overview

93.    Part 7 deals with the delegation of the Agency’s powers; the Minister’s ability to review the Agency’s role and functions; and provides for the Minister to make rules.

Notes on clauses

Clause 46 - Delegation

94.    Clause 46 provides that the Agency may, in writing, delegate any or all of its functions or powers under the Bill to either the CEO, or an SES employee or acting SES employee who is a member of the staff of the Agency.

95.    Subclause 46(2) provides that, when exercising a power or performing a function that is delegated under this clause, the delegate must comply with any directions given by the Agency.

Clause 47 - Review of the Agency’s role and functions

96.    This clause provides that the Minister must cause a review of the Agency’s ongoing role and functions to be conducted. This review must start 5 years after the commencement of this section, be completed within 6 months, and result in a written report which must be laid before each House of Parliament within 15 sitting days of its completion.

Clause 48 - Rules

97.    This clause provides that the Minister may make rules prescribing matters that are required or permitted by this Bill to be prescribed, or that are necessary or convenient to be prescribed for carrying out for giving effect to this Bill.