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Australian Capital Territory (Planning and Land Management) Amendment Bill 2017

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2016-2017

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

AUSTRALIAN CAPITAL TERRITORY (PLANNING AND LAND MANAGEMENT) AMENDMENT BILL 2017

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure and Transport,

the Hon Darren Chester MP)

 

 



 

 

AUSTRALIAN CAPITAL TERRITORY (PLANNING AND LAND MANAGEMENT) AMENDMENT BILL 2017

 

 

Outline

The Australian Capital Territory (Planning and Land Management) Amendment Bill 2017 would make amendments to the Australian Capital Territory (Planning and Land Management) Act 1988 (the PALM Act) to improve the governance, transparency and accountability of the National Capital Authority (NCA). It does this by establishing the Authority of the NCA as the NCA’s accountable authority under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and empowering it to provide the Chief Executive of the NCA with specific directions.  (The PALM Act uses the term ‘Authority’ when referring to what for the NCA and other statutory bodies is commonly called the ‘Board’). 

 

The NCA is a statutory authority established when the ACT was granted self-government to manage the interests of the Commonwealth in Canberra, especially the planning and management of major Commonwealth assets in nationally important areas. These assets are a broad collection of public open spaces, lakes, dams, memorials, infrastructure and buildings.  The NCA also prepares and administers the National Capital Plan, and reviews and proposes amendments as necessary.

Without this amendment, the Authority does not have any responsibility for or power to govern the agency. The NCA’s Chief Executive, and not the Authority, is the accountable authority under the PGPA Act. This arrangement does not provide decision making within the NCA with sufficient oversight and transparency, nor provide the requisite support to the Minister. Establishing the Authority as the accountable authority and enabling it to give specific directions to the Chief Executive will allow it to become involved in NCA operations, and clarify the current Authority-Chief Executive relationship. The Organ and Tissue Authority has similar governance arrangements.

 

The Bill also provides for related amendments that support the Authority in satisfying its responsibilities as the accountable authority and update the PALM Act to make it consistent with established policy on public sector governance. This includes making all Authority members officials of the NCA so as to engage PGPA Act provisions concerning the duties of officials, notably care and diligence. Related amendments clarify the Minister’s existing powers by obliging the Authority to comply with a Ministerial direction other than where this conflicts with its performance of powers under the PGPA Act and by specifying that such amendments are legislative instruments. The Bill also includes amendments to clearly delineate the different responsibilities of the Authority as the accountable authority under the PGPA Act and the Chief Executive as the head of the statutory agency for the purposes of the Public Service Act 1999 (PS Act).

 

The Office of Parliamentary Counsel, the NCA, the Department of Finance, the Department of the Prime Minister and Cabinet, the Australian Government Solicitor, the Attorney-General’s Department and the Australian Public Service Commission have been consulted in the preparation of this Bill.

 

Financial impact statement

 

This Bill would have no financial implications.



 

Statement of Compatibility with Human Rights

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

 

Australian Capital Territory (Planning and Land Management) Amendment Bill 2017

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 Bill

This Bill would amend the Australian Capital Territory (Planning and Land Management) Act 1988 so as to improve the NCA’s governance arrangements to enable it to better fulfil its role of managing the interests of the Commonwealth in Canberra as the national capital .

Human rights implications

Amendment of sections 5(2)(b), 5(2)(c) and 46 to establish the Authority as the accountable authority under the PGPA Act and strengthen its ability to direct the Chief Executive will strengthen oversight and transparency of the NCA, and do not raise any applicable human rights issues. Making all Authority members officials of the NCA engages PGPA Act provisions concerning the duties of officials, notably care and diligence. 

The removal of the word “general” from existing section 46 of the Act and the section 46(3) requirement that the Chief Executive must comply with directions from the Authority is to ensure that the Authority is able to give effect to its duties as an accountable authority. Subsection 46(5) is included to assist readers by clarifying that an Authority direction to the Chief Executive is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. The inclusion of 46(4) clearly delineates the different responsibilities of the Authority as the accountable authority under the PGPA Act and the Chief Executive as the head of the statutory agency for the purposes of the PS Act. These amendments do not have human rights implications.

Related amendments to section 7 to clarify that a direction given by a Minister is a legislative instrument and to oblige the Authority to comply with a Ministerial direction other than where this conflicts with the its performance of powers under the PGPA Act are consistent with the Authority’s role as accountable authority.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

Minister for Infrastructure and Transport, the Hon Darren Chester MP

 



NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.       This clause would provide that the short title of the Act is the Australian Capital Territory (Planning and Land Management) Amendment Act 2017.

 

Clause 2: Commencement

 

2.       This clause would provide that this Act commences on 1 July 2018.

 

SCHEDULE 1 - Governance Arrangements

 

Part 1 - Amendments

 

3.       Item 1 - Paragraph 5(2)(b)

 

Item 1 would amend paragraph 5(2)(b) to establish the Authority as the accountable authority under the PGPA Act so as to empower it to take responsibility for governance of the NCA as a Commonwealth entity and to appropriately influence its day-to-day operations.

 

4.       Item 2 - Subparagraphs 5(2)(c)(i) and (ii)

 

Item 2 would repeal subparagraphs 5(2)(c)(i) and (ii) and substitute reference to the members of the Authority being officials of the Authority. As the NCA is a listed entity, it is necessary for the Act to state that the members of the Authority are officials (see subsection 13(5) of the PGPA Act). 

 

5.       Item 3 - Section 7

 

Item 3 would add a new subsection 7(1) to clarify that a direction given by a Minister is a legislative instrument. It would also add new subsections 7(2) and 7(3) to oblige the Authority to comply with the Minister’s directions, but with the exception of the extent to which a direction conflicts with the Authority’s performance of functions or exercise of powers under the PGPA Act. This exception is desirable given that the Authority will be the accountable authority for the purposes of the PGPA Act. The note in subsection 7(1) is declaratory of the law and does not represent a new exemption from disallowance or sunsetting. Subsection 7(4) on the inclusion of Ministerial directions in the NCA annual report replicates the existing subsection 7(2) of the PALM Act.

 

6.       Item 4 - Section 46  

 

Item 4 would add new subsections 46(1) and (2) to give the NCA Authority power to issue more than just general directions to the NCA Chief Executive by removing the word ‘general’ and consequently changing ‘general directions’ to ‘written directions.’ This will enable the Authority to influence the operations of the NCA and provide an appropriate level of support to both the Chief Executive and the Minister. The inclusion of the term ‘written’ is consistent with contemporary drafting practice. Subsection 46(5) is to clarify that directions from the Authority are not legislative instruments. Subsection 46(5) is merely declaratory in nature and does not provide a substantive exemption from the requirements of the Legislation Act.

Subsection 46(3) provides that the Chief Executive must comply with a direction given by the Authority. However, subsection 46(4) provides that the Chief Executive is not required to comply with such a direction if it relates to the Chief Executive’s performance of functions or exercise of powers under the PS Act. The inclusion of subsection 46(4) ensures that the Chief Executive’s autonomy is preserved when it comes to decisions relating to the employment of the staff of the NCA. For example, the Authority will be able to direct the Chief Executive to allocate additional resources in a particular area but will not have the ability to direct the Chief Executive to employ particular individuals. The objective is to provide the NCA with strong governance arrangements, with the Authority as the accountable authority under the PGPA Act and the Chief Executive as the head of the statutory agency for the purposes of the PS Act.

 

Part 2 - Saving and Transitional Provisions  

 

7.       Item 5 - Saving of directions 

 

Item 5 would ensure that directions under section 46 of the PALM Act that were in force immediately before the day this item commences have effect on or after that day as if they had been made by the Authority under subsection 46(2) of that Act, as would be amended by Part 1 of Schedule 1 of this Bill.

 

8.       Item 6 - Transitional - duties of accountable authority

 

Item 6 would ensure that for the purposes of sections 39, 42 and 46 of the PGPA Act, the Authority is the accountable authority in relation to the reporting period (within the meaning of that Act) for the Authority that ends immediately before this item commences.

 

9.       Item 7 - Transitional - things done by, or in relation to, the accountable authority  

 

Item 7 would ensure that anything done by, or in relation to, the Chief Executive as the accountable authority for the purposes of the finance law (within the meaning of the PGPA Act) before the commencement of this item has effect after that commencement as if the thing had been done by, or in relation to, the Authority as the accountable authority.