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Australian Climate Change Regulatory Authority Bill 2009 [No. 2]

Part 2 Australian Climate Change Regulatory Authority

Division 1 Authority’s establishment, functions, powers and liabilities

10   Australian Climate Change Regulatory Authority

                   The Australian Climate Change Regulatory Authority is established by this section.

Note:          In this Act, Authority means the Australian Climate Change Regulatory Authority—see section 4.

11   Functions of the Authority

                   The Authority has the following functions:

                     (a)  such functions as are conferred on the Authority by this Act or a climate change law;

                     (b)  such functions as are conferred on the Authority by any other law of the Commonwealth;

                     (c)  to do anything incidental to or conducive to the performance of any of the above functions.

12   Powers of the Authority

             (1)  The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

             (2)  The powers of the Authority include, but are not limited to, the power to enter into contracts.

             (3)  Any contract entered into by the Authority is to be entered into on behalf of the Commonwealth.

             (4)  Any real or personal property held by the Authority is held for and on behalf of the Commonwealth.

             (5)  Any money received by the Authority is received for and on behalf of the Commonwealth.

             (6)  The Authority cannot hold real or personal property, or money, on trust for a person other than the Commonwealth.

Note:          The Commonwealth may hold real or personal property or money on trust.

             (7)  To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (4).

14   Authority’s liabilities are Commonwealth liabilities

             (1)  Any financial liabilities of the Authority are taken to be liabilities of the Commonwealth.

             (2)  In this section:

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

15   Authority has privileges and immunities of the Crown

                   The Authority has the privileges and immunities of the Crown in right of the Commonwealth.



 

Division 2 Constitution and membership of the Authority

16   Constitution of the Authority

             (1)  The Authority:

                     (a)  is a body corporate with perpetual succession; and

                     (b)  must have a seal; and

      (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued in its corporate name.

             (2)  The seal of the Authority is to be kept in such custody as the Authority directs and must not be used except as authorised by the Authority.

             (3)  All courts, judges and persons acting judicially must:

                     (a)  take judicial notice of the imprint of the seal of the Authority appearing on a document; and

                     (b)  presume that the document was duly sealed.

17   Membership of the Authority

                   The Authority consists of the following members:

                     (a)  a Chair;

                     (b)  at least 2, and not more than 4, other members.

18   Appointment of members of the Authority

             (1)  Each member of the Authority is to be appointed by the Minister by written instrument.

Note:          The member of the Authority is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901 .

             (2)  A person is not eligible for appointment as a member of the Authority unless the Minister is satisfied that the person has:

                     (a)  substantial experience or knowledge; and

                     (b)  significant standing;

in at least one of the following fields:

                     (c)  economics;

                     (d)  industry;

                     (e)  energy production and supply;

                      (f)  energy measurement and reporting;

                     (g)  greenhouse gas emissions measurement and reporting;

                     (h)  greenhouse gas abatement measures;

                      (i)  financial markets;

                      (j)  trading of environmental instruments.

             (3)  The Chair of the Authority holds office on a full-time basis.

             (4)  A member of the Authority (other than the Chair) may hold office on either a full-time or a part-time basis.

19   Period of appointment for members of the Authority

                   A member of the Authority holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          For re-appointment, see subsection 33(4A) of the Acts Interpretation Act 1901 .

20   Acting members of the Authority

Acting Chair of the Authority

             (1)  The Minister may appoint a person to act as the Chair of the Authority:

                     (a)  during a vacancy in the office of the Chair of the Authority (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Chair of the Authority:

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Acting member of the Authority (other than the Chair of the Authority)

             (2)  The Minister may appoint a person to act as a member of the Authority (other than the Chair of the Authority):

                     (a)  during a vacancy in the office of a member of the Authority (other than the Chair of the Authority), whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when a member of the Authority (other than the Chair of the Authority):

                              (i)  is absent from duty or Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Eligibility

             (3)  A person is not eligible for appointment to act as:

                     (a)  the Chair of the Authority; or

                     (b)  a member of the Authority (other than the Chair of the Authority);

unless the person is eligible for appointment as a member of the Authority.

Note:          See subsection 18(2).

Validation

             (4)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901 .



 

Division 3 Terms and conditions for members of the Authority

21   Remuneration

             (1)  A member of the Authority is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, a member of the Authority is to be paid the remuneration that is prescribed by the regulations.

             (2)  A member of the Authority is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

22   Disclosure of interests to the Minister

                   A member of the Authority must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s functions.

23   Disclosure of interests to the Authority

             (1)  A member of the Authority who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Authority must disclose the nature of the interest to a meeting of the Authority.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the knowledge of the member of the Authority.

             (3)  The disclosure must be recorded in the minutes of the meeting of the Authority.

             (4)  Unless the Authority otherwise determines, the member of the Authority:

                     (a)  must not be present during any deliberation by the Authority on the matter; and

                     (b)  must not take part in any decision of the Authority with respect to the matter.

             (5)  For the purposes of making a determination under subsection (4), the member of the Authority:

                     (a)  must not be present during any deliberation of the Authority for the purpose of making the determination; and

                     (b)  must not take part in making the determination.

             (6)  A determination under subsection (4) must be recorded in the minutes of the meeting of the Authority.

24   Outside employment

             (1)  A full-time member of the Authority must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

             (2)  A part-time member of the Authority must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

25   Leave of absence

             (1)  A full-time member of the Authority has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant leave of absence, other than recreation leave, to a full-time member of the Authority on the terms and conditions as to remuneration or otherwise that the Minister determines.

             (3)  The Chair of the Authority may grant leave of absence to a part-time member of the Authority on the terms and conditions that the Chair determines.

26   Resignation

             (1)  A member of the Authority may resign his or her appointment by giving the Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

27   Termination of appointment

             (1)  The Minister may terminate the appointment of a member of the Authority for misbehaviour or physical or mental incapacity.

             (2)  The Minister may terminate the appointment of a member of the Authority if:

                     (a)  the member:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  if the member is a full-time member—the member engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 24); or

                     (c)  if the member is a part-time member—the member engages in paid employment that conflicts or may conflict with the proper performance of his or her duties (see section 24); or

                     (d)  the member fails, without reasonable excuse, to comply with section 22 or 23; or

                     (e)  the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority.

28   Other terms and conditions

                   A member of the Authority holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.



 

Division 4 Decision-making by the Authority

29   Holding of meetings

             (1)  The Authority is to hold such meetings as are necessary for the performance of its functions.

             (2)  The Chair of the Authority may convene a meeting at any time.

30   Presiding at meetings

             (1)  The Chair of the Authority presides at all meetings at which he or she is present.

             (2)  If the Chair of the Authority is not present at a meeting, the members of the Authority present must appoint one of themselves to preside.

31   Quorum

                   At a meeting of the Authority, 2 members of the Authority constitute a quorum.

32   Voting at meetings etc.

             (1)  At a meeting of the Authority, a question is decided by a majority of the votes of members of the Authority present and voting.

             (2)  The person presiding at a meeting has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

33   Conduct of meetings

                   The Authority may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.

Note:          Section 33B of the Acts Interpretation Act 1901 provides for participation in meetings by telephone etc.

34   Minutes

                   The Authority must keep minutes of its meetings.



 

Division 5 Delegation

35   Delegation by the Authority

             (1)  The Authority may, by writing, delegate any or all of its functions and powers to:

                     (a)  a member of the Authority; or

                     (b)  a person who is:

                              (i)  a member of the staff of the Authority; and

                             (ii)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901 .

             (2)  A delegate must comply with any written directions of the Authority.

             (3)  Subsection (1) does not apply to:

                     (a)  a power to make, vary or revoke a legislative instrument; or

                     (b)  a power conferred by section 186 of the Carbon Pollution Reduction Scheme Act 2009 .

Note:          Section 186 of the Carbon Pollution Reduction Scheme Act 2009 deals with windfall gain declarations.



 

Division 6 Staff of the Authority etc.

36   Staff

             (1)  The staff of the Authority are to be persons engaged under the Public Service Act 1999 .

             (2)  For the purposes of the Public Service Act 1999 :

                     (a)  the Chair of the Authority and the staff of the Authority together constitute a Statutory Agency; and

                     (b)  the Chair of the Authority is the Head of that Statutory Agency.

37   Persons assisting the Authority

                   The Authority may also be assisted:

                     (a)  by officers and employees of Agencies (within the meaning of the Public Service Act 1999 ); or

                     (b)  by officers and employees of authorities of the Commonwealth; or

                     (c)  by officers and employees of a State or Territory; or

                     (d)  by officers and employees of authorities of a State or Territory;

whose services are made available to the Authority in connection with the performance of any of its functions.

38   Consultants

             (1)  The Authority may engage persons having suitable qualifications and experience as consultants to the Authority.

             (2)  The consultants are to be engaged on the terms and conditions that the Authority determines in writing.



 

Division 7 Planning and reporting obligations

39   Corporate plan

             (1)  The Authority must prepare a corporate plan at least once each 3-year period and give it to the Minister.

             (2)  The plan must cover a 3-year period.

             (3)  The plan must include details of the following matters:

                     (a)  the objectives of the Authority;

                     (b)  the strategies and policies that are to be followed by the Authority in order to achieve those objectives;

                     (c)  such other matters (if any) as the Minister requires.

             (4)  The Chair of the Authority must keep the Minister informed about:

                     (a)  changes to the plan; and

                     (b)  matters that might significantly affect the achievement of the objectives set out in the plan.

             (5)  The Minister may give the Chair of the Authority written guidelines that are to be used by the Chair in deciding whether a matter is covered by paragraph (3)(c) or (4)(b).

             (6)  A guideline given under subsection (5) is not a legislative instrument.

             (7)  The Authority must ensure that the first corporate plan is prepared within 12 months after the commencement of this section.

40   Annual report

             (1)  The Authority must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on its operations during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

             (2)  A report under subsection (1) for a financial year must set out:

                     (a)  a description of the objectives of the Authority; and

                     (b)  an assessment of the extent to which the Authority’s operations during that year have achieved those objectives.

             (3)  An assessment under paragraph (2)(b) must be made against performance indicators set out in the report.

             (4)  A report under subsection (1) is in addition to a report under section 105 of the Renewable Energy (Electricity) Act 2000 .

             (5)  If a report under section 105 of the Renewable Energy (Electricity) Act 2000 relating to a calendar year (the REE report ) has been presented to the Parliament, the report under subsection (1) of this section for the financial year ending on 30 June after the end of the calendar year:

                     (a)  need not deal comprehensively with the working of that Act during so much of the financial year as overlaps the calendar year; and

                     (b)  must include a summary of the REE report, to the extent to which the REE report deals with the working of the Renewable Energy (Electricity) Act 2000 during so much of the financial year as overlaps the calendar year.

             (6)  If this section does not commence at the start of a financial year, the period:

                     (a)  beginning at the commencement of this section; and

                     (b)  ending at the end of 30 June after that commencement;

is taken, for the purposes of this section, to be a financial year.



 

Division 8 Other matters

41   Minister may give directions to the Authority

             (1)  The Minister may, by legislative instrument, give directions to the Authority in relation to the performance of its functions and the exercise of its powers.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901 .

             (2)  A direction under subsection (1) must be of a general nature only.

             (3)  The Authority must comply with a direction under subsection (1).

42   Chair of the Authority not subject to direction by the Authority on certain matters

                   To avoid doubt, the Chair of the Authority is not subject to direction by the Authority in relation to the Chair’s performance of functions, or exercise of powers, under:

                     (a)  the Financial Management and Accountability Act 1997 ; or

                     (b)  the Public Service Act 1999 ;

in relation to the Authority.