Explanatory Memorandum
(Circulated by authority of the Minister for the Environment and Heritage, Senator the Hon Robert Murray Hill)Product Stewardship (Oil) Bill - Parts 3 and 4 - The Oil Stewardship Advisory Council and Miscellaneous Provisions
Overview
3.1 Part 3 of the Bill establishes the Oil Stewardship Advisory Council [Division 1, clause 11] , defines its functions [Division 1, clause 12], its membership [Division 2] , operation [Division 3] and miscellaneous provisions concerning the Advisory Council [Division 4] . It is expected that the Minister will draw on the industry expertise and advice from this body when considering policy matters in relation to oil recycling and the management of waste oil in Australia.
3.2 Part 4 establishes delegation provisions for the Secretary and the Minister, requires the tabling of an annual report and independent reviews of the objects of the Bill at regular intervals.
Explanation of the provisions
Part 3 - The Oil Stewardship Advisory Council
Division 1 - Establishment and functions of the Oil Stewardship Advisory Council
3.3 The functions of the Advisory Council include providing a broad range of advice to the Minister for the Environment and Heritage on the product stewardship mechanisms, their operation, the oil recycling and oil production industries and markets and other matters as specified by the Minister [clause 12].
Division 2 - Membership of the Advisory Council
3.4 The Advisory Council is comprised of at least 10 members, however, its operations and functions are not impaired should vacancies cause its membership to drop below this number [clause 13] .
3.5 The Minister appoints members to the Advisory Council by written instrument [subclause 14(1)] . The Council must have members drawn from a range of backgrounds so that the oil producing and recycling industry, State and local government, consumer, and other non-government interests are appropriately represented and can contribute to formulating advice to the Minister. The Commonwealth is to be represented by the Environment and Heritage portfolio and the Commissioner of Taxation, who has responsibility for the general administration of this Bill [subclause 14(2)] . The Commonwealth may not numerically dominate the Advisory Council [subclause 14(3)] .
3.6 The Minister must appoint a person with appropriate business or commercial expertise as Chair of the Advisory Council. The Commonwealth may not chair the council [clause 15] .
Terms of office and Terms and conditions of appointment
3.7 Members are appointed on a part-time basis for periods of up to 3 years [clause 16] . Any terms and conditions of appointment not explicitly stated in this Bill may be specified by the Minister [clause 17] .
3.8 Remuneration is specified by the Remuneration Tribunal, or in the absence of a determination prescribed by regulation. Allowances may be prescribed by regulation [clause 18] .
Leave of absence and Resignation
3.9 The Minister may grant leave of absence to the Chair of the Advisory Council while the Chair holds similar authority in relation to other members [clause 19] . Members may resign from the Advisory Council [clause 20] .
3.10 The Minister may remove members who misbehave or are afflicted by mental and physical incapacity. The Minister may also remove members if they become insolvent, fail without a reasonable explanation to abide by the pecuniary interest provisions of this Bill, absent themselves without leave of absence from 3 meetings or cease to no longer be appropriate representatives of the sectors they were appointed to represent [clause 21] .
Division 3 - Meetings of the Advisory Council
3.11 Division 3 of Part 3 defines the operation of the Advisory Council and the conduct of its meetings.
3.12 Meetings must be held at least once a year. Additional meetings may be called at the discretion of the Chair. The must also convene a meeting in response to a request of five or more members [clause 22] . The Chair, or in the Chair's absence a member elected by the members, presides over meetings which must have a quorum consisting of the greater of six members or a majority of members [clauses 23 and 24] . Resolutions of a meeting are decided by a simple majority of the members present with the presiding member having both a deliberative and casting vote [clause 25] . Where not laid down in this Bill the Advisory Council determines its meeting procedures [clause 26] . Members of the Advisory Council may make written resolutions outside of meetings using a defined set of procedures [clause 27] . Members with a pecuniary interest in an out-of-session resolution may not be a party to that resolution and must disclose the nature of that interest to the Chair [subclause 27(3)] . The Advisory Council must keep records of it meetings and resolutions passed outside of meetings [clause 28] .
3.13 Members who have a pecuniary interest in a matter to be or under consideration must disclose their interest as soon as they become aware of it [subclause 29(1)] and if the Advisory Council determines must not be present during deliberations on the matter or take part in a determination relating to the matter [subclause 29(3)] . The Minister may over-rule an Advisory Council decision preventing a member from participating in a matter in which they have a pecuniary interest [subclause 29(4)] .
3.14 It is recognised that the primary purpose of this body is to draw on the business, commercial and technical expertise of the members, particularly those drawn from the oil industries. As such these members are frequently likely to have interests in the recommendations and advice they provide to the Minister. Exclusion of members may weaken and compromise such advice. It is expected that the Advisory Council in making decisions under subclause 29(2) will take a common sense approach to such cases, however, subclause 29(4) allows the Minister to intervene should this not occur. The Advisory Council must keep records of the disclosure of pecuniary interest and its determinations with regards to such interests [subclause 29(2)] .
Persons may be invited to attend meetings
3.15 The Advisory Council may invite people to attend meetings and advise and inform members of any matter as they see fit [clause 30] . While this expert body is expected to advise the Minister on a wide range of matters it is not expected that it will have an unlimited range of expertise available within its membership. Accordingly, this provision empowers the Advisory Council to seek appropriate outside assistance.
3.16 Division 4 of Part 3 covers miscellaneous provisions in relation the Advisory Council. Individual members are protected from suit with regard to the performance of their duties as members [clause 31] . It would be difficult to find highly experienced and expert people willing to serve on this body without such protection. This provision does not protect the Commonwealth from suit. The Department administering the legislation (currently the Department of Environment and Heritage) provides administrative assistance and support, and, if necessary, financial resources to the Advisory Council to enable it to carry out its functions under this Bill [clause 32] .
3.17 The Secretary may, in writing, delegate to SES or acting SES employees all or any of the functions that are conferred on him or her by this Bill. A delegate is subject to the direction of the Secretary in exercising the powers delegated. [clause 33]
3.18 The Minister may make written delegations to the Secretary or to an SES or acting SES employee for any of the functions and powers conferred on the Minister by the Bill; a delegate being subject to the directions of the Minister in exercising the delegations. [clause 34]
3.19 The Minister must table in each House a report relating to the operations of this Bill and to the product stewardship arrangements generally. This report is to be provided as soon as practicable after the end of each financial year. [clause 35]
3.20 Within 4 years of the commencement of this Act, and thereafter at intervals not longer than 4 years, the Minister must table in each House a report of an independent review into the operations of this Act, relevant provisions of the Customs and Excise Tariff legislation and the extent to which the objects set out in clause 3 have been achieved. The intent of this provision is ensure that the operation of the legislation in terms of meeting the objectives of the Act are regularly monitored and reviewed. [subclauses 36(1), (2) and (3)]
3.21 The Minister must cause a copy of each report of the independent review to be tabled in each House within 15 sitting days of the receipt of the report by the Minister. The independent review must be undertaken by two or more persons who are, in the Minister's opinion, appropriately qualified and include at least one person who is not an employee of the Australian Public Service. [subclause 36(4)]
3.22 The Governor-General may make regulations necessary or convenient to the operations of the Bill and giving effect to its provisions. Regulations also may be made prescribing matters required or permitted by this Bill. This is the power that will be used to make regulations for matters specified in this bill. [clause 37]