Revised Explanatory Memorandum
(Circulated by authority of the Minister for Finance, Senator the Hon Mathias Cormann)Notes on Schedule 3 - Bodies ceasing to be bodies corporate
35. The amendments contained in this Schedule would amend the enabling legislation of the Clean Energy Regulator (CER) and the Climate Change Authority (CCA) to provide that the entities are not bodies corporate and do not have a separate legal identity from that of the Commonwealth.
36. The CER and the CCA already hold assets and incur liabilities only for and on behalf of the Commonwealth. They do not require body corporate status to perform their statutory functions. Accordingly, the proposed amendments confirm the status of the CER and the CCA as non-corporate Commonwealth entities.
Part 1 - Amendments
37. The amendments contained in Part 1 of Schedule 3 of the Bill would amend the enabling legislation of the CCA and the CER to remove their body corporate status. This would result in these entities being non-corporate Commonwealth entities for the purposes of the PGPA Act.
Clean Energy Regulator Act 2011
38. Item 1 would repeal the note in section 11 of the Clean Energy Regulator Act 2011 (CER Act) and substitute two notes that would provide that the CER does not have a separate legal identity from the Commonwealth and that references to the Regulator in the Act are to be taken to mean the Clean Energy Regulator.
39. Item 2 would repeal sections 13 and 14 of the CER Act and insert a new section 13, dealing with the powers of the Regulator. The item would also insert a note into the new section 13 detailing that the Chair of the Regulator may enter into contracts and arrangements on behalf of the Commonwealth in accordance with section 23 of the PGPA Act.
40. Item 3 would replace the heading in Division 2 of Part 2 of the CER Act with "Division 2 - Membership of the Regulator".
41. Item 4 would repeal section 16 of the CER Act which currently confers body corporate status on the CER.
42. Item 5 would insert a new section 57A before section 57 of the CER Act, to provide for proceedings in the name of the Regulator. As a non-corporate Commonwealth entity, the CER may bring proceedings in the name of the Commonwealth and proceedings may be brought against it as part of the Commonwealth. The proposed section 57A makes it clear that any proceedings in relation to the functions or powers of the Regulator may be brought by or against the Commonwealth in the name of the Regulator. In practice, this would mean that the CER could sue or be sued in its own name, while being part of the Commonwealth.
43. The new subsection 57A(1) would provide that proceedings brought by the Commonwealth in relation to the functions or powers of the CER may be brought in the name of the Regulator.
44. The new subsection 57A(2) would provide that proceedings brought against the Commonwealth in relation to the functions or powers of the CER may be brought in the name of the Regulator.
Climate Change Authority Act 2011
45. Item 6 would repeal the note in section 10 of the Climate Change Authority Act 2011 (CCA Act) and substitute two new notes that would provide that the Authority does not have a separate legal identity from the Commonwealth and that references to the Authority in the Act mean the CCA.
46. Item 7 would repeal sections 13 and 14 of the CCA Act and insert a new section 13 dealing with the powers of the Authority. The item would also insert a note in the new section 13 detailing that the CEO of the CCA may enter into contracts and arrangements on behalf of the Commonwealth in accordance with section 23 of the PGPA Act.
47. Item 8 would replace the heading in Division 2 of Part 2 of the CCA Act with "Division 2 - Membership of the Authority etc". In connection with this, item 9 would repeal Subdivision A of Division 2 of Part 2.
Part 2 - Transitional provisions
48. Item 10 would provide the transitional provisions for this Schedule of the Bill, with Part 2 of Schedule 5 of the PGPA (C & T) Act applying to the proposed amendments.
49. Part 2 of Schedule 5 of the PGPA (C & T) Act dealt with the decorporatisation of a number of other entities and included a range of standard supporting provisions relating to the treatment of assets and liabilities, the continued operation of contracts and leases and other administrative requirements. Item 10 draws on these provisions to assist the decorporatisation process for the CER and the CCA.