House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Finance, Senator the Hon Mathias Cormann)

Table of abbreviations and common terms

General Outline

1. The Statute Update (Smaller Government) Bill 2017 (the Bill) would, if enacted, repeal three Acts and amend ten Acts across the Commonwealth to support the implementation of the Government's smaller government agenda. The Bill follows on from a series of government decisions relating to the abolition of a number of bodies announced in earlier tranches of the smaller government agenda.

Application and transitional provisions

2. The Bill includes application and transitional provisions that provide clarity in relation to provisions contained in Schedule 5 relating to any views given to the Minister by and any documents held by the Plant Breeder's Rights Advisory Committee and Schedule 7 relating to the making of rules and amendments to legislative instruments.

The Bill in the context of broader reform activities

3. The Government is transforming the way services are delivered and how government operates to create a smaller, smarter and more productive sustainable public sector.

4. The rationalisation phase of the smaller government agenda is now largely complete following delivery of a comprehensive package of smaller government reforms. This comprehensive package was initiated prior to the 2014-15 Budget with decisions to abolish unnecessary advisory bodies and boards, agencies and statutory bodies implemented. This was followed by a number of successive smaller government initiatives.

5. Consistent with the smaller government agenda the Australian Government Governance Policy came into effect on 15 December 2014. This policy was designed with the intent of preventing the creation of unnecessary bureaucratic structures and ensuring existing Government structures are streamlined further over time. This policy also requires sunset or review dates to be set for all new Commonwealth bodies.

6. By the time of the 2017-18 Budget, the smaller government agenda had announced savings of an estimated $1.5 billion through consolidating, merging and abolishing bodies.

7. The 2017-18 Budget also focused on transforming the way services are delivered and how government operates to create a smaller, smarter and more productive, sustainable public sector, better positioned to respond to the challenges of a rapidly changing environment and the continued need for fiscal discipline.

8. Since 2013, initiatives such as the smaller government agenda, contestability, Operation Tetris, and the efficiency dividends have generated efficiencies of around $7.6 billion in savings. The size of the General Government Sector (GGS) has also reduced.

9. The Bill continues to deliver on the Government's comprehensive package of smaller government reforms, designed to cut waste and duplication, while improving the efficiency and focus of the Commonwealth public service.

Consultation

10. The Statute Update (Smaller Government) Bill 2017 was prepared in consultation with affected Commonwealth entities and where relevant, State consultations have taken place.

Structure of the Bill

11. The Bill is structured in the following schedules:

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Schedule 1 - Tradespersons' rights committees

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Schedule 2 - Oil Stewardship Advisory Council

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Schedule 3 - Product Stewardship Advisory Group

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Schedule 4 - Advisory Group of the Australian Sports Anti-Doping Authority

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Schedule 5 - Plant Breeder's Rights Advisory Committee

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Schedule 6 - Development Allowance Authority

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Schedule 7 - Corporations and Markets Advisory Committee

Main features of the Bill

12. The Bill, if enacted, would support the implementation of the Government's smaller government agenda and abolish seven bodies.

Financial Impact Statement

13. The Bill has no direct financial impacts, it would amend and repeal a number of provisions in the enabling legislation of Commonwealth entities to abolish seven bodies and is designed to reduce waste and duplication and improve the efficiency in the delivery of services within the Australian Government.

Notes on Clauses

Preliminary

Clause 1 - Short title

1. Under this clause, if the Bill is enacted, it may be cited as the Statute Update (Smaller Government) Bill 2017.

Clause 2 - Commencement

2. Under this clause, if the Bill is enacted, then the legislation will commence on the day after the Bill receives the Royal Assent.

Clause 3 - Schedules

3. The items set out in Schedule 1 would repeal the Tradespersons' Rights Regulation Act 1946 and make consequential amendments to the Sea Installations Act 1987.

4. The items set out in Schedule 2 would amend the Product Stewardship (Oil) Act 2000.

5. The items set out in Schedule 3 would amend the Product Stewardship Act 2011.

6. The items set out in Schedule 4 would amend the Australian Sports Anti-Doping Authority Act 2006.

7. The items set out in Schedule 5 would amend the Plant Breeder's Rights Act 1994.

8. The items set out in Schedule 6 would repeal the Development Allowance Authority Act 1992 and the Infrastructure Certificate Cancellation Tax Act 1994 and amend the Airports (Transitional) Act 1996, the Income Assessment Act 1936, the Income Tax Assessment Act 1997 and the Tax Administration Act 1953.

9. The items set out in Schedule 7 would amend the Australian Securities and Investments Commission Act 2001.

NOTES ON SCHEDULE 1 - Tradespersons' Rights Regulation Act 1946.

Introduction

10. Schedule 1 contains the repeal of the Tradespersons Rights Regulation Act 1946.

Background

11. The Tradespersons' Rights Regulation Act 1946 (TRR Act) and its associated regulations underpinned the Australian Recognised Trade Certificate Program (ARTC Program). The ARTC Program was a domestic skills assessment program that operated from 1946-2014 and was managed by Trades Recognition Australia (TRA).

12. The TRR Act provides for six Central Committees, one each for engineering, boilermaking, blacksmithing, electrical, sheet metal and boot trades and a local committee for each trade. The Central Trades Committees operationally functioned as a single committee with representatives from each of the six trades.

13. The TRR Act (and ARTC Program) was established to recognise the trade skills gained by Australians during World War II. It was amended in 1952 to provide formal recognition of the trade skills of migrants in Australia who had undertaken their trade training overseas.

14. State and territory licensing authorities and industry groups were involved in the consultations to replace the ARTC Program, and the implementation of the Trades Recognition Service (TRS). They were formally notified of the program changes on 22 September 2014.

15. The TRR Act effectively became redundant on 1 October 2014 when the ARTC Program closed, and was replaced by the TRS.

16. The TRR Act and the ARTC Program are mentioned in Queensland, Tasmania and Western Australia electrical licensing legislation. These states will not be impacted by the repeal of the Act as the value of ARTCs, which do not have an expiry date, depends on how accepted they are by the state and territory licensing regulators. This operates in a similar way to degrees issued by training providers that subsequently cease to operate.

17. The TRR Act was first identified for review in 1995. A review committee was formed in 1997 and in 1998 it recommended the Act be repealed given the following developments in the domestic training system had removed the underlying rationale for its continuation:

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introduction of a new national Australian Qualifications Framework (AQF) providing an overarching national policy for regulated qualifications in the Australian education and training system;

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introduction of the first industry endorsed national training packages and accredited courses; and

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introduction of a framework of nationally agreed registration requirements for training providers.

18. A repeal bill was introduced to Parliament in 1999. However, Opposition Senators recommended the bill not proceed and it was still before the Senate when Parliament was dissolved prior to the 2001 general election. The bill was not reintroduced in the following parliamentary term.

19. In 2010, Paul G Byrne Consulting was commissioned to conduct another review of the TRR Act and ARTC Program (the Byrne Review). The Byrne Review recommended replacing the ARTC Program with a service that was aligned to the national vocational education and training (VET) system, involving assessment against Australian competency standards in AQF qualifications.

20. In late 2012, a Transitional Advisory Committee (TAC), consisting of government, employer and employee association and licensing authority representatives, convened to consider options for the future of the ARTC Program. All parties agreed on the need to modernise the ARTC Program. As with the previous reviews, the TAC recommended repeal of the TRR Act and replacement of the ARTC Program with an alternative skills assessment service aligned to the national VET system, using registered training organisations to conduct skills assessments. Ministerial approval was received in 2013, and noted in 2014 following a change of government. The ARTC Program was replaced by the TRS on 1 October 2014.

Explanation of the provisions

Part 1 - Repeal of Acts

Tradespersons' Rights Regulation Act 1946

21. Item 1 repeals the whole of the TRR Act.

Part 2 - Other amendments

Sea Installations Act 1987

22. Item 2 removes the reference to the TRR Act from the Schedule in the Sea Installations Act 1987. This is a consequential amendment to remove a reference to the TRR Act which is repealed by Item 1.

NOTES ON SCHEDULE 2 - Product Stewardship (Oil) Act 2000

Introduction

23. Schedule 2 will abolish the Oil Stewardship Advisory Council (the OSAC). This will not preclude the Department of the Environment and Energy from engaging with industry experts on an "as needs" basis to gather advice and guidance on review processes and other matters relating to the administration of the Product Stewardship (Oil) Act 2000 (the PSO Act).

Explanation of the provisions

24. Item 1: Subsection 6(1) (definition of Advisory Council ) repeals the definition of the Advisory Council.

25. Item 2: Subsection 6(1) (definition of voting member ) repeals the definition of the voting member.

26. Item 3: Subsection 10(4) provides that as the OSAC will be abolished there is no requirement to take into consideration any relevant recommendations made to the Minister by the OSAC.

27. Item 4 repeals Part 3 of the PSO Act.

28. Part 3 (sections 11 - 32) of the PSO Act establishes the OSAC and contains provisions regarding the operation of the OSAC. The functions of the OSAC are to provide advice to the Minister on matters related to the Product Stewardship for Oil Scheme. This includes advice on the product stewardship arrangements for oils, the recovery and recycling of used oils, the amount of product stewardship benefits and the state of the oil production and oil recycling industries (see section 12 of the PSO Act).

29. The OSAC is required to meet at least once every 12 months (subsection 22(2) of the PSO Act). In the past, the OSAC has provided input into the reviews of the PSO Act. However, these reviews occur at intervals of four years (see section 36 of the PSO Act). The frequency of the OSAC meetings and the review process is not sufficient to justify the ongoing maintenance of a permanent statutory advisory body. This is particularly so given the Product Stewardship for Oil Scheme is now well established, with over ten years of operation.

30. Repealing Part 3 of the PSO Act, the OSAC, and positions for its members, will cease to exist at the commencement of this Item. Items 1, 2 and 3 are required as a consequence of Item 4, and repeal definitions relating to the OSAC, and references to the OSAC, in the PSO Act.

31. Item 5: Saving provision - protection from civil actions is a saving provision, which provides that despite the repeal of Part 3 of the PSO Act, section 31 will continue to apply after the repeal in relation to any acts done or omitted to be done by a member of the OSAC before the commencement of the repeal of Part 3.

32. Section 31 of the PSO Act provides that a member of the OSAC is not liable for an action or other proceedings for damages for or in relation to an act done or omitted to be done in good faith in the performance or purported performance of any function, or in the exercise or purported exercise of any power, of the OSAC.

NOTES ON SCHEDULE 3 - Product Stewardship Act 2011

Introduction

33. Schedule 3 will abolish the Product Stewardship Advisory Group (the PSAG). The Department of the Environment and Energy will engage with stakeholders on an "as needs" basis on the preparation of the list of classes of products to be considered for some form of accreditation or regulation. For example, the 2016-2017 Product List includes products such as plastic microbeads and products containing them, end-of-life batteries, photovoltaic systems, electrical and electronic products, and plastic oil containers as classes of products that may be suitable for some form of accreditation or regulation under the Product Stewardship Act 2011 (the PS Act). Consequently, the ongoing requirement for a permanent statutory body to perform this function is no longer justified.

Explanation of the provisions

34. Item 1: Section 6 (definition of Advisory Group ) repeals the definition of the Advisory Group.

35. Item 2: Section 108B repeals the establishment and functions of the PSAG.

36. Item 3: Schedule 1 repeals further provisions about the PSAG identified in subsection 108B(3).

37. The PSAG is established by subsection 108B(1) of the PS Act. The PSAG's functions are to provide advice to the Minister in relation to the performance of the Minister's function of preparing an annual list of classes of products that are to be considered for some form of accreditation or regulation under the PS Act in the following financial year; and the performance of other ministerial functions under the PS Act (see subsection 108B(2)).

38. As the Department of the Environment and Energy will engage with stakeholders on an "as needs" basis on the preparation of the list of classes of products to be considered for some form of accreditation or regulation, the ongoing maintenance of a permanent statutory body to perform this function is no longer justified.

39. Item 2 will repeal section 108B of the PS Act. At the commencement of this Item, the PSAG, and positions for its members, will cease to exist. Items 1 and 3 are required as a consequence of Item 2. These will repeal the definition of Advisory Group in section 6 of the PS Act and repeal Schedule 1 of the PS Act, which sets out the mechanical provisions for the operation of the PSAG.

NOTES ON SCHEDULE 4 - Australian Sports Anti-Doping Authority Act 2006

Introduction

40. Schedule 4 will abolish the Advisory Group of the Australian Sports Anti-Doping Authority (ASADA). The ASADA Advisory Group is not active and has no current members.

Explanation of the provisions

41. Items 1 and 2 remove references to "an Advisory Group" from the simplified outline in section 3 of the Australian Sports Anti-Doping Authority Act 2006.

42. Items 3, 4 and 5 repeal the definitions of "advisory committee", "advisory committee member," "Advisory Group", "Advisory Chair" and "Advisory Group Member" as well as removing the reference to "the Advisory Group" from the definition of sporting administration body and vacancy in Section 4.

43. Item 6 repeals Subsection 5(1) given the abolition of the Advisory Group, there will be no vacancies on the Advisory Group.

44. Item 7 removes the reference to the "Advisory Group" from the simplified outline for Section 20CA of Part 3A of the Australian Sports Anti-Doping Authority Act 2006.

45. Item 8 removes the obligation on the ASADA Chief Executive Officer to make resources and facilities available to the Advisory Group in Paragraph 21(1)(ka).

46. Item 9 repeals Subsection 21(1A) given the abolition of the Advisory Group, the ASADA Chief Executive Officer will no longer receive advice and recommendations from the Advisory Group.

47. Item 10 removes the reference to "Advisory Group member or an" from Subsection 24A(2) given the abolition of the Advisory Group, there is no longer a need to ensure an Advisory Group member is not eligible for appointment as the ASADA Chief Executive Officer.

48. Item 11 repeals Paragraph 24J(2)(b) which is the provision enabling the responsible Minister to terminate the appointment of the ASADA Chief Executive Officer for breaching rules around participation in Advisory Group meetings. This provision will no longer be required as there are no more Advisory Group meetings.

49. Item 12 repeals Division 6 of Part 3A which provided for the ASADA Chief Executive Officer's authority to establish advisory committees. The authority only allows for the establishment of an advisory committee from the members of the Advisory Group. However, there are no Advisory Group members to draw on. Despite the repeal of this clause, the ASADA Chief Executive Officer will still be able to seek advice as and when required.

50. Item 13 repeals Part 4 and abolishes the Advisory Group.

51. Item 14 removes the reference to "ASDMAC member" and "Advisory Group member" in Subsection 43(3) given the abolition of the Advisory Group, there will no longer be a need to ensure an Advisory Group member is not eligible for appointment as a member of the Anti-Doping Rule Violation Panel.

52. Items 15 to 21 amend Subparagraph 50F(a)(ii), Subparagraph 50F(d)(iii), Subparagraph 50F(d)(v), Subparagraph 50F(d)(vi), Subparagraph 50F(e)(iii), Subparagraph 50F(e)(iv) and Subparagraph 50F(e)(v) to remove the Advisory Group from the application of the Public Governance, Performance and Accountability Act 2013.

53. Items 22 and 23 amend Paragraphs 68(e) and 68(f) to remove scope for an entrusted person to disclose protected information if that disclosure was for the purposes of the performance of functions, or duties, or the exercise of powers of the Advisory Group.

54. Items 24, 25 and 26 amend Paragraph 69(aa), Paragraph 69(g), Paragraph 69(h) and Paragraph 69(i) to remove the authority for members of the Advisory Group and those attending a meeting of the Advisory Group and/or advisory committee being entrusted persons within the meaning of the Australian Sports Anti-Doping Authority Act 2006.

55. Items 27 and 28 amend Subsection 78(1A) and Paragraphs 78(4)(a) to (c) given the abolition of the Advisory Group, there will no longer be a need to protect Advisory Group members from civil actions.

56. Item 29 is a Savings Provisions. Although the Advisory Group will be abolished, previous members of the Advisory Group will remain subject to the provisions about the disclosure of protected information and retain the protections from civil action specified in the Australian Sports Anti-Doping Authority Act 2006.

NOTES ON SCHEDULE 5 - Plant Breeder's Rights Act 1994

Intrduction

57. The Plant Breeder's Rights Advisory Committee (PBRAC) is a statutory body established and administered under Part 7 of the Plant Breeder's Rights Act 1994 (PBR Act). Its functions are to advise the government on matters related to the PBR Act.^[1] In March 2014, the National Commission of Audit (the Commission) released recommendations for rationalising agencies, boards and committees as part of streamlining the structure and operation of the Australian Public Service. The Commission recommended that the functions of the PBRAC be considered for consolidation into the portfolio department. Having a statutory body provide plant breeders rights advice to the government increases costs and complexity and does not provide sufficient flexibility regarding the operation and membership of such a body.

58. The amendments remedy this problem by removing the PBRAC from the PBR Act. A more flexible, non-statutory mechanism will provide specialised advice on plant breeders rights matters.

Explanation of the provisions

59. Items 1 to 7 amends subsections 3, 49, 63 to 67, 69, 85 to remove references to the PBRAC from the PBR Act.

60. Item 8: Transitional provisions ensures that any views given by PBRAC to the Minister, and any documents in the possession of the PBRAC, are dealt with appropriately.

NOTES ON SCHEDULE 6 - Development Allowance Authority Act 1992

Introduction

61. Schedule 6 to this Bill abolishes the Development Allowance Authority (DAA) and repeals the inoperative tax-exempt infrastructure borrowing concession that the DAA administered. It also makes related consequential amendments to Commonwealth legislation.

62. Division 16L of the Income Tax Assessment Act 1936 (ITAA 1936), together with the Development Allowance Authority Act 1992 (DA Act) and the Infrastructure Certificate Cancellation Tax Act 1994 (ICCT Act), established the tax exempt infrastructure borrowing concession. This concession provided for income in relation to borrowings for certain infrastructure projects to be non-assessable, but also not to give rise to deductions, for a 15 year period, subject to conditions being met in relation to the project and the use of the borrowings. If the conditions are not met at any point in the life of the project, additional tax is imposed to recover the benefit of the concessions.

63. As part of the creation of the tax exempt infrastructure borrowing concession, the DA Act created the DAA. Under Division 16L of the ITAA 1936, the DA Act and ICCT Act, the DAA was invested with various powers relating to the operation and administration of the tax exempt infrastructure borrowing concession.

64. This tax exempt infrastructure borrowing concession was closed to new projects in 1997. As the tax concession is only available in relation to borrowings for a project for 15 years, it is no longer operative.

65. The abolition of the DAA will reduce compliance costs for affected taxpayers by reducing the overall size of the tax law. The overall magnitude of the compliance save is unquantifiable, but expected to be small.

Explanation of the provisions

66. Items 1, 2 and 8, the whole of the DA Act and the ICCT Act and Division 16L of the ITAA 1936 of Schedule 6 repeal the tax exemption infrastructure borrowing concessions contained in Division 16L of the ITAA 1936, the DA Act and the ICCT Act.

67. Combined, these provisions established the tax exempt infrastructure borrowing concession and the DAA. As a result of their repeal, the concession ceases to exist and the DAA is abolished.

68. The repeal of these Acts will also result in the Development Allowance Authority Regulations lapsing as a result of the repeal of the provision enabling the regulations to be made.

Consequential amendments

69. Part 2 of Schedule 6 makes a number of consequential amendments to remove references to the repealed provisions and Acts in the taxation law and other Commonwealth legislation as follows:

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Items 3 repeals section 56 of the Airports (Transitional) Act 1996 ;

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Items 4 to 8 repeal or amend subsection 6(1) (paragraph (g) of the definition of assessment); subsection 82KZME(1) (note); subsection 82KZME(6); Paragraphs 126(1)(d) and 128B(3)(bb) and Division 16L of Part III of the ITAA 1936;

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Items 9 to 20 repeal or amend the items heads 'infrastructure borrowings' and 'interest' in the table in section 10-5, the item headed 'financial transactions' in the table in section 11-15, the items headed 'financial arrangements', 'infrastructure' and 'interest' in the table in section 12-5, the item headed 'infrastructure' in the table in section 13-1, paragraph 104-71(3)(a), item 12A of the table in section 112-97, paragraphs 118-425(13)(d) and 118-427(14)(d), subsection 230-460(14), and the note to subsection 721-10(2) in the Income Tax Assessment Act 1997;

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Items 21 to 26 repeal or amend subsection 3B(1B), section 8AB, paragraph 8J(2)(ga) and subsections 8W(1B), 13K(11), 15(4) and 15A(11); item 105 in the table in subsection 250-10(1) and item 3 in the table in subsection 355-65(5) in Schedule 1 to the Taxation Administration Act 1953.

Application and transitional provisions

70. Item 1 of the table in clause 2 provides that the abolition of the DAA and the repeal of the tax-exempt infrastructure borrowing concession commence from the day after the Bill receives Royal Assent.

71. Item 27 in Part 3 of Schedule 6 provides the amendments, except as they relate to the closure of the DAA, do not apply in relation to a borrowing that has benefitted from the concession. To the extent it may be required by the residual application of the concession, the Commissioner of Taxation will be able to exercise the powers and functions of the Authority.

72. This means that while the provisions will be repealed going forwards, projects that benefitted from the concessions will still be required to repay the benefit of the concession if they breach the conditions imposed by the legislation.

NOTES ON SCHEDULE 7 - Australian Securities and Investments Commission Act 2001

Introduction

73. Schedule 7 to the Bill repeals Part 9 of the Australian Securities and Investments Commission Act 2001 (ASIC Act), which provides for the establishment, functions and operation of the Corporations and Markets Advisory Committee (CAMAC). The proposed amendments to the ASIC Act would abolish CAMAC.

74. Schedule 7 of the Bill further makes a number of consequential amendments to the ASIC Act as a result of the repeal of Part 9 and provides for the transitional and savings arrangements that are necessary to reflect the cessation of the agency.

75. Cessation of CAMAC was announced in the 2014-15 Budget and was expected to have a positive impact on the fiscal balance of $2.8 million, and on underlying cash of $3.1 million over the forward estimates. These estimates made allowances for the costs of shutting down CAMAC, such as employee redundancies and contract termination costs. The cessation of CAMAC has no regulatory impact on business or the community more broadly.

76. CAMAC was established in 1989 as part of a legislative package that set up a national scheme for corporations and financial markets. CAMAC provides independent advice to the Australian Government on matters relating to the amendment, administration or reform of the corporations legislation, matters relating to companies or a segment of the financial products and services industry, and proposals to improve the efficiency of financial markets.

77. CAMAC is a statutory body corporate, comprising part-time members appointed by a Treasury Portfolio Minister under section 147 of the ASIC Act. Members are appointed in a personal capacity on the basis of their knowledge and experience in business, financial markets, law, economics or accounting. CAMAC is supported by a full-time Executive of three staff.

78. The decision to cease CAMAC was made in the context of the broader Smaller and More Rational Government reforms to reduce the number of Australian Government bodies and streamline the shape of government. The abolition and merger of some government bodies, including CAMAC, was expected to improve coordination and accountability, reduce the costs associated with separate governance arrangements and increase efficiency in how public funds are used to deliver services to the community.

79. Schedule 7 to the Bill does not provide for the termination of the employment of CAMAC's Secretariat staff, as these are matters that are handled by administrative processes conducted in accordance with the Public Service Act 1999 and relevant private contracts.

80. The amendments in Schedule 7 to the Bill were originally introduced into Parliament in 2014 as a separate bill with the title Australian Securities and Investments Commission Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014. This bill had not passed the Senate when the last general election was called and therefore lapsed when Parliament was prorogued in April 2016.

Explanation of the provisions

81. Part 1 makes numerous consequential amendments, repeals and omissions to the ASIC Act to reflect the cessation of CAMAC. References to CAMAC or terms related to CAMAC in the ASIC Act are repealed or omitted as follows.

82. Item 1 provides that a reference to CAMAC is omitted from the long title of the ASIC Act, which sets out that the ASIC Act provides for the Australian Securities and Investments Commission (ASIC), CAMAC and certain other bodies, and for other purposes.

83. Item 2 provides that the objects of the ASIC Act include establishing CAMAC. This description is repealed.

84. Items 3 to 8. Definitions of 'CAMAC', 'Convenor', 'meeting' and 'member' are amended or repealed, as appropriate.

85. Item 9 provides that notwithstanding the repeal of Part 9 of the ASIC Act, ASIC retains its power to advise and make recommendations to the relevant Treasury Portfolio Minister (the Minister), on its own initiative or when requested by the Minister, about matters relating to:

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proposals, amendment or reform of the corporations legislation;

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the operation or administration of the corporations legislation;

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companies or a segment of the financial products and financial services industry; and

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proposals to improve the efficiency of the financial markets.

86. These are matters on which both CAMAC and ASIC currently have the power to advise and make recommendations to the Minister. The functions of CAMAC will therefore not be transferred to ASIC or any other Commonwealth entity.

87. Item 10 provides that CAMAC is omitted from the list of agencies to which a person who is authorised by the Chairperson of ASIC may disclose particular information in certain circumstances. Item 10 omits the reference to CAMAC in subsection 127(4) of the ASIC Act.

88. Item 11 abolishes CAMAC by repealing the provisions of the ASIC Act (that is, Part 9) which establish it and provide for its functions and operation.

89. Item 12 provides that the broad provision in the ASIC Act listing entities and persons who are exempt from liability for damages in relation to the performance of their functions and powers is amended to omit references to CAMAC, its members and its staff, consultants and secondees.

90. Item 13. Section 261 of the ASIC Act provides that a body that was established under the Australian Securities and Investments Commission Act 1989 (the 'old ASIC Act') continues in existence as if it had been established under this Act. A note is added to identify that CAMAC ceased to exist on the commencement of Schedule 7 to this Bill.

Part 2

91. Subitem 14(1). Transitional and saving provisions are required to deal with the repeal of Part 9 of the ASIC Act or to preserve aspects of that Part. Many of these provisions are standard provisions that apply whenever an agency is abolished. References in this Bill and explanatory memorandum to Treasury Minister, Treasury Department and Treasury Secretary are references to the relevant Treasury Portfolio Minister (currently the Minister for Revenue and Financial Services), the Department of the Treasury (the Treasury), and the Secretary of the Department of the Treasury, respectively. 'Asset' and 'liability' are defined broadly to ensure that all assets and liabilities, whether actual, contingent or prospective, of CAMAC are covered. Asset means any legal or equitable estate or interest in real or personal property and any right, power, privilege or immunity. Liability means any liability, duty or obligation. (Land is defined as any legal or equitable estate or interest in real property, whether actual, contingent or prospective.)

92. Subitem 14(2). In terms of the version of the Acts Interpretation Act 1901 that applies to this Bill, the Bill specifies that section 5A of the ASIC Act applies to Part 2 in Schedule 7 to this Bill (the transitional and saving provisions) as if that Part were part of the ASIC Act. Section 5A of the ASIC Act applies the Acts Interpretation Act 1901 as in force on 1 January 2005 (rather than the current version from time to time) to the ASIC Act. Because Part 1 of Schedule 7 to this Bill only amends the ASIC Act, also applying section 5A to Part 2 of Schedule 7 to this Bill makes the operation of the Acts Interpretation Act 1901 consistent.

93. Item 15. When the operation of CAMAC ceases, CAMAC's assets and liabilities cease to be assets and liabilities of CAMAC and become assets and liabilities of the Commonwealth. They do so automatically without the need for any conveyance, transfer or assignment. 'Asset' and 'liability' are defined broadly to ensure that all assets and liabilities, whether actual, contingent or prospective, of CAMAC are covered. Asset means any legal or equitable estate or interest in real or personal property and any right, power, privilege or immunity. Liability means any liability, duty or obligation.

94. While it is not expected that these provisions about the treatment of assets and liabilities will be used, the provisions provide a safety net in the event that CAMAC still has assets or outstanding liabilities upon cessation.

95. Subitems 16(1) and (2) provides a process for the registration of the vesting of land and other assets, for use in the event that any land or other asset becomes vested in the Commonwealth under Part 2 of Schedule 7 to the Bill.

96. Subitem 16(3) provides that unless the contrary is established, a document that appears to be a certificate made under item 16 is taken to be such a certificate and to have been properly made.

97. Subitem 16(4) states that a certificate made under item 16 of Schedule 1 is not a 'legislative instrument' within the meaning of section 5 of the Legislation Act 2003. This provision is merely declaratory of the law and is included to assist readers. The provision in no way purports to exempt the item from the requirements of the Legislation Act 2003.

98. Subitems 17(1) and (2) provides that once CAMAC's operation ceases, references to CAMAC in instruments that were already in force at that time are to be read as references to the Commonwealth. This preserves the operation of instruments despite the cessation of CAMAC. It does not prevent the instrument from being terminated or varied after the cessation.

99. Instrument is defined as including a contract, undertaking, deed, agreement, notice, authority, order or instruction. It also includes an instrument made under an Act or under regulations but does not include an Act or an instrument made under this Bill. The Corporations Agreement 2002 is also excluded from the definition of 'instrument' to avoid the unworkable outcome that would result from references to CAMAC in that Agreement being read as references to the Commonwealth.

100. Subitem 17(3) provides that in order to ensure that the substitution does not create an inappropriate outcome, the Treasury Minister may make rules specifying particular instruments or references in instruments are not treated in accordance with subitem 17(1) of Schedule 7, meaning that a reference or references to CAMAC in an instrument are retained.

101. Subitem 17(4) provides that the rules must be registered in accordance with the Legislation Act 2003. Despite subsection 12(2) of the Legislation Act 2003 (which provides for when legislative instruments may take effect) rules made by the Treasury Minister pertaining to references in instruments may take effect from a day before the rules are registered. They may not, however, take effect before the cessation of CAMAC.

102. Subitem 18(1) provides that except in the case of the operation of the Ombudsman Act 1976 once CAMAC's operation ceases, anything done by or in relation to CAMAC before it is abolished will be treated as if it had been done by, or in relation to, the Commonwealth.

103. Subitem 18(2) provides that for the purpose of the operation of the Ombudsman Act 1976 after the cessation of CAMAC, action taken by or in relation to CAMAC prior to the cessation is taken to have been done by or in relation to the Treasury.

104. As the Commonwealth Ombudsman (the Ombudsman) is not empowered to investigate complaints about the Commonwealth, this provision substitutes the Department (being Treasury) rather than the Commonwealth for CAMAC.

105. If, at the commencement time, a complaint had been made to the Ombudsman about action taken by or in relation to CAMAC, or the Ombudsman had commenced an investigation into action taken by or in relation to CAMAC, then the Ombudsman Act 1976 applies after CAMAC ceases as if the relevant action had been taken by or in relation to the Treasury. This item also allows new complaints to be made and dealt with after CAMAC's operation ceases, again substituting 'the Treasury Department' for 'CAMAC'.

106. Subitem 18(3) provides that in order to ensure that the substitution in subitem 18(1) does not create an inappropriate outcome, the Treasury Minister may make rules specifying:

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particular things which are not treated in accordance with subitem 18(1) of Schedule 7 meaning that things done by or in relation to CAMAC before its cessation will continue to be treated as having been done by or in relation to CAMAC, despite its cessation; or

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particular things which are treated in accordance with subitem 18(1), but instead of substituting the Commonwealth for CAMAC, a person identified in the rules is substituted for CAMAC.

107. Allowing the Treasury Minister to make exceptions in rules provides flexibility to avoid a situation where treating a thing as having been done by the Commonwealth would create an absurd, unworkable or unintended outcome.

108. Subitem 18(4) provides that similar to rules relating to references in instruments, despite subsection 12(2) of the Legislation Act 2003, rules made by the Treasury Minister pertaining to things done by or in relation to CAMAC may take effect before the rules are registered. However, they may not take effect before the cessation of CAMAC.

109. Item 19 provides that once CAMAC ceases, the Commonwealth is substituted for CAMAC as a party to any proceedings that were pending in any court or tribunal and to which CAMAC was a party. This provision ensures that any existing litigation is not affected by the cessation of CAMAC.

110. Item 20. Any records or documents that were in CAMAC's possession need to be transferred to the Treasury once CAMAC's operations are ceased. The records and documents are Commonwealth records for the purposes of the Archives Act 1983, which means that there are particular rules governing their transfer, storage and disposal.

111. Item 21 also preserves the protection of information already disclosed by ASIC to CAMAC under subsection 127(4) of the ASIC Act. If ASIC imposed conditions on a person (for example, a member of CAMAC's Secretariat) under subsection 127(4A) of the ASIC Act in relation to the protected information, then those conditions continue to apply to the person after the commencement time.

112. Under subsection 127(4) of the ASIC Act, disclosure of information by ASIC to CAMAC is taken to be authorised use and disclosure of the information if the Chairperson of ASIC is satisfied that the information will enable or assist CAMAC to perform or exercise its functions or powers. Under subsection 127(4A), the Chairperson of ASIC may impose conditions in relation to the disclosed information.

113. Subitem 22(1). Currently, the Convenor of CAMAC is required to prepare an annual report under section 162 of the ASIC Act. Once the operation of CAMAC ceases, the Treasury Secretary must prepare and give to the Treasury Minister a report on the activities of CAMAC during the final reporting period.

114. Subitem 22(2) provides that the Minister for Finance (being the Minister administering the Public Governance, Performance and Accountability Act 2013) may give the Treasury Secretary written directions in relation to the report on CAMAC's activities during the final reporting period. The Treasury Secretary is required to comply with any such directions in preparing the report.

115. Subitem 22(3) provides that the Treasury Secretary must give the Treasury Minister the report within four months of the commencement time.

116. Subitem 22(4) provides that after the report is given to the Treasury Minister, the Treasury Minister is required to table the report in both the House of Representatives and the Senate within 15 sitting days of that House.

117. Subitem 22(5). The definition of 'final reporting period' clarifies that it refers to the time starting on the day after the end of the period covered by the last annual report prepared by CAMAC and ending immediately before the commencement time (see next paragraph for the definition of commencement time). Under Part 9 of the ASIC Act the Convenor of CAMAC is required to prepare and give to the Minister as soon as practicable after 30 June in each year a report on CAMAC's operations during the financial year.

118. Item 23 provides that no stamp duty or other tax is payable under the law of a State or Territory in respect of the vesting of an asset or a liability under Part 2 of Schedule 7 or the operation of the Part in any other respect.

119. Subitem 24(1) provides that the Treasury Minister may delegate all or any of his or her powers and functions under Part 2 of Schedule 7 to this Bill, with the exception of the power to make transitional and other rules to either the Treasury Secretary or a member of the Senior Executive Service (SES) (or acting member of the SES) of the Treasury. ('SES employee' and 'acting SES employee' are defined in the Acts Interpretation Act 1901.) The delegation must be made in writing.

120. Subitem 24(2) provides that the Minister for Finance may delegate the power in subitem 22(2) to give directions to the Secretary to the Treasury in relation to the final report.

121. Subitem 24(3) provides that the Minister for Finance may delegate this power to the Secretary to the Department of Finance. In exercising powers or functions under a delegation, the delegate must comply with any directions of the delegating Minister.

122. Item 25 provides a savings provision even though item 12 in Part 1 of Schedule 7 removes references relating to CAMAC from the list of entities and persons in subsection 246(1) of the ASIC Act who are exempt from liability for damages in relation to the performance of their functions and powers in certain circumstances, this Bill provides a saving provision.

123. Subitem 25(1) thus provides that despite the repeal of the references to CAMAC, its members and its staff, consultants and secondees in section 246 of the ASIC Act (specifically, paragraphs 246(1)(b), (d) and (h)), those persons continue to be exempt from liability for damages in relation to an act done or omitted in good faith in the performance or purported performance of any function or power conferred under the corporations legislation before the commencement time. The exemption from liability applies in relation to those acts or omissions as if the repeal (in item 12) had not happened.

124. Subitem 25(2) provides that in the case of the reference to CAMAC in paragraph 246(1)(b) of the ASIC Act, the exemption from liability continues in relation to acts or omissions by CAMAC before the commencement time as if the Commonwealth were referred to in that paragraph. This substitutes 'the Commonwealth' for 'CAMAC'.

125. Item 26 provides that to the extent that the operation of Part 2 of Schedule 7 results in the acquisition of property from a person on other than just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. If the Commonwealth and the person cannot agree on the amount of any such compensation to be paid, the person may institute proceedings against the Commonwealth and the court may determine a reasonable amount of compensation.

126. Item 27 provides that the Treasury Minister may make rules specifying matters which are required or permitted by Schedule 7 to be prescribed in rules; or in relation to transitional matters that may arise out of the amendments and repeals made by Schedule 7 (see item 17 above).

127. This standard rule-making power provides flexibility to ensure that the cessation of CAMAC occurs in an orderly and straightforward manner, and that unforeseen matters that may arise can be dealt with appropriately, without confusion, in accordance with the effect of this Bill. It is not designed to override or otherwise alter the effect of this Bill. Particular instruments or references in instruments are treated in accordance with subitem 17(1), but instead of substituting the Commonwealth for CAMAC, a person identified in the rules is substituted for CAMAC.

128. Such rules are legislative instruments governed by the Legislation Act 2003. The rules would be disallowable by either House of the Parliament under section 42 of the Legislation Act 2003.

Statement of Compatibility with Human Rights

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

Statute Update (Smaller Government) Bill 2017

The Statute Update (Smaller Government) Bill 2017 (the 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

The Statute Update (Smaller Government) Bill 2017 would repeal three Acts and amend ten Acts across the Commonwealth to cease or abolish the:

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Central Trades Committee;

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Oil Stewardship Advisory Council;

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Product Stewardship Advisory Group;

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Australian Sports Anti-Doping Authority Advisory Group;

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Plant Breeder's Rights Advisory Committee;

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Development Allowance Authority; and

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Corporations and Markets Advisory Committee.

SCHEDULE 1

Schedule 1 to this Bill will repeal the Tradespersons' Rights Regulation Act 1946 (TRR Act). The TRR Act was enacted to establish a domestic skills assessment program to recognise the trade skills gained by Australians during World War II. The TRR Act and its associated regulations underpinned the Australian Recognised Trade Certificate Program (ARTC Program). The TRR Act was amended in 1952 to provide formal recognition of the trade skills of migrants in Australia who had undertaken their trade training overseas. The ARTC Program was a domestic skills assessment and recognition program that operated from 1946 to 2014 and was administered by Trades Recognition Australia (TRA).

The purpose of the ARTC Program was to assist individuals to gain work by providing them with formal recognition, in the form of an Australian Recognised Trade Certificate (ARTC) of certain trade skills they had acquired overseas. The TRR Act provided for the establishment of central and local trade committees, consisting of industry representatives, to consider applications for ARTCs.

The TRR Act became redundant on 1 October 2014 when the ARTC Program was replaced by the Trades Recognition Service (TRS). The ARTC Program was replaced with the TRS because the ARTC Program became outdated over time, and no longer aligned with the national vocational education and training (VET) system. As a result, industry and employers increasingly moved away from recognising ARTCs as a qualification.

As the ARTC Program has closed and been replaced by the TRS, the TRR Act is no longer used and is a redundant Act. The purpose of the Bill is to repeal the TRR Act as it is no longer required.

Human rights implications

The repeal of the Tradespersons' Rights Regulation Act 1946 engages the following rights:

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Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - Right to Work.

The right to work includes the right for everyone to have the opportunity to gain a living by work which they freely choose or accept.

The repeal of the TRR Act does not limit the right to work, as the ARTC Program has been replaced by the TRS, which promotes the right to work.

An ARTC was a recognised certificate that assisted individuals in gaining work. However, as the TRR Act and ARTC Program increasingly became outdated because of changes in the national VET system, this resulted in the ARTC becoming a certificate that was, over time, increasingly considered to be outdated and recognised by fewer industries and employers. This had the impact of limiting the ability of individuals with ARTCs to gain access to work and further training.

The TRS (which replaced the ARTC Program) is designed to provide individuals who possess certain trade skills gained outside a formal apprenticeship or traineeship pathway (including overseas) with a pathway to obtain a skills assessment and recognised qualification for those skills. The TRS ensures the right to work by making successful applicants under the TRS more employable in work they freely choose or accept through the provision of a recognised qualification that is aligned to the national VET system. An Industry Advisory Group (IAG) has been established to provide ongoing industry advice and expertise on skills recognition policy, industry issues and quality assurance to TRA to enhance quality outcomes across TRA's skills assessment programs (including the TRS).

The repeal of the TRR Act through this Bill is compatible with human rights because it does not limit an individual's right to work.

Conclusion

Schedule 1 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.

SCHEDULE 2

The proposed repeal of the Oil Stewardship Advisory Council does not engage any applicable human rights.

Conclusion

Schedule 2 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.

SCHEDULE 3

The proposed repeal of the Product Stewardship Advisory Group does not engage any applicable human rights.

Conclusion

Schedule 3 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.

SCHEDULE 4

The proposed repeal of the Advisory Group of the Australian Sports Anti-Doping Authority does not engage any applicable human rights.

Conclusion

Schedule 4 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.

SCHEDULE 5

Schedule 5 removes the Plant Breeder's Rights Advisory Committee from the Plant Breeder's Rights Act 1994. A more flexible, non-statutory mechanism will provide specialised advice on Plant Breeder's Rights matters.

Schedule 5 does not engage any of the applicable rights or freedoms.

Conclusion

Schedule 5 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.

SCHEDULE 6

Schedule 6 to this Bill repeals the now inoperative tax exempt infrastructure borrowing concession, and makes related consequential amendments.

Schedule 6 to this Bill does not engage any of the applicable rights or freedoms. None of the provisions being repealed have any ongoing operative effect.

Conclusion

Schedule 6 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.

SCHEDULE 7

Corporations and Markets Advisory Committee Abolition

Overview

Schedule 7 to this Bill repeals Part 9 of the Australian Securities and Investments Commission Act 2001 (ASIC Act), which provides for the establishment, functions and operation of the Corporations and Markets Advisory Committee (CAMAC). In doing so, the agency ceases to exist.

This decision was made in the 2014-15 Budget in the context of the broader Smaller and More Rational Government reforms to reduce the number of Australian Government bodies and streamline the shape of government.

Schedule 7 to this Bill also makes a number of consequential amendments to the ASIC Act as a result of the repeal of Part 9 and provides for the transitional and savings arrangements that are necessary to facilitate the cessation of CAMAC.

Human rights implications

This Bill engages the following human rights:

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the right to a fair hearing and fair trial in Article 14 of the International Covenant on Civil and Political Rights (ICCPR);

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the right to an effective remedy in Article 2 of the ICCPR; and

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the right to privacy in Article 17 of the ICCPR.

Right to a fair hearing and fair trial and right to an effective remedy

Item 18 in Part 2 of Schedule 7 to this Bill (a transitional provision) provides for the Commonwealth to take the place of CAMAC in relation to the operation of any law of the Commonwealth and for the Department of the Treasury (the Treasury) to take the place of CAMAC for the purposes of the Ombudsman Act 1976.

By attributing acts of CAMAC to the Commonwealth or to Treasury, this Bill engages the right to a fair hearing and fair trial in Article 14 of the ICCPR and the right to an effective remedy in Article 2 of the ICCPR. It supports these rights by preserving the capacity for action to be taken in relation to acts of CAMAC, notwithstanding its abolition.

Item 18 in Part 2 of Schedule 7 also provides for the relevant Treasury Portfolio Minister (or delegate in accordance with item 24 in Part 2 of Schedule 7) to make rules which:

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carve out things in relation to which the Commonwealth will not take the place of CAMAC; and/or

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prescribe things in relation to which a particular person - rather than the Commonwealth - will take the place of CAMAC.

Allowing for the making of such rules which carve out things in relation to which the Commonwealth will not take the place of CAMAC could be argued to inhibit future proceedings to be launched against CAMAC, and consequently may limit the right to a fair hearing and fair trial in Article 14 of the ICCPR and the right to an effective remedy in Article 2 of the ICCPR.

It is not expected that any rules will be required under item 18. The item is considered to be reasonable and necessary to mitigate any unintended consequences which might arise from the substitution of the Commonwealth or the Treasury for CAMAC in particular circumstances.

Right to privacy

Item 21 in Part 2 of Schedule 7 (a transitional provision) provides for the continuation of conditions placed on CAMAC in relation to information disclosed under subsection 127(4) of the ASIC Act.

By regulating disclosed information, this Bill engages the right to privacy in Article 17 of the ICCPR. It supports the right to privacy by preserving protections which are in place under the existing law.

It appears that no conditions have been placed on CAMAC in relation to information disclosed by ASIC under subsection 127(4). Item 21 is included as safeguard to ensure that, if it arises that there were such conditions imposed on CAMAC, those conditions continue to apply to the recipients of the information.

Conclusion

This Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Schedule 7 to 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.