DEFENCE CAPABILITY ASSURANCE AND OVERSIGHT BILL 2023

2022-2023

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Defence Capability Assurance and

Oversight Bill 2023

No. , 2023

(Senator Fawcett)

A Bill for an Act to establish the Defence Capability

Assurance Agency, the Inspector-General of

Defence Capability Assurance and the

Parliamentary Joint Committee on Defence, and

for related purposes

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Contents

Part 1--Preliminary

Short title ........................................................................................... 1

Commencement ................................................................................. 2

Objects of this Act ............................................................................. 2

Simplified outline of this Act ............................................................ 3

Definitions ......................................................................................... 4

Act binds the Crown .......................................................................... 6

Extension to external Territories ....................................................... 7

Extra-territorial application ............................................................... 7

Part 2--Defence Capability Assurance Agency

Division 1--Introduction

Simplified outline of this Part ............................................................ 8

Division 2--Establishment and functions

Establishment .................................................................................. 10

Functions ......................................................................................... 10

Powers ............................................................................................. 12

Defence Capability Assurance Agency does not have privileges and

immunities of the Crown ................................................................. 12

Access to information, premises and materiel ................................. 13

General directions ............................................................................ 13

Providing reports and advice to project staff and decision-makers .. 13

Reporting to the Defence Minister and National Security Committee

of the Cabinet .................................................................................. 14

Reporting to the Committee ............................................................ 14

Industry partner ............................................................................... 15

Division 3--Director of the Defence Capability Assurance Agency

Director............................................................................................ 16

Functions of the Director ................................................................. 16

Director to act in accordance with directions of Board .................... 16

Appointment .................................................................................... 17

Acting appointment ......................................................................... 17

Terms and conditions ...................................................................... 18

Remuneration .................................................................................. 18

Leave of absence ............................................................................. 18

Other paid work ............................................................................... 19

Resignation ...................................................................................... 19

Termination of appointment ............................................................ 19

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Division 4--Board of the Defence Capability Assurance Agency

Subdivision A--Establishment and functions of the Board

Establishment of the Board .............................................................. 21

Functions of the Board .................................................................... 21

Subdivision B--Board members

Membership ..................................................................................... 21

Appointment .................................................................................... 22

Acting appointments ........................................................................ 23

Terms and conditions ...................................................................... 24

Remuneration .................................................................................. 24

Leave of absence ............................................................................. 24

Other paid work ............................................................................... 25

Resignation ...................................................................................... 25

Termination of appointment ............................................................ 25

Subdivision C--Meetings of the Board

Convening meetings ........................................................................ 26

Presiding at meetings ....................................................................... 26

Quorum............................................................................................ 26

Voting at meetings ........................................................................... 27

Conduct of meetings ........................................................................ 27

Minutes ............................................................................................ 27

Decisions without meetings ............................................................. 27

Division 5--Staff, contractors and other persons assisting

Permanent staff ................................................................................ 29

Contractors ...................................................................................... 29

Other persons assisting the Defence Capability Assurance Agency

on a shorter-term basis ..................................................................... 29

Division 6--Other matters

Requirement to be cleared for security purposes ............................. 30

Defence Capability Assurance Agency must comply with defence

regulatory framework ...................................................................... 30

Delegation by Director .................................................................... 30

Part 3--Inspector-General of Defence Capability Assurance

Division 1--Introduction

Simplified outline of this Part .......................................................... 32

Division 2--Establishment and functions

Inspector-General ............................................................................ 33

Functions of the Inspector-General.................................................. 34

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

iii

Division 3--Inquiries

Conduct of inquiries ........................................................................ 36

Power to obtain information and documents ................................... 37

Entry to premises occupied by a monitored agency ......................... 39

Security of monitored agency documents ........................................ 39

Reporting of inquiry findings by the Inspector-General .................. 39

Division 4--Administrative provisions relating to the

Inspector-General

Appointment of the Inspector-General ............................................ 41

Acting appointments ........................................................................ 41

Remuneration .................................................................................. 42

Leave of absence ............................................................................. 42

Other paid work ............................................................................... 42

Other terms and conditions .............................................................. 43

Resignation ...................................................................................... 43

Termination of appointment ............................................................ 43

Division 5--Staff

Staff ................................................................................................. 45

Staff must be cleared for security purposes ..................................... 45

Part 4--Parliamentary Joint Committee on Defence

Division 1--Introduction

Simplified outline of this Part .......................................................... 46

Division 2--Establishment and functions of Parliamentary Joint

Committee on Defence

Parliamentary Joint Committee on Defence .................................... 47

Functions of the Committee ............................................................ 47

Persons to brief the Committee ........................................................ 48

Annual report ................................................................................... 48

Division 3--Procedure

Power to obtain information and documents (other than from

defence agencies)............................................................................. 49

Provision of information to Committee by defence agencies .......... 49

Certificates by Defence Minister ..................................................... 50

Evidence .......................................................................................... 52

Publication of evidence or contents of documents ........................... 52

Restrictions on disclosure to Parliament .......................................... 53

Continuance of evidence ................................................................. 54

Division 4--Offences

Defence Capability Assurance and Oversight Bill 2023

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Offences relating to disclosing or publishing certain evidence or

documents ........................................................................................ 55

Offences relating to giving evidence or producing documents ........ 56

Protection of witnesses .................................................................... 57

Secrecy ............................................................................................ 58

Prosecution of offences ................................................................... 58

Division 5--Administration

Appointment of members ................................................................ 59

Terms of office of Committee members .......................................... 59

Chair of the Committee ................................................................... 60

Deputy Chair of the Committee ....................................................... 60

Meetings .......................................................................................... 61

Quorum............................................................................................ 62

Voting at meetings ........................................................................... 62

Proceedings ..................................................................................... 63

Staff of the Committee and staff of Committee members must be

cleared for security purposes ........................................................... 63

Protection of information and documents ........................................ 63

Division 6--Subcommittees

100

Subcommittees ................................................................................ 64

101

Term of office .................................................................................. 64

102

Operation of subcommittees ............................................................ 64

103

Application of provisions of Part to subcommittees ........................ 64

Part 5--Miscellaneous

104

Simplified outline of this Part .......................................................... 66

105

Protection from liability................................................................... 66

106

Rules ................................................................................................ 66

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

A Bill for an Act to establish the Defence Capability

Assurance Agency, the Inspector-General of

Defence Capability Assurance and the

Parliamentary Joint Committee on Defence, and

for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act is the

Defence Capability Assurance and Oversight Act

2023

Part 1

Preliminary

Section 2

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

106

The day after the day on which the

Consolidated Revenue Fund is appropriated

under an Act to the Department in which this

Act is administered for payment for the

purposes of this Act.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Objects of this Act

The main objects of this Act are to:

(a) expedite the procurement of defence capability by providing

capability managers and the Australian Government a high

degree of confidence in the veracity and completeness of the

information they use to make timely, risk-informed

decisions; and

(b) provide assurance to capability managers, the Australian

Government and the Parliament that weapons systems will be

Preliminary

Part 1

Section 4

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

available when required and effective against extant and

emerging threats; and

requirements more effective and efficient by ensuring:

(i) that risk assessment throughout the capability life cycle

is consistently conducted by people who have

appropriate qualifications and relevant experience; and

(ii) the assessment and reporting of risk is independent, free

from overt or unintended bias or influence; and

(iii) identified risk is transparent to decision-makers; and

(iv) proposed risk mitigations are effective.

4 Simplified outline of this Act

This Act provides for enhanced capability assurance of defence

materiel programs.

This Act establishes the Defence Capability Assurance Agency.

The Agency will conduct capability assurance of defence materiel

programs and establish an appropriately qualified workforce to

conduct test and evaluation and risk assessments for defence

materiel programs. The Agency also has a Defence Capability

Assurance Regulator function, which is to be facilitated by an

industry partner.

This Act establishes the Inspector-General of Defence Capability

Assurance. The Inspector-General will provide oversight of the

Defence Department, the Defence Force and the Defence

Capability Assurance Agency and can inquire into particular

defence materiel programs.

This Act also provides for a Parliamentary Joint Committee on

Defence. The Committee will provide oversight of the performance

of the Defence Capability Assurance Agency and the

Inspector-General, and review and report to the Parliament on

matters relating to the defence of Australia and defence agencies.

Part 1

Preliminary

Section 5

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

5 Definitions

In this Act:

AGO

means that part of the Defence Department known as the

Australian Geospatial-Intelligence Organisation.

ASD

means the Australian Signals Directorate.

Board

means the Board of the Defence Capability Assurance

Agency.

Board member

means a member of the Board and includes the

Chair of the Board and Deputy Chair of the Board.

Committee

means the Parliamentary Joint Committee on Defence.

Committee member

means a member of the Committee and

includes the Chair of the Committee.

decision-makers

, for a defence materiel program, means any of the

following to the extent they are engaged in making decisions

regarding the program:

(a) any officer or employee of the Commonwealth or an

authority of the Commonwealth (including a Minister and a

member of the Defence Force);

including the Cabinet or a Committee of the Cabinet.

defence agency

means:

(a) the Defence Department; or

(b) the Defence Force; or

(d) the Office of the Inspector-General of Defence Capability

Assurance; or

(e) any Commonwealth entity (within the meaning of the

Public

Governance, Performance and Accountability Act 2013

), not

mentioned in the preceding paragraphs, which is in the same

portfolio as the Defence Department.

Preliminary

Part 1

Section 5

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Defence Capability Assurance Regulator function

: see

subsection 11(2).

Defence Department

means the Department of State that deals

with defence and that is administered by the Defence Minister.

defence domains

means the following defence operational

domains:

(a) information and cyber;

(b) maritime;

(d) space;

(e) land.

defence materiel program

means a project or combination of

projects engaged in by or on behalf of the Commonwealth for the

acquisition and sustainment of particular materiel for the Defence

Force.

Defence Minister

means the Minister administering section 1 of

the

Defence Act 1903

DIO

means that part of the Defence Department known as the

Defence Intelligence Organisation.

Director

means the Director of the Defence Capability Assurance

Agency.

head

means:

(a) in relation to the Defence Department--the Secretary of the

Department; or

(b) in relation to the Defence Force--the Chief of the Defence

Force; or

Director; or

(d) in relation to the Office of the Inspector-General of Defence

Capability Assurance--the Inspector-General; or

(e) in relation to any other defence agency--the person holding,

or performing the duties of, the principal office in respect of

the agency.

Part 1

Preliminary

Section 6

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Inspector-General

means the Inspector-General of Defence

Capability Assurance.

materiel

means any major equipment or system (including aircraft,

vessels, vehicles, weapons and networks) intended for use for

defence operational purposes.

monitored agency

means:

(a) the Defence Department; or

(b) the Defence Force; or

paid work

means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise).

quarter

means a period of 3 months beginning on 1 January,

1 April, 1 July or 1 October.

relevant member

, in relation to a defence agency:

(a) means a member of the staff of the defence agency, whether:

(i) an employee of the defence agency; or

(ii) a consultant or contractor to the defence agency; or

(iii) a person who is made available by another

Commonwealth or State authority or another person to

perform services for the defence agency; and

(b) for the Defence Force--includes a member of the Defence

Force; and

Board member of the Defence Capability Assurance Agency.

rules

means rules made under section 106.

6 Act binds the Crown

(1) This Act binds the Crown in each of its capacities.

(2) However, this Act does not make the Crown liable to be prosecuted

for an offence.

Part 2

Defence Capability Assurance Agency

Division 1

Introduction

Section 9

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Part 2--Defence Capability Assurance Agency

Division 1--Introduction

9 Simplified outline of this Part

There is to be a Defence Capability Assurance Agency.

The Agency's functions include:

(a) conducting test and evaluation and assessing risks for

defence materiel programs; and

(b) providing recommendations and advice on test and

evaluation and risk assessments to project staff and

decision-makers; and

evaluation workforce with relevant qualifications and

experience, and fit for purpose test and evaluation

infrastructure; and

(d) reporting to the Defence Minister and the Parliamentary

Joint Committee on Defence.

In addition, the Agency has a Defence Capability Assurance

Regulator function, to be facilitated by an industry partner. This

function is to establish, maintain and regulate appropriate standards

for the test and evaluation workforce and test and evaluation

infrastructure.

There is to be a Director and a Board of the Defence Capability

Assurance Agency.

The Defence Capability Assurance Agency can engage staff and

contractors, and other persons may assist the Agency.

Persons performing duties for the Defence Capability Assurance

Agency must have security clearances as appropriate for their

duties.

Part 2

Defence Capability Assurance Agency

Division 2

Establishment and functions

Section 10

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Division 2--Establishment and functions

10 Establishment

(1) The Defence Capability Assurance Agency is established by this

section.

(2) The Defence Capability Assurance Agency:

(a) is a body corporate; and

(b) must have a seal; and

and

(d) may sue and be sued.

Note:

The

Public Governance, Performance and Accountability Act 2013

applies to the Defence Capability Assurance Agency. That Act deals

with matters relating to corporate Commonwealth entities, including

reporting and the use and management of public resources.

(3) The Defence Capability Assurance Agency's seal is to be kept in

such custody as the Board directs and must not be used except as

authorised by the Board.

11 Functions

(1) The Defence Capability Assurance Agency has the following

functions:

(a) to conduct test and evaluation for defence materiel programs;

(b) to assess risks associated with defence materiel programs,

based on the test and evaluation it conducts, and to prepare

reports in relation to those assessments;

evaluation, risk assessments and any other matters relating to

capability assurance, for the purposes of:

(i) informing each level of decision-makers for defence

materiel programs; and

(ii) providing input for strategic programs of the Australian

Government (such as the program known as the

Integrated Investment Program or its equivalent)

relating to investment in defence capability;

Defence Capability Assurance Agency

Part 2

Establishment and functions

Division 2

Section 11

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(d) the Defence Capability Assurance Regulator function (see

subsection (2));

(e) for the purposes of enabling effective test and evaluation in

support of defence capability acquisition and sustainment by

or on behalf of the Commonwealth:

(i) to develop and maintain a workforce, comprised of

Defence Force members, APS employees and

contractors, with qualifications and experience in test

and evaluation in accordance with the workforce

standards mentioned in subsection (2);

(ii) to develop and maintain fit for purpose test and

evaluation infrastructure, in accordance with the

infrastructure standards mentioned in subsection (2);

(f) to report, and make recommendations, to the Committee and

the Defence Minister on outcomes in relation to the above

functions;

(g) to inform the Defence Department and Defence Force of

outcomes in relation to the above functions;

(h) any other functions conferred on the Defence Capability

Assurance Agency by this Act or any other Act;

(i) any other functions that are prescribed by rules made for the

purposes of this paragraph;

(j) to do anything incidental to, or conducive to, the

performance of the above functions.

Defence Capability Assurance Regulator function

(2) The

Defence Capability Assurance Regulator function

is to

develop, maintain and regulate appropriate standards for the

following:

(a) the workforce engaged in conducting test and evaluation and

associated activities in relation to defence materiel programs;

(b) the infrastructure used to conduct test and evaluation in

relation to defence materiel programs.

Note:

An industry partner is to facilitate the performance of this function:

see section 19.

Part 2

Defence Capability Assurance Agency

Division 2

Establishment and functions

Section 12

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Performance of functions throughout capability life cycle

(3) The functions of the Defence Capability Assurance Agency, as

they relate to each defence materiel program, are to be performed

throughout the capability life cycle for the program, from the initial

setting of project requirements to the disposal of the relevant

materiel.

Manner of performing functions

(4) In determining the manner in which it performs its functions in

relation to a defence materiel program, including the scope and

priority of test and evaluation activities associated with the

program, the Defence Capability Assurance Agency must:

(a) consult with one or more persons responsible for the

management of the program within the Defence Department

and Defence Force; and

(b) have regard to the complexity and risk profile of the

program; and

capability and the program schedule.

12 Powers

(1) The Defence Capability Assurance Agency has power to do all

things necessary or convenient to be done for or in connection with

the performance of its functions.

(2) The Defence Capability Assurance Agency's powers include, but

are not limited to, the power to enter into contracts and agreements.

13 Defence Capability Assurance Agency does not have privileges

and immunities of the Crown

The Defence Capability Assurance Agency does not have the

privileges and immunities of the Crown in right of the

Commonwealth.

Defence Capability Assurance Agency

Part 2

Establishment and functions

Division 2

Section 14

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

14 Access to information, premises and materiel

The Secretary of the Defence Department and Chief of the Defence

Force must each take all reasonable steps to ensure that the

Defence Department and Defence Force provide the Defence

Capability Assurance Agency with access to information, premises

and materiel, and any other access or assistance, as necessary for

the Agency to perform its functions.

15 General directions

(1) The Defence Minister may, by notifiable instrument, give

directions to the Defence Capability Assurance Agency about the

performance of its functions.

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

(3) The Defence Capability Assurance Agency must comply with a

direction under subsection (1).

16 Providing reports and advice to project staff and decision-makers

(1) As soon as practicable after preparing a report for a risk assessment

conducted by the Defence Capability Assurance Agency in relation

to a defence materiel program:

(a) the Agency must give a copy of the report to:

(i) the persons within the Defence Department and Defence

Force who are responsible for defining capability

requirements in relation to the program; and

(ii) the persons within the Defence Department and Defence

Force who are responsible for the day-to-day

management of the program; and

(b) the Agency must ensure that a copy of the report is given to

decision-makers for the program within the Defence

Department and the Defence Force.

(2) In performing its function under paragraph 11(1)(c) in relation to a

particular defence materiel program, the Defence Capability

Assurance Agency (or its representative) is to:

Part 2

Defence Capability Assurance Agency

Division 2

Establishment and functions

Section 17

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(a) attend meetings when decision-makers for the program are

considering matters relating to the program that have been

covered in a risk assessment report prepared by the Agency;

and

(b) provide any recommendations or advice relating to capability

assurance at each meeting of decision-makers for the

program at which matters relating to the program, that have

been covered in a risk assessment report prepared by the

Agency, are considered.

17 Reporting to the Defence Minister and National Security

Committee of the Cabinet

(1) The Defence Capability Assurance Agency must, within the period

of 14 days after the end of each month, prepare and give to the

Defence Minister a report that sets out a summary of the risk

assessments completed by the Agency during the month.

(2) The Defence Capability Assurance Agency must make copies of

full reports for each risk assessment available to the Defence

Minister on the Minister's request.

(3) The Secretary of the Defence Department must ensure that, if

submissions to the National Security Committee of the Cabinet

concern matters relating to a defence materiel program that have

been covered in a risk assessment report prepared by the Defence

Capability Assurance Agency, the submissions are accompanied by

a copy of the full report.

18 Reporting to the Committee

The Defence Capability Assurance Agency must, within 30 days

after the end of each quarter, prepare and give to the Committee a

report that sets out a summary of:

(a) the test and evaluation completed by the Agency during the

quarter; and

(b) any risks assessed during the quarter as unacceptable by the

Agency, or any instances during the quarter in which the

Agency has assessed that risk mitigation is highly desirable,

in relation to a defence materiel program; and

Defence Capability Assurance Agency

Part 2

Establishment and functions

Division 2

Section 19

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Defence Department and the Defence Force during the

quarter based on those risk assessments.

19 Industry partner

(1) The Defence Capability Assurance Agency must, on behalf of the

Commonwealth, enter into a written agreement with a person or

entity for the person or entity to do the following, in accordance

with the terms and conditions set out in the agreement:

(a) facilitate the performance of the Defence Capability

Assurance Regulator function, including by maintaining,

developing and regulating workforce and infrastructure

standards as mentioned in subsection 11(2);

(b) facilitate training to assist the Agency's implementation of

the workforce standards mentioned in subsection 11(2);

assist the Agency in the planning, and where necessary, the

conduct or supervision of test and evaluation activities, as

required.

(2) The Defence Capability Assurance Agency must not enter into an

agreement with a person or entity under subsection (1) unless the

Agency is satisfied that the person or entity is a sovereign

Australian defence industry company, as determined in accordance

with relevant policies of the Australian Government.

(3) The Defence Capability Assurance Agency must ensure that an

agreement under this section is in effect at all times on and after

the end of the period of one month beginning on the day the first

appointment of a Director of the Agency is made by the Board

Part 2

Defence Capability Assurance Agency

Division 3

Director of the Defence Capability Assurance Agency

Section 20

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Division 3--Director of the Defence Capability Assurance

Agency

20 Director

There is to be a Director of the Defence Capability Assurance

Agency.

21 Functions of the Director

(1) The Director is responsible for the day-to-day administration of the

Defence Capability Assurance Agency.

(2) The Director has power to do all things necessary or convenient to

be done for or in connection with the performance of the Director's

duties.

(3) The Director is to act in accordance with policies and strategies

determined by the Board.

(4) All acts and things done in the name of, or on behalf of, the

Defence Capability Assurance Agency by the Director, or with the

authority of the Director, are taken to have been done by the

Defence Capability Assurance Agency.

(5) If a function or power of the Defence Capability Assurance

Agency is dependent on the opinion, belief or state of mind of the

Defence Capability Assurance Agency in relation to a matter, the

function or power may be exercised upon the opinion, belief or

state of mind of a person or body acting as mentioned in

subsection (4) in relation to that matter.

22 Director to act in accordance with directions of Board

(1) The Board may give written directions to the Director, not

inconsistent with any direction given to the Defence Capability

Assurance Agency under section 15, about the performance of the

Director's duties.

(2) The Director must comply with a direction under subsection (1).

Defence Capability Assurance Agency

Part 2

Director of the Defence Capability Assurance Agency

Division 3

Section 23

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(3) Subsection (2) does not apply to the extent that the direction relates

to the Director's performance of functions or exercise of powers

under the

Public Service Act 1999

in relation to the Defence

Capability Assurance Agency.

(4) A direction under subsection (1) is not a legislative instrument.

23 Appointment

(1) The Director is to be appointed by the Board by written instrument,

after consultation with the Defence Minister, on a full-time basis.

Note:

The Director may be reappointed: see section 33AA of the

Acts

Interpretation Act 1901

Qualification for appointment

(2) A person must not be appointed as the Director unless the Board is

satisfied that the person has:

(a) appropriate qualifications and experience as both a

practitioner and senior leader in an organisation conducting

developmental test and evaluation, in relation to one or more

domains relevant to defence; and

(b) experience in the field of engineering, or the field of

operations, in relation to one or more domains relevant to

defence.

Period of appointment

(3) The Director holds office for the period specified in the instrument

of appointment. The period must not exceed 5 years.

(4) The Director must not be a Board member.

24 Acting appointment

The Board may, by written instrument and after consultation with

the Defence Minister, appoint a person (other than a Board

member) to act as the Director:

(a) during a vacancy in the office of Director (whether or not an

appointment has previously been made to the office); or

Part 2

Defence Capability Assurance Agency

Division 3

Director of the Defence Capability Assurance Agency

Section 25

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(b) during any period, or during all periods, when the Director:

(i) is absent from duty or from Australia; or

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

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

25 Terms and conditions

The Director holds office on the terms and conditions (if any) in

relation to matters not covered by this Act that are determined by

the Board.

26 Remuneration

(1) The Director 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, the Director is to be

paid the remuneration that is prescribed by the rules.

(2) The Director is to be paid the allowances that are prescribed by the

rules.

(3) This section has effect subject to the

Remuneration Tribunal Act

1973

27 Leave of absence

(1) The Director has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Chair of the Board may grant the Director leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Chair determines.

(3) The Chair of the Board must notify the Defence Minister if the

Chair grants to the Director leave for a period that exceeds one

month.

Defence Capability Assurance Agency

Part 2

Director of the Defence Capability Assurance Agency

Division 3

Section 28

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

28 Other paid work

The Director must not engage in paid work outside the duties of the

Director's office without the Chair of the Board's approval.

29 Resignation

(1) The Director may resign the Director's appointment by giving the

Board a written resignation.

(2) The resignation takes effect on the day it is received by the Board

or, if a later day is specified in the resignation, on that later day.

(3) If the Director resigns under this section, the Chair of the Board

must notify the Defence Minister of the resignation.

30 Termination of appointment

(1) The Board may terminate the appointment of the Director:

(a) for misbehaviour; or

(b) if the Director is unable to perform the duties of the

Director's office because of physical or mental incapacity.

(2) The Board may terminate the appointment of the Director if:

(a) the Director:

(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 the Director's creditors; or

(iv) makes an assignment of the Director's remuneration for

the benefit of the Director's creditors; or

(b) the Director is absent, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months; or

approval, in paid work outside the duties of the Director's

office (see section 28).

Note:

The appointment of the Director may also be terminated under

section 30 of the

Public Governance, Performance and Accountability

Act 2013

(which deals with terminating the appointment of an

Defence Capability Assurance Agency

Part 2

Board of the Defence Capability Assurance Agency

Division 4

Section 31

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 4--Board of the Defence Capability Assurance

Agency

Subdivision A--Establishment and functions of the Board

31 Establishment of the Board

The Board of the Defence Capability Assurance Agency is

established by this section.

32 Functions of the Board

(1) The functions of the Board are:

(a) to decide, within the scope of any directions given to the

Defence Capability Assurance Agency under section 15, the

objectives, strategies and policies to be followed by the

Agency; and

(b) to ensure the proper, efficient and effective performance of

the Agency's functions; and

(2) The Board has the power to do all things necessary or convenient

to be done for or in connection with the performance of its

functions.

Subdivision B--Board members

33 Membership

(1) The Board consists of the following members:

(a) the Director;

(b) up to 6 Board members (including the Chair of the Board and

the Deputy Chair of the Board).

Note:

As a member of the governing body, the Director is a member of the

accountable authority of a Commonwealth entity for the purposes of

the

Public Governance, Performance and Accountability Act 2013

see the definition of

accountable authority

in section 12 of that Act.

Part 2

Defence Capability Assurance Agency

Division 4

Board of the Defence Capability Assurance Agency

Section 34

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(2) The performance of a function or the exercise of a power of the

Board is not affected by a vacancy in the membership of the Board.

34 Appointment

(1) Board members are to be appointed by the Defence Minister by

written instrument, on a part-time basis.

Note:

Board members may be reappointed: see section 33AA of the

Acts

Interpretation Act 1901

(2) A Board member holds office for the period specified in the

instrument of appointment. The period must not exceed 3 years.

(3) The Defence Minister must appoint one Board member to be the

Chair of the Board and another Board member to be the Deputy

Chair of the Board.

(4) A person must not be appointed as a Board member unless the

Defence Minister is satisfied that the person has relevant

qualifications and experience in at least one of the following fields:

(a) engineering, in relation to one or more domains relevant to

defence;

(b) operations, in relation to one or more domains relevant to

defence;

(5) In appointing the Board members, the Defence Minister must:

(a) to the extent practicable, ensure that the Board members are

an appropriate mix of persons with qualifications and

experience referred to in subsection (4); and

(b) ensure that a majority of Board members have qualifications

and relevant experience in the conduct and management of

test and evaluation; and

the recommendation of the Secretary of the Defence

Department and the Chief of the Defence Force, and has

experience in defence operations and a strong understanding

of the needs of end-users of materiel.

Defence Capability Assurance Agency

Part 2

Board of the Defence Capability Assurance Agency

Division 4

Section 35

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

35 Acting appointments

Acting by operation of law

(1) The Deputy Chair of the Board is to act as the Chair of the Board:

(a) during a vacancy in the office of Chair of the Board (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 Board:

(i) is absent from duty; or

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

office.

Note:

For rules that apply to persons acting as the Chair of the Board, see

section 33A of the

Acts Interpretation Act 1901

Acting appointments

(2) The Defence Minister may, by written instrument, appoint a Board

member to act as the Deputy Chair of the Board:

(a) during a vacancy in the office of Deputy Chair of the Board

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the Deputy

Chair of the Board:

(i) is acting as the Chair of the Board; or

(ii) is absent from duty; or

(iii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

(3) The Defence Minister may, by written instrument, appoint a person

to act as a Board member (other than the Chair or Deputy Chair of

the Board):

(a) during a vacancy in the office of a Board member (whether

or not an appointment has previously been made to the

office); or

Part 2

Defence Capability Assurance Agency

Division 4

Board of the Defence Capability Assurance Agency

Section 36

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(b) during any period, or during all periods, when a Board

member:

(i) is acting as the Deputy Chair of the Board; or

(ii) is absent from duty; or

(iii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

Qualifications etc. of acting members

(4) Subsection 34(4) applies to an appointment under this section in

the same way as it applies to an appointment under section 34.

36 Terms and conditions

A Board member holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Defence Minister.

37 Remuneration

(1) A Board member 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, the Board member is

to be paid the remuneration that is prescribed by the rules.

(2) A Board member is to be paid the allowances that are prescribed

by the rules.

(3) This section has effect subject to the

Remuneration Tribunal Act

1973

38 Leave of absence

(1) The Defence Minister may grant leave of absence to the Chair of

the Board on the terms and conditions that the Defence Minister

determines.

Defence Capability Assurance Agency

Part 2

Board of the Defence Capability Assurance Agency

Division 4

Section 39

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(2) The Chair of the Board may grant leave of absence to any other

Board member on the terms and conditions that the Chair

determines.

39 Other paid work

A Board member must not engage in any paid work that, in the

Defence Minister's opinion, conflicts or could conflict with the

proper performance of the member's duties.

40 Resignation

(1) A Board member may resign the Board member's appointment by

giving the Defence Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Defence Minister or, if a later day is specified in the resignation, on

that later day.

41 Termination of appointment

(1) The Defence Minister may terminate the appointment of a Board

member:

(a) for misbehaviour; or

(b) if the Board member is unable to perform the duties of the

member's office because of physical or mental incapacity.

(2) The Defence Minister may terminate the appointment of a Board

member if:

(a) the Board 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 the Board member's creditors; or

(iv) makes an assignment of the Board member's

remuneration for the benefit of the Board member's

creditors; or

(b) the Board member is absent, except on leave of absence,

from 3 consecutive meetings of the Board; or

Part 2

Defence Capability Assurance Agency

Division 4

Board of the Defence Capability Assurance Agency

Section 42

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Minister's opinion, conflicts or could conflict with the proper

performance of the Board member's duties (see section 39).

Note:

The appointment of a Board member may also be terminated under

section 30 of the

Public Governance, Performance and Accountability

Act 2013

(which deals with terminating the appointment of an

accountable authority, or a member of an accountable authority, for

contravening general duties of officials).

Subdivision C--Meetings of the Board

42 Convening meetings

(1) The Board must hold such meetings as are necessary for the

efficient performance of its functions.

(2) The Chair of the Board:

(a) may convene a meeting at any time; and

(b) must convene at least 4 meetings each calendar year; and

written request to do so from another Board member.

43 Presiding at meetings

(1) The Chair of the Board

must preside at all meetings at which the

Chair is present.

(2) If the Chair

of the Board is not present at a meeting, the Deputy

Chair of the Board presides.

(3) If neither the Chair of the Board nor the Deputy Chair of the Board

is present at a meeting, the Board members present must appoint

one of themselves to preside.

44 Quorum

(1) At a meeting of the Board, a quorum is constituted by a majority of

Board members.

(2) However, if:

Defence Capability Assurance Agency

Part 2

Board of the Defence Capability Assurance Agency

Division 4

Section 45

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(a) a Board member

is required by rules made for the purposes

of section 29 of the

Public Governance, Performance and

Accountability Act 2013

not to be present during the

deliberations, or to take part in any decision, of the Board

with respect to a particular matter; and

(b) when the Board member leaves the meeting concerned there

is no longer a quorum present;

the remaining Board members at the meeting constitute a quorum

for the purpose of any deliberation or decision at that meeting with

respect to that matter.

(3) For the purposes of this section,

Board member

includes the

Director.

45 Voting at meetings

(1) A question arising at a meeting of the Board is to be determined by

a majority of the votes of the Board members present and voting.

(2) The person presiding at a meeting of the Board has a deliberative

vote and, if the votes are equal, a casting vote.

(3) For the purposes of this section,

Board member

includes the

Director.

46 Conduct of meetings

The Board may, subject to this Division, regulate proceedings at its

meetings as it considers appropriate.

Note:

Section 33B of the

Acts Interpretation Act 1901

contains further

information about the ways in which Board members may participate

in meetings.

47 Minutes

The Board must keep minutes of its meetings.

48 Decisions without meetings

(1) The Board is taken to have made a decision at a meeting if:

Part 2

Defence Capability Assurance Agency

Division 4

Board of the Defence Capability Assurance Agency

Section 48

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(a) without meeting, a majority of the Board members entitled to

vote on the proposed decision indicate agreement with the

decision; and

(b) that agreement is indicated in accordance with the method

determined by the Board under subsection (2); and

decision, or reasonable efforts were made to inform all the

Board members of the proposed decision.

(2) Subsection (1) applies only if the Board:

(a) has determined that it may make decisions of that kind

without meeting; and

(b) has determined the method by which Board members are to

indicate agreement with proposed decisions.

(3) For the purposes of paragraph (1)(a), a Board member is not

entitled to vote on a proposed decision if the Board member would

not have been entitled to vote on that proposal if the matter had

been considered at a meeting of the Board.

(4) The Board must keep a record of decisions made in accordance

with this section.

(5) For the purposes of this section,

Board member

includes the

Director.

Defence Capability Assurance Agency

Part 2

Staff, contractors and other persons assisting

Division 5

Section 49

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 5--Staff, contractors and other persons assisting

49 Permanent staff

(1) The staff of the Defence Capability Assurance Agency must be

persons:

(a) who are engaged under the

Public Service Act 1999

; or

(b) who are members of the Defence Force posted to the Defence

Capability Assurance Agency.

(2) For the purposes of the

Public Service Act 1999

(a) the Director and the staff referred to in paragraph (1)(a)

together constitute a Statutory Agency; and

(b) the Director is the Head of that Statutory Agency.

50 Contractors

The Defence Capability Assurance Agency may engage persons

under a written agreement to assist the Agency to perform or

exercise the functions or powers of the Agency.

51 Other persons assisting the Defence Capability Assurance Agency

on a shorter-term basis

In addition to the persons mentioned in sections 49 and 50, the

Defence Capability Assurance Agency may be assisted by the

following in the performance or exercise of its functions or powers:

(a) persons engaged under the

Public Service Act 1999

and made

available by the Secretary of the Defence Department;

(b) other members of the Defence Force whose services are

made available for the purpose under an arrangement

between the Chief of the Defence Force and the Defence

Capability Assurance Agency;

Defence Department or Defence Force, and whose services

are made available for the purpose under an arrangement

between the Secretary of the Department, or the Chief of the

Defence Force, and the Defence Capability Assurance

Agency.

Part 2

Defence Capability Assurance Agency

Division 6

Other matters

Section 52

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Division 6--Other matters

52 Requirement to be cleared for security purposes

If a person performing duties for the Defence Capability Assurance

Agency is to deal with security classified information in that

capacity, the person must be cleared for security purposes to a level

that is appropriate having regard to the person's duties.

53 Defence Capability Assurance Agency must comply with defence

regulatory framework

To the extent that the performance of the Defence Capability

Assurance Agency's functions involve the operation or use of

materiel, the Agency must ensure that it (and any person or entity

assisting or engaged by it) complies with any applicable regulatory

requirements of the Defence Force.

54 Delegation by Director

(1) The Director may, in writing, delegate all or any of the Director's

functions or powers under this Act to:

(a) a member of the staff referred to in section 49 who is an SES

employee, or acting SES employee; or

(b) a member of the staff referred to in section 49 who is a

member of the Defence Force holding a rank not lower than:

(i) in the case of the Royal Australian Navy--the rank of

Commodore; or

(ii) in the case of the Australian Army--the rank of

Brigadier; or

(iii) in the case of the Royal Australian Air Force--the rank

of Air Commodore.

Note 1:

SES employee

and

acting SES employee

are defined in section 2B of

the

Acts Interpretation Act 1901

Note 2:

Sections 34AA to 34A of the

Acts Interpretation Act 1901

contain

provisions relating to delegations.

Part 3

Inspector-General of Defence Capability Assurance

Division 1

Introduction

Section 55

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Part 3--Inspector-General of Defence Capability

Assurance

Division 1--Introduction

55 Simplified outline of this Part

There is to be an Inspector-General of Defence Capability

Assurance.

The Inspector-General's functions include inquiring at the request

of the Defence Minister or on the Inspector-General's own

initiative into:

(a) the Defence Department's and the Defence Force's

engagement with the Defence Capability Assurance

Agency, including responses to risks identified by the

Agency; and

(b) the Defence Department's funding of the Defence

Capability Assurance Agency; and

The Inspector-General can engage staff. The staff must have

appropriate security clearances.

Inspector-General of Defence Capability Assurance

Part 3

Establishment and functions

Division 2

Section 56

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 2--Establishment and functions

56 Inspector-General

(1) There is to be an Inspector-General of Defence Capability

Assurance.

(2) For the purposes of the finance law (within the meaning of

the

Public Governance, Performance and Accountability Act

2013

(a) the following group of persons is a listed entity:

(i) the Inspector-General;

(ii) the staff assisting the Inspector-General referred to in

section 71;

(b) the listed entity is to be known as the Office of the

Inspector-General of Defence Capability Assurance; and

listed entity; and

(d) the persons referred to in paragraph (a) are officials of the

listed entity; and

(e) the purposes of the listed entity include the functions of the

Inspector-General referred to in section 57.

Limitation on appointment of Inspector-General

(3) A person must not be appointed as Inspector-General if the person

is, or the person's most recent position was, any of the following:

(a) the Secretary of the Defence Department;

(b) an SES Band 3 position, or an equivalent or higher position,

in the Defence Department;

Department in a role that is primarily responsible for

capability acquisition and sustainment;

(d) the Chief of the Defence Force;

(e) the Vice Chief of the Defence Force;

(f) an officer of the Royal Australian Navy who holds the rank

of Vice-Admiral or a higher rank;

Part 3

Inspector-General of Defence Capability Assurance

Division 2

Establishment and functions

Section 57

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(g) an officer of the Australian Army who holds the rank of

Lieutenant-General or a higher rank;

(h) an officer of the Royal Australian Air Force who holds the

rank of Air Marshal or a higher rank.

57 Functions of the Inspector-General

The Inspector-General has the following functions:

(a) at the request of the Defence Minister or on the

Inspector-General's own initiative, to inquire into any matter

that relates to whether the Defence Department and Defence

Force have done the following:

(i) engaged with the Defence Capability Assurance Agency

in a timely manner as part of each update of any

strategic programs mentioned in

subparagraph 11(1)(c)(ii), and at the commencement of

each defence materiel program or project forming part

of such a program;

(ii) incorporated the Defence Capability Assurance

Agency's risk assessments into those strategic programs

and project planning, management and outcomes;

(iii) transparently ensured the Defence Capability Assurance

Agency's risk assessments are reported to each level of

decision-makers across the capability life cycle relating

to a particular defence materiel program;

(iv) documented actions taken to mitigate risks identified by

the Defence Capability Assurance Agency, or

documented the justification for not accepting the

Agency's recommendations;

(v) given the Defence Capability Assurance Agency an

opportunity to provide advice on the probable

consequences of such actions or justifications in

response to the risks the Agency has identified;

(b) at the request of the Defence Minister or on the

Inspector-General's own initiative, to inquire into any matter

relating to whether the Defence Department and Defence

Force have provided the Defence Capability Assurance

Agency sufficient funding to perform its functions:

Inspector-General of Defence Capability Assurance

Part 3

Establishment and functions

Division 2

Section 57

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(i) whether via a given project or via an agreement to

maintain a minimum level of capability for the Defence

Capability Assurance Agency; and

(ii) taking into account the scope of work for test and

evaluation that has been determined in consultation with

the Defence Department and Defence Force;

Minister or on the Inspector-General's own initiative, to

conduct inquiries into particular defence materiel programs

(whether the relevant program began or ended before or after

the commencement of this section);

(d) any other functions conferred on the Inspector-General by

this Act or any other Act;

(e) any other functions that are prescribed by rules made for the

purposes of this paragraph;

(f) to report, and make recommendations, to the Defence

Minister and the Committee on outcomes in relation to any of

the above functions;

(g) to inform the Defence Department and Defence Force of

outcomes in relation to the above functions;

(h) to do anything incidental to, or conducive to, the

performance of the above functions.

Part 3

Inspector-General of Defence Capability Assurance

Division 3

Inquiries

Section 58

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Division 3--Inquiries

58 Conduct of inquiries

(1) An inquiry by the Inspector-General must be conducted in private

and, subject to this Division, in such manner as the

Inspector-General thinks fit.

(2) The Inspector-General may, for the purposes of this Act, obtain

information from such persons, and make such inquiries, as the

Inspector-General thinks fit.

(3) Subject to subsections (4) and (5), it is not necessary for a person

to be afforded an opportunity to appear before the

Inspector-General or before any other person in connection with an

inquiry by the Inspector-General under this Act.

(4) The Inspector-General must not make a report in relation to an

inquiry conducted under this Act in which the Inspector-General

sets out opinions that are, either expressly or impliedly, critical of a

monitored agency unless the Inspector-General has, before

completing the inquiry, given the head of the agency a reasonable

opportunity to appear before the Inspector-General and to make,

either orally or in writing, submissions in relation to the matters

that are the subject of the inquiry.

(5) If the Inspector-General proposes to set out in a report in relation to

an inquiry conducted under this Act opinions that are, either

expressly or impliedly, critical of a person, the Inspector-General

must, unless doing so would, in the opinion of the

Inspector-General, prejudice security, the defence of Australia or

Australia's relations with other countries, give the person a

reasonable opportunity to appear before the Inspector-General and

to make, either orally or in writing, submissions in relation to the

matters that are the subject of the inquiry.

(6) If the Inspector-General gives, under subsection (4) or (5), the head

of a monitored agency or another person an opportunity to appear

before the Inspector-General, the person may, with the approval of

the Inspector-General, be represented by another person.

Inspector-General of Defence Capability Assurance

Part 3

Inquiries

Division 3

Section 59

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(7) The Inspector-General may, at any time before completing an

inquiry under this Act into a matter relating to a monitored agency,

if it is appropriate to do so, consult with the Defence Minister on

any matter that is relevant to the inquiry.

(8) If

the Inspector-General forms the opinion that there is evidence

that a person who is a member of a monitored agency has been

guilty of a breach of duty or of misconduct and that the evidence is

of sufficient weight to justify the Inspector-General doing so

, the

Inspector-General

must bring the evidence to the notice of:

(a) in a case where the person is a head of a defence agency--the

Defence Minister; or

(b) in any other case--the head of that agency.

59 Power to obtain information and documents

(1) If t

he Inspector-General has reason to believe that a person is

capable of giving information or producing documents relevant to

a matter that is being inquired into

by the Inspector-General under

this Act, the Inspector-General may, by notice in writing given

the person, require the person, at such reasonable place and within

such reasonable period as are specified in the notice:

(a)

to give to the Inspector-General, by writing signed by that

person or, in the case of a body corporate, on behalf of the

body corporate, any such information; or

(b)

to produce to the Inspector-General any such documents.

(2) If

documents are produced to the Inspector-General in accordance

with a requirement under subsection (

1), the Inspector-General:

(a) may take possession of, and may make copies of or take

extracts from, the documents; and

(b) may retain possession of the documents for such period as is

necessary for the purposes of the inquiry to which the

documents relate; and

entitled to inspect any one or more of the documents if they

were not in the possession of the Inspector-General to inspect

at all reasonable times such of the documents as the person

would be so entitled to inspect.

Part 3

Inspector-General of Defence Capability Assurance

Division 3

Inquiries

Section 59

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(3) If

the Inspector-G

eneral has reason to believe that a person is able

to give information relevant to a matter that is being inquired into

by the Inspector-General under this Act, the Inspector-General

may, by notice in writing given to the person, require the person to

atte

nd before the Inspector-General, at such reasonable time and

place as are specified in the notice, to answer questions relevant to

the matter under inquiry.

(4) The Inspector-General may administer an oath or affirmation to a

person required to attend before the Inspector-General under

subsection (3) and may examine the person on oath or affirmation.

(5) The oath or affirmation to be taken or made by a person for the

purposes of this section is an oath or affirmation that the evidence

the person will give will be true.

(6) A person commits an offence if the person:

(a) fails to be sworn or to make an affirmation or to give

information or produce a document when required to do so

under this section; or

(b) after being given a notice under subsection (3), fails to

comply with the notice or to answer a question that the

Inspector-General requires the person to answer.

Penalty:

(a) for an individual--10 penalty units or imprisonment for 6

months, or both; or

(d) for a body corporate--50 penalty units.

(7) Subsection (6) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the

Criminal Code

(8) A person is not liable to any penalty under the provisions of any

law of the Commonwealth or of a Territory by reason only of the

person having given information, produced a document or

answered a question when required to do so under this section.

Inspector-General of Defence Capability Assurance

Part 3

Inquiries

Division 3

Section 60

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

60 Entry to premises occupied by a monitored agency

The Inspector-General may, after notifying the head of a monitored

agency, at any reasonable time, enter any place occupied by the

agency for the purposes of an inquiry under this Act.

61 Security of monitored agency documents

If:

(a) the Inspector-General requires access to documents in the

possession of a monitored agency for the purposes of an

inquiry by the Inspector-General under this Act; and

(b) those documents have a national security or other protective

security classification, or the head of the monitored agency is

satisfied that they are commercial-in-confidence;

the Inspector-General must, if the Inspector-General intends to

remove those documents from the possession of the agency, make

arrangements with the head of the agency for the protection of

those documents while they remain in the Inspector-General's

possession and for the return of those documents.

62 Reporting of inquiry findings by the Inspector-General

(1) For each inquiry conducted by the Inspector-General under this

Act, the Inspector-General must give a copy of the report made in

relation to the inquiry to each monitored agency as soon as

practicable after completing the inquiry.

(2) If the Inspector-General makes a report in relation to an inquiry

under this Act that sets out opinions that are:

(a) either expressly or impliedly, critical of a monitored agency;

(b) otherwise indicate that the Defence Department or Defence

Force (or both) have not adequately engaged with the

Defence Capability Assurance Agency in the performance of

its functions, or responded to risks identified by the Agency

in a sufficiently transparent way;

the Inspector-General must give a copy of the report to the Defence

Minister as soon as practicable.

Part 3

Inspector-General of Defence Capability Assurance

Division 3

Inquiries

Section 62

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(3) The Inspector-General must give the Defence Minister periodic

summaries of inquiry reports not covered by subsection (2), in a

manner the Inspector-General considers appropriate for the

purposes of informing the Minister of its inquiry activities.

(4) The Inspector-General must, within the period of one month after

the end of each calendar year, give the Committee a report on the

outcomes of inquiries completed by the Inspector-General under

this Act during the year.

Inspector-General of Defence Capability Assurance

Part 3

Administrative provisions relating to the Inspector-General

Division 4

Section 63

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 4--Administrative provisions relating to the

Inspector-General

63 Appointment of the Inspector-General

(1) The Inspector-General of Defence Capability Assurance is to be

appointed by the Governor-General by written instrument, on a

full-time or part-time basis.

(2) A person is not eligible to be appointed to the office of

Inspector-General more than twice.

(3) Before the Prime Minister makes a recommendation to the

Governor-General for the appointment of a person as

Inspector-General, the Prime Minister must consult with the

Leader of the Opposition in the House of Representatives.

(4) The Inspector-General holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

64 Acting appointments

(1) The Defence Minister may, by written instrument, appoint a person

to act as the Inspector-General:

(a) during a vacancy in the office of Inspector-General (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the

Inspector-General:

(i) is absent from duty or from Australia; or

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

office.

Note:

For rules that apply to acting appointments, see sections 33AB

and 33A of the

Acts Interpretation Act 1901

(2) Before the Defence Minister appoints a person to act as the

Inspector-General, the Prime Minister must consult with the

Leader of the Opposition in the House of Representatives about the

appointment.

Part 3

Inspector-General of Defence Capability Assurance

Division 4

Administrative provisions relating to the Inspector-General

Section 65

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

65 Remuneration

(1) The Inspector-General 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, the

Inspector-General is to be paid the remuneration that is prescribed

by the rules.

(2) The Inspector-General is to be paid the allowances that are

prescribed by the rules.

(3) This section has effect subject to the

Remuneration Tribunal Act

1973

66 Leave of absence

(1) If the Inspector-General is appointed on a full-time basis, the

Inspector-General has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) If the Inspector-General is appointed on a full-time basis, the

Defence Minister

may grant the Inspector-General leave of

absence, other than recreation leave, on the terms and conditions as

to remuneration or otherwise that the Defence Minister determines.

(3) If the Inspector-General is appointed on a part-time basis, the

Defence Minister may grant leave of absence to the

Inspector-General on the terms and conditions that the Defence

Minister determines.

67 Other paid work

(1) If the Inspector-General is appointed on a full-time basis, the

Inspector-General must not engage in paid work outside the duties

of the Inspector-General's office without the Defence Minister's

approval.

(2) If the Inspector-General is appointed on a part-time basis, the

Inspector-General must not engage in any paid work that, in the

Defence Minister's opinion, conflicts or could conflict with the

proper performance of the Inspector-General's duties.

Inspector-General of Defence Capability Assurance

Part 3

Administrative provisions relating to the Inspector-General

Division 4

Section 68

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

68 Other terms and conditions

The Inspector-General holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Defence Minister.

69 Resignation

(1) The Inspector-General may resign the Inspector-General's

appointment by giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

70 Termination of appointment

(1) The Governor-General may terminate the appointment of the

Inspector-General:

(a) for misbehaviour; or

(b) if the Inspector-General is unable to perform the duties of the

Inspector-General's office because of physical or mental

incapacity.

(2) The Governor-General may terminate the appointment of the

Inspector-General if:

(a) the Inspector-General:

(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 the Inspector-General's creditors; or

(iv) makes an assignment of the Inspector-General's

remuneration for the benefit of the Inspector-General's

creditors; or

(b) if the Inspector-General is appointed on a full-time basis--

the Inspector-General is absent from duty, except on leave of

absence, for 14 consecutive days or for 28 days in any period

of 12 months; or

Part 3

Inspector-General of Defence Capability Assurance

Division 4

Administrative provisions relating to the Inspector-General

Section 70

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

the Inspector-General is absent from duty, except on leave of

absence, for 7 consecutive days or for 14 days in any period

of 12 months; or

(d) if the Inspector-General is appointed on a full-time basis--

the Inspector-General engages, except with the Defence

Minister's approval, in paid work outside the duties of the

Inspector-General's office (see subsection 67(1)); or

(e) if the Inspector-General is appointed on a part-time basis--

the Inspector-General engages in paid work that, in the

Defence Minister's opinion

conflicts or could conflict with

the proper performance of the Inspector-General's duties (see

subsection 67(2)).

Note:

The appointment of an Inspector-General may also be terminated

under section 30 of the

Public Governance, Performance and

Accountability Act 2013

(which deals with terminating the

appointment of an accountable authority, or a member of an

accountable authority, for contravening general duties of officials).

Inspector-General of Defence Capability Assurance

Part 3

Staff

Division 5

Section 71

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 5--Staff

71 Staff

(1) The staff necessary to assist the Inspector-General are to be

persons who are engaged under the

Public Service Act 1999

(2) For the purposes of the

Public Service Act 1999

(a) the Inspector-General and the APS employees assisting the

Inspector-General together constitute a Statutory Agency;

and

(b) the Inspector-General is the Head of that Statutory Agency.

72 Staff must be cleared for security purposes

Each member of the staff assisting the Inspector-General under

section 71 must be cleared for security purposes to a level that is

appropriate having regard to the information that the member of

staff will deal with in that capacity.

Part 4

Parliamentary Joint Committee on Defence

Division 1

Introduction

Section 73

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Part 4--Parliamentary Joint Committee on

Defence

Division 1--Introduction

73 Simplified outline of this Part

There is to be a Parliamentary Joint Committee on Defence.

The Committee's functions include:

(a) reviewing the administration and expenditure of certain

defence agencies; and

(b) monitoring and reviewing the performance of the

Defence Capability Assurance Agency and the

Inspector-General; and

defence agencies; and

(d) reviewing defence operations; and

(e) reporting the Committee's recommendations to the

Parliament and the Defence Minister.

The Committee may appoint one or more subcommittees to inquire

into and report to the Committee upon such matters as the

Committee directs.

Parliamentary Joint Committee on Defence

Part 4

Establishment and functions of Parliamentary Joint Committee on Defence

Division 2

Section 74

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 2--Establishment and functions of Parliamentary

Joint Committee on Defence

74 Parliamentary Joint Committee on Defence

(1) A Committee to be known as the Parliamentary Joint Committee

on Defence is to be established after:

(a) the commencement of this section; and

(b) the commencement of the first session of each Parliament

after the commencement of this section.

(2) The Committee is to consist of 11 members, 5 of whom must be

Senators and 6 of whom must be members of the House of

Representatives.

(3) A majority of the Committee's members must be Government

members.

75 Functions of the Committee

(1) The Committee has the following functions:

(a) to review the administration and expenditure of defence

agencies, including annual reports prepared in relation to

defence agencies under section 46 of the

Public Governance,

Performance and Accountability Act 2013

;

(b) without limiting paragraph (a):

(i) to monitor and to review the performance by the

Defence Capability Assurance Agency of its functions;

and

(ii) to monitor and to review the performance by the

Inspector-General of its functions; and

(iii) to report to both Houses of the Parliament, with such

comments as it thinks fit, on any matter connected with

the performance of the functions of the Defence

Capability Assurance Agency or the Inspector-General

that the Committee considers should be directed to the

attention of the Parliament;

Part 4

Parliamentary Joint Committee on Defence

Division 2

Establishment and functions of Parliamentary Joint Committee on Defence

Section 76

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

a defence agency referred to the Committee by:

(i) the Defence Minister; or

(ii) a resolution of either House of the Parliament;

(d) to review Defence Force operations, including strategic

assessments and decision-making processes behind those

operations;

(e) to review Defence Department and Defence Force capability

acquisition processes, including strategic assessments and

decision-making processes behind those acquisitions;

(f) to report the Committee's comments and recommendations

to each House of the Parliament and to the Defence Minister;

(g) to do anything incidental to, or conducive to, the

performance of the above functions.

(2) Paragraph (1)(a) does not apply in relation to AGO, ASD or DIO.

Note:

The Parliamentary Joint Committee on Intelligence and Security has a

function of reviewing the administration and expenditure of AGO,

ASD and DIO under paragraph 29(1)(a) of the

Intelligence Services

Act 2001

76 Persons to brief the Committee

For the purpose of performing its functions, the Committee may

request the head, or any relevant member, of a defence agency to

brief the Committee.

77 Annual report

As soon as practicable after each year ending on 30 June, the

Committee must give to the Parliament a report on the activities of

the Committee during the year.

Parliamentary Joint Committee on Defence

Part 4

Procedure

Division 3

Section 78

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 3--Procedure

78 Power to obtain information and documents (other than from

defence agencies)

(1) The Chair of the Committee or another Committee member

authorised by the Committee may give a person written notice

requiring the person to appear before the Committee to give

evidence or to produce documents to the Committee.

(2) The notice must specify the day on which, and the time and place

at which, the person is required to appear or to produce documents.

The day must not be less than 5 days after the day on which the

notice is given to the person.

(3) The notice must also specify the nature of the evidence or

documents to be provided to the Committee, and in the case of

documents, the form in which they are to be provided.

(4) A requirement under this section must not be made of:

(a) the head of a defence agency; or

(b) a relevant member of a defence agency.

(5) A requirement under this section may only be made of a person if

the Committee has reasonable grounds for believing that the person

is capable of giving evidence or producing documents relevant to a

matter that the Committee is reviewing or that has been referred to

the Committee.

(6) The Commonwealth must pay a person who has been given a

notice requiring the person to appear before the Committee such

allowances for the person's travelling and other expenses as are

prescribed by the rules.

79 Provision of information to Committee by defence agencies

(1) The Chair of the Committee or another Committee member

authorised by the Committee may give a written notice to the head

of a defence agency, requiring the head to appear before the

Part 4

Parliamentary Joint Committee on Defence

Division 3

Procedure

Section 80

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Committee to give evidence or to produce documents to the

Committee.

(2) The notice must specify the day on which, and the time and place

at which, the head is required to appear or to produce documents.

The day must not be less than 5 days after the day on which the

notice is given to the head.

(3) The notice must also specify the nature of the evidence or

documents to be provided to the Committee, and in the case of

documents, the form in which they are to be provided.

(4) A requirement under this section may only be made of the person if

the Committee has reasonable grounds for believing that the person

is capable of giving evidence or producing documents relevant to a

matter that has been referred to the Committee.

(5) The evidence is to be given by:

(a) if the head nominates a relevant member of the agency to

give the evidence--the relevant member or both the relevant

member and the head; or

(b) in any other case--the head.

80 Certificates by Defence Minister

(1) If:

(a) a person is about to give or is giving evidence to the

Committee or is about to produce a document to the

Committee (whether or not required to do so under section78

or 79); and

(b) the Defence Minister is of the opinion that, to prevent the

disclosure of operationally sensitive information or

information that would prejudice Australia's national security

or the conduct of Australia's foreign relations:

(i) the person (not being a defence agency head) should not

give evidence before the Committee; or

(ii) the person should not give evidence before the

Committee relating to a particular matter; or

(iii) in a case where a person has commenced to give

evidence before the Committee:

Parliamentary Joint Committee on Defence

Part 4

Procedure

Division 3

Section 80

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(A) the person should not continue to give evidence

before the Committee; or

(B) the person should not give, or continue to give,

evidence relating to a particular matter before

the Committee; or

(iv) the person should not produce documents to the

Committee; or

(v) the person should not produce documents of a particular

kind to the Committee;

the Defence Minister may give to the presiding member of the

Committee a certificate in relation to the matter stating the

Minister's opinion.

(2) The Defence Minister's certificate must also specify:

(a) in a case to which subparagraph (1)(b)(ii) or (v) applies--the

matter in relation to which the Minister is satisfied that the

person should not give, or continue to give, evidence, or

specifying the kind of documents that the Minister is satisfied

the person should not produce, as the case requires; and

(b) in a case to which sub-subparagraph (1)(b)(iii)(B) applies--

the matter in relation to which the Minister is satisfied that

the person should not give, or continue to give, evidence; and

which must be within the period of 6 months starting on the

day it is given to the presiding officer of the Committee.

(3) The certificate ceases to have effect on the day specified in the

certificate for the purposes of paragraph (2)(c).

(4) The Defence Minister must give a copy of a certificate under

subsection (1) to the President of the Senate, to the Speaker of the

House of Representatives and to the person required to give

evidence or produce documents.

(5) A decision of the Defence Minister under subsection (1) must not

be questioned in any court or tribunal.

(6) Where the Defence Minister gives a certificate under

subsection (1) in relation to a person and that certificate is in effect:

Part 4

Parliamentary Joint Committee on Defence

Division 3

Procedure

Section 81

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(a) if the certificate states that the person should not give, or

continue to give, evidence before the Committee--the

Committee must not receive, or continue to receive, as the

case may be, evidence from the person; or

(b) if the certificate states that the person should not give, or

continue to give, evidence before the Committee relating to a

particular matter--the Committee must not receive, or

continue to receive, as the case may be, evidence from the

person relating to that matter; or

documents, or documents of a particular kind, to the

Committee--the Committee must not receive documents, or

documents of that kind, as the case may be, from the person.

81 Evidence

(1) The Committee may take evidence on oath or affirmation.

(2) The Committee member presiding may administer an oath or

affirmation to a witness appearing before the Committee.

(3) The oath or affirmation is an oath or affirmation that the evidence

the person will give will be true.

(4) To avoid doubt, the Committee is not to be taken to be an

Australian court for the purposes of the

Evidence Act 1995

82 Publication of evidence or contents of documents

(1) Subject to this section, the Committee may disclose or publish, or

authorise the disclosure or publication of:

(a) any evidence taken by the Committee; or

(b) the contents of any document produced to the Committee.

(2) If the evidence is taken, or the document is produced, in a review

conducted in private, the Committee must not disclose or publish,

or authorise the disclosure or publication of the evidence or the

contents of the document without the written authority of:

Parliamentary Joint Committee on Defence

Part 4

Procedure

Division 3

Section 83

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(a) if the person who gave the evidence or produced the

document is a relevant member of a defence agency--the

head of the agency; or

(b) in any other case--the person who gave the evidence or

produced the document.

(3) Subsection (2) does not apply:

(a) if the evidence, or the contents of the document, have already

been lawfully disclosed or published; or

(b) in relation to a matter of which the Committee has become

aware otherwise than because of the giving of any evidence

before, or the production of any document to, the Committee.

(4) The Committee must not disclose or publish, or authorise the

disclosure or publication of, the evidence, or the contents of the

document, if the disclosure or publication would disclose a matter

that the Committee is not, under section 83, permitted to disclose

in a report to a House of the Parliament.

(5) The Committee may obtain the advice of the Defence Minister as

to whether the disclosure or publication might disclose a matter of

that kind.

(6) This section has effect despite section 2 of the

Parliamentary

Papers Act 1908

(7) If the evidence, or the contents of the document, are disclosed or

published under this section, section 4 of the

Parliamentary Papers

Act 1908

applies to the disclosure or publication as if it were a

publication under an authority given under section 2 of that Act.

83 Restrictions on disclosure to Parliament

(1) The Committee must not disclose in a report to a House of the

Parliament:

(a) the identity of a person who is covered by a determination

made under subsection (2); or

(b) any information from which the identity of a person who is

covered by a determination made under subsection (2) could

reasonably be inferred; or

Part 4

Parliamentary Joint Committee on Defence

Division 3

Procedure

Section 84

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

or might prejudice:

(i) Australia's national security or the conduct of

Australia's foreign relations; or

(ii) the performance by a defence agency of its functions.

(2) The head of a defence agency may determine that paragraphs (1)(a)

and (b) apply to the identification of one or more specified persons

or classes of persons, who are or were relevant members of the

agency, and the determination has effect accordingly.

(3) The Committee must obtain the advice of the Defence Minister as

to whether the disclosure of any part of the report would or might

disclose a matter referred to in subsection (1).

(4) The Committee must not present a report of the Committee to a

House of the Parliament if the Defence Minister has advised that

the report or a part of the report would or might disclose such a

matter.

84 Continuance of evidence

(1) If:

(a) any evidence or document about a matter has been taken by

or produced to the Committee as constituted at a time; and

(b) either of the following happens before the Committee reports

on the matter:

(i) the Committee as so constituted ceases to exist;

(ii) the constitution of the Committee changes;

the Committee as constituted at a later time, whether during the

same or another Parliament, may consider the evidence or

document as if the evidence or document had been taken by or

produced to it.

(2) Section 85 applies to each member of the later Committee as if the

evidence or document had been taken or produced to that

Committee.

Parliamentary Joint Committee on Defence

Part 4

Offences

Division 4

Section 85

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 4--Offences

85 Offences relating to disclosing or publishing certain evidence or

documents

(1) A person (including a Committee member) commits an offence if:

(a) the person discloses or publishes evidence taken by, or the

contents of a document produced to, the Committee in a

review conducted in private; and

(b) in the case of disclosure or publication of evidence--the

person giving the evidence clearly communicated to the

Committee that the evidence contains sensitive and security

classified information that must not be disclosed without

authorisation; and

document--markings included in the document clearly

identify that it contains sensitive and security classified

information that must not be disclosed without authorisation;

and

(d) the disclosure or publication is not authorised in writing by:

(i) if the person who gave the evidence or produced the

document is a relevant member of a defence agency--

the head of the defence agency; or

(ii) in any other case--the person who gave the evidence or

produced the document; and

(e) the evidence or document has not already been lawfully

disclosed or published.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) Subsection (1) does not apply to the disclosure or publication by a

person of a matter of which the person has become aware

otherwise than because of the giving of evidence to which

paragraph (1)(b) applies before, or the production of a document to

which paragraph (1)(c) applies to, the Committee.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2) (see subsection 13.3(3) of the

Criminal Code

Part 4

Parliamentary Joint Committee on Defence

Division 4

Offences

Section 86

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(3) Subsection (1) has effect despite section 2 of the

Parliamentary

Papers Act 1908

(4) A reference in this section to evidence includes a reference to a

briefing.

86 Offences relating to giving evidence or producing documents

(1) A person who has been given a notice requiring the person to

appear before the Committee commits an offence if the person:

(a) fails to attend as required by the notice; or

(b) having not been excused or released by the Committee, fails

to attend and report from day to day; or

(d) refuses or fails to answer a question, not being a question

about a matter in respect of which a certificate under 80 is in

effect, that the Committee requires the person to answer.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(2) Subsection (1) applies to a relevant member who is nominated by

the head of a defence agency under subsection 79(5) to appear

before the Committee to give evidence.

(3) Paragraph (1)(d) does not apply if the answer to the question would

tend to incriminate the person.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the

Criminal Code

(4) A person who has been given a notice requiring the person to

produce a document, not being a document in respect of which a

certificate under section 80 is in effect, to the Committee commits

an offence if the person refuses or fails to produce the document.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(5) Subsection (4) does not apply if the producing of the document

would tend to incriminate the person.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (5) (see subsection 13.3(3) of the

Criminal Code

Parliamentary Joint Committee on Defence

Part 4

Offences

Division 4

Section 87

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(6) A person commits an offence if the person:

(a) gives evidence to the Committee; and

(b) does so knowing that the evidence is false or misleading in a

material particular.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

87 Protection of witnesses

(1) A person who causes or threatens to cause any detriment to another

person with the intention that the other person or a third person

will:

(a) not attend as a witness before the Committee; or

(b) give false evidence or a falsified document to the Committee;

commits an offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(2) A person who otherwise improperly influences another person with

the intention that the other person or a third person will:

(a) not attend as a witness before the Committee; or

(b) give false evidence or a falsified document to the Committee;

commits an offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) A person who causes or threatens to cause any detriment to another

person because that other person or a third person appeared before

the Committee or produced a document to the Committee commits

an offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

Part 4

Parliamentary Joint Committee on Defence

Division 4

Offences

Section 88

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

88 Secrecy

(1) A person who is or has been a member, or a member of the staff, of

the Committee commits an offence if the person, directly or

indirectly:

(a) makes a record of, or discloses or communicates to a person,

any information acquired because of holding the office or

employment; or

(b) produces to a person a document provided to the Committee

for the purposes of enabling the Committee to perform its

functions;

and the action of the person is not carried out for the purposes of

enabling the Committee to perform its functions.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) A person who is or has been a member, or a member of the staff, of

the Committee must not be required to:

(a) produce in a court a document of which the person has

custody, or to which the person has access, because of the

person's position as a member, or a member of the staff, of

the Committee; or

(b) disclose or to communicate to a court any information

obtained by the person because of such a position.

(3) In this section:

produce

includes permit access to.

89 Prosecution of offences

A prosecution for an offence against this Division can be instituted

only by the Attorney-General or with the Attorney-General's

consent.

Parliamentary Joint Committee on Defence

Part 4

Administration

Division 5

Section 90

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

Division 5--Administration

90 Appointment of members

(1) The Committee members who are members of the House of

Representatives must be appointed by resolution of the House on

the nomination of the Prime Minister.

(2) Before nominating the Committee members, the Prime Minister

must consult with the Leader of each recognised political party that

is represented in the House and does not form part of the

Government.

(3) The Committee members who are Senators must be appointed by

resolution of the Senate on the nomination of the Leader of the

Government in the Senate.

(4) Before nominating the Committee members, the Leader of the

Government in the Senate must consult with the Leader of each

recognised political party that is represented in the Senate and does

not form part of the Government.

(5) In nominating the Committee members, the Prime Minister and the

Leader of the Government in the Senate must have regard to the

desirability of ensuring that the composition of the Committee

reflects the representation of recognised political parties in the

Parliament.

(6) A person is not eligible for appointment as a Committee member if

the person is:

(a) a Minister; or

(b) the President of the Senate; or

91 Terms of office of Committee members

(1) A Committee member holds office during the pleasure of the

House of the Parliament by which the member was appointed.

(2) A person ceases to hold office as a member of the Committee if:

Part 4

Parliamentary Joint Committee on Defence

Division 5

Administration

Section 92

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

(a) the House of Representatives expires by the passing of time

or is dissolved; or

(b) the person becomes the holder of an office specified in any of

the paragraphs of subsection 90(6); or

Parliament by which the person was appointed; or

(d) the person resigns the person's office as provided by

subsection (3).

(3) A member of the Committee appointed by a House of the

Parliament may resign the member's office by giving the Presiding

Officer of that House a written resignation.

(4) A House of the Parliament may appoint one of its members to fill a

vacancy among the members of the Committee appointed by that

House

92 Chair of the Committee

(1) There must be a Chair of the Committee, who must be a member of

the Government elected by the members of the Committee from

time to time.

(2) The Chair of the Committee holds office during the pleasure of the

Committee.

(3) A person holding office as Chair of the Committee ceases to hold

the office if the person:

(a) ceases to be a member of the Committee; or

(b) resigns the office.

(4) A person holding office as Chair of the Committee may resign the

office by giving a signed notice of resignation to a meeting of the

Committee.

93 Deputy Chair of the Committee

(1) There must be a Deputy Chair of the Committee who must be a

Committee member elected by the members from time to time.

Parliamentary Joint Committee on Defence

Part 4

Administration

Division 5

Section 94

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(2) The Deputy Chair of the Committee holds office during the

pleasure of the Committee.

(3) A person holding office as Deputy Chair of the Committee ceases

to hold office if the person:

(a) the person ceases to be a Committee member; or

(b) the person resigns the office.

(4) A person holding office as Deputy Chair of the Committee may

resign the office by giving a signed notice of resignation to a

meeting of the Committee.

94 Meetings

(1) The Committee may meet at such times and, subject to

subsection (3), at such places in Australia as the Committee

decides by resolution or, subject to a resolution of the Committee,

as the Chair of the Committee decides.

(2) The Committee may meet and transact business even though the

Parliament has been prorogued.

(3) Before the Committee or the Chair of the Committee decides a

place of meeting, the Chair must obtain advice from each of the

heads of defence agencies as to the suitability of the place.

(4) The Chair of the Committee must preside at all meetings of the

Committee at which the Chair is present.

(5) If:

(a) the Chair of the Committee is not present at a meeting of the

Committee; and

(b) either:

(i) the meeting is one at which a question is to be decided

by voting, or could reasonably be expected to be so

decided; or

(ii) throughout a continuous period of more than one month

immediately preceding the day of the meeting, the Chair

was absent from duty or from Australia, or was for any

Part 4

Parliamentary Joint Committee on Defence

Division 5

Administration

Section 95

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

reason unable to perform the duties of the office of the

Chair;

the Committee members present are to appoint a Government

member to preside.

(6) If:

(a) the Chair of the Committee is not present at a meeting of the

Committee; and

(b) the Committee members are not required by subsection (5) to

appoint a Government member to preside;

then:

meeting--the Deputy Chair is to preside; or

(d) if the Deputy Chair is not present at the meeting--the

Committee members present are to appoint a Committee

member to preside.

(7) A Committee member who presides at a meeting of the Committee

under subsection (5) or (6) may exercise, in relation to the meeting

and any matter arising out of the meeting, any of the powers of the

Chair of the Committee.

(8) The Committee must keep minutes of its proceedings.

95 Quorum

(1) At a meeting of the Committee, a quorum is constituted if:

(a) at least 6 Committee members are present; and

(b) subject to subsection (2), a majority of the Committee

members present are Government members.

(2) There may be an equal number of Government members and

non-Government members if the presiding member is a

Government member.

96 Voting at meetings

(1) A question arising at a meeting is to be decided by a majority of

the votes of the Committee members present and voting.

Parliamentary Joint Committee on Defence

Part 4

Administration

Division 5

Section 97

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(2) The Committee member presiding at the meeting has a deliberative

vote.

(3) The Committee member presiding at the meeting has a casting vote

if votes are equal.

97 Proceedings

(1) The proceedings of the Committee are to be conducted in the

manner determined by the Committee.

(2) The Committee must not conduct a review in public without the

approval of the Defence Minister.

(3) At a review conducted in private, the Committee may give

directions as to the persons who may be present. In giving such

directions, the Committee must have regard to the requirements of

security and any other matters the Committee thinks fit.

98 Staff of the Committee and staff of Committee members must be

cleared for security purposes

The following persons must be cleared for security purposes to a

level that is appropriate having regard to the information that the

person will deal with in that capacity:

(a) each member of the staff of the Committee;

(b) at least one member of the staff of each Committee member

employed under the

Members of Parliament (Staff) Act 1984

99 Protection of information and documents

(1) The Committee must make arrangements acceptable to the

Secretary of the Defence Department and the Chief of the Defence

Force for the security of any information held and any records

made by the Committee.

(2) The Committee must ensure that any documents having a national

security classification provided to the Committee are returned as

soon as possible after the Committee members have examined

them.

Part 4

Parliamentary Joint Committee on Defence

Division 6

Subcommittees

Section 100

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Division 6--Subcommittees

100 Subcommittees

(1) The Committee may appoint one or more subcommittees of at least

3 of its members to inquire into and report to the Committee upon

such matters with which the Committee is concerned as the

Committee directs.

(2) A subcommittee must report in writing to the Committee as soon

as practicable on each matter referred to that subcommittee by the

Committee.

(3) A subcommittee may sit at any time, including at a time when the

Committee is sitting.

101 Term of office

(1) A member of a subcommittee holds office during the pleasure of

the Committee.

(2) A member of a subcommittee ceases to hold office if:

(a) the person ceases to be a member of the Committee; or

(b) the person resigns the office.

(3) A member of a subcommittee may resign the member's office by

giving a signed notice of resignation to the Chair of the Committee.

102 Operation of subcommittees

(1) A subcommittee may determine matters relating to the operation of

the subcommittee, except as mentioned in subsection (2).

(2) If the Chair of the Committee gives a direction to a subcommittee

in relation to the operation of the subcommittee, the subcommittee

must operate in accordance with the direction.

103 Application of provisions of Part to subcommittees

(1) Divisions 3 and 4 and sections 97, 98 and 99 apply to a

subcommittee appointed under section 100 as if:

Parliamentary Joint Committee on Defence

Part 4

Subcommittees

Division 6

Section 103

No. , 2023

Defence Capability Assurance and Oversight Bill 2023

(a) references to the Committee included references to the

subcommittee; and

(b) references to the Chair of the Committee included references

to a member of the subcommittee authorised by the

subcommittee for the purpose of the provision concerned.

Part 5

Miscellaneous

Section 104

Defence Capability Assurance and Oversight Bill 2023

No. , 2023

Part 5--Miscellaneous

104 Simplified outline of this Part

This Part deals with miscellaneous matters such as protection from

liability for certain protected persons and the making of rules.

105 Protection from liability

(1) This section applies to the following persons (

protected persons

(a) the Defence Capability Assurance Agency;

(b) the Director;

(d) the Inspector-General;

(e) a person acting under the Inspector-General's authority.

(2) A protected person is not liable to civil proceedings for loss,

damage or injury of any kind suffered by another person as a result

of the performance or exercise, in good faith, of the protected

person's functions, powers or duties under or in relation to this

Act.

106 Rules

(1) The Defence Minister

may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

Commonwealth of Australia Bills

DEFENCE CAPABILITY ASSURANCE AND OVERSIGHT BILL 2023

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