Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN RENEWABLE ENERGY AGENCY (CONSEQUENTIAL
AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Energy,
the Honourable Martin Ferguson AM, MP)
AUSTRALIAN RENEWABLE ENERGY AGENCY (CONSEQUENTIAL
AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2011
GENERAL OUTLINE
The purpose of this Bill is to deal with the transitional and consequential matters
required for the Australian Renewable Energy Agency (ARENA) to take over
responsibility for funding and administration of existing renewable energy and related
technology innovation projects that are administered by the Department of Resources,
Energy and Tourism (RET) and the Australian Solar Institute Limited (ASI Limited).
The Bill determines the arrangements and timings for:
· the transfer of responsibility for existing renewable energy technology
projects from RET (which includes those projects under the oversight of
the Australian Centre for Renewable Energy Board (ACRE Board)) to
ARENA; and
· the transfer of projects, assets, liabilities and staff from the ASI Limited
to either ARENA or the Commonwealth.
This Bill provides for steps preparatory to the deregistration of ASI Limited and
incorporation of its activities into ARENA functions, and for the abolition of the
ACRE Board.
The Bill also provides a mechanism for the appointment of ARENA's Chief
Executive Officer (CEO) before the commencement of the Australian Renewable
Energy Agency Bill 2011 (ARENA Bill), to facilitate timely establishment of the
ARENA CEO.
The Bill sets out consequential amendments arising from the establishment of
ARENA including:
· the repeal of the Australian Centre for Renewable Energy Act 2010; and
· amendment of the Clean Energy Regulator Act 2011 (once enacted) to
allow the Clean Energy Regulator to disclose protected information to
ARENA under conditions determined by the Clean Energy Regulator,
where this information will be of assistance to ARENA in the exercise of
its powers or the performance of its functions.
The Bill has been developed in conjunction with the ARENA Bill.
FINANCIAL IMPACT STATEMENT
Neutral impact on the Australian Government budget.
1
ABBREVIATIONS
ACRE Act Australian Centre for Renewable Energy Act 2010
ACRE Board Australian Centre for Renewable Energy Board,
established by the ACRE Act
ARENA Australian Renewable Energy Agency
ARENA Bill Australian Renewable Energy Agency Bill 2011
ASI Limited Australian Solar Institute Limited (ACN 138 300
688)
CAC Act Commonwealth Authorities and Companies Act
1997
LI Act Legislative Instruments Act 2003
RET Department of Resources, Energy and Tourism
2
NOTES ON CLAUSES
Clause 1: Short title
Clause 1 would provide that the Bill, when enacted, may be cited as the Australian
Renewable Energy Agency (Consequential Amendments and Transitional Provisions)
Act 2011.
Clause 2: Commencement
Sub-clause 2(1) would provide that each provision of the Bill specified in column 1 of
the table commences, or is taken to have commenced, in accordance with column 2 of
the table.
Item 1 of the table would provide that clauses 1 to 3 of the Bill (which would provide
for the short title and commencement of the provisions of the Bill, and outline the
effect of the Schedules to the Bill), and anything in the Bill not covered elsewhere in
the table, commence on the day the Bill receives the Royal Assent.
Item 2 of the table would provide that Part 1 of Schedule 1 to the Bill (which would
repeal the ACRE Act) commences at the same time as the ARENA Bill. The ARENA
Bill is expressed to commence on 1 July 2012.
Item 3 of the table would provide that Part 2 of Schedule 1 to the Bill commences on
the later of the commencement of the Clean Energy Regulator Act 2011 and the
commencement of the ARENA Bill.
Item 4 of the table would provides that Schedule 2 to the Bill commences on the later
of the day on which the Bill receives the Royal Assent and the day on which the
ARENA Bill receives the Royal Assent.
Sub-clause 2(2) would provide that, when enacted, any information in column 3 of the
table does not form part of the Act. Information may be inserted in column 3, or
information in that column may be edited, in any published version of the Act.
Clause 3: Schedule(s)
Clause 3 is intended to outline the effect of the Schedules to the Bill. Each Schedule
would amend or repeal the Act(s) specified in that Schedule as provided by the items
of the Schedule. Any other item in a Schedule has effect according to its terms.
Schedule 1--Repeal and consequential amendments
Part 1--Repeal of the Australian Centre for Renewable Energy Act 2010
Australian Centre for Renewable Energy Act 2010
Item 1: The whole of the Act
3
This item would repeal the ACRE Act, which would have the effect of abolishing the
ACRE Board.
Part 2--Consequential amendments
Clean Energy Regulator Act 2011
Item 2: After paragraph 49(1)(u)
This item would add ARENA to the list of bodies with which the Clean Energy
Regulator may share protected information, in accordance with Part 3 of the Clean
Energy Regulator Act 2011.
Schedule 2--Transitional provisions
Part 1--Preliminary
Item 1: Definitions
This item defines key terms used in the Schedule 2 to the Bill. Some of the more
significant definitions are discussed below.
The term `financial assistance' is defined to mean grants or any other kind of financial
assistance. This is broader than the definition of `financial assistance' in the ARENA
Bill, because Schedule 2 of the Australian Renewable Energy Agency (Consequential
Amendments And Transitional Provisions) Bill 2011 would provide for ARENA to
take over the administration of existing funding agreements of the Commonwealth
and ASI Limited, which may provide for financial assistance other than grants.
The term `first transition time' is defined to mean the commencement of the ARENA
Bill. The ARENA Bill is expressed to commence on 1 July 2012, and this is the date
when ARENA would be established.
The term `second transition time' is defined to mean the start of 1 January 2013 or, if
the Minister, by legislative instrument, determines an earlier day, the start of the
earlier day. This is the time at which the assets and liabilities of ASI Limited would
be transferred to the Commonwealth and ARENA (as relevant).
Part 2--Transfer of assets and liabilities
Division 1--Transfer from the Commonwealth to ARENA
Item 2: The transferred Commonwealth funding agreements
This item identifies existing agreements of the Commonwealth, the administration of
which would be taken over by ARENA. The agreements in question provide for
financial assistance, and are generally identified by reference to the Commonwealth
program from which the relevant funding is drawn. There is also provision for the
Minister, by legislative instrument, to specify additional programs in relation to which
agreements would be transferred to ARENA, or additional agreements that would be
4
transferred to ARENA. This will enable agreements entered into between the time of
introduction of the legislation and the first transition time to be transferred to
ARENA. Such agreements may relate, for example, to the Australian Biofuels
Research Institute initiative.
Item 3: Assets and liabilities under transferred Commonwealth funding
agreements: transfer to ARENA
This item would provide that, at the first transition time, the assets and liabilities of
the Commonwealth under the transferred Commonwealth funding agreements (that is,
the agreements identified in item 2) cease to be assets and liabilities of the
Commonwealth and become assets and liabilities of ARENA.
A key purpose of this provision is to transfer to ARENA the obligations of the
Commonwealth to provide financial assistance under the agreements in question.
Thus, from the first transition time, it would be ARENA that is responsible for
providing the assistance, rather than the Commonwealth. The funding required to
meet this responsibility would be provided to ARENA under Part 5 of the ARENA
Bill.
Sub-item 3(2) would provide, for the avoidance of doubt, that ARENA's money can
be used to provide the financial assistance under the transferred Commonwealth
funding agreements.
It is possible that minor changes would need to be made to the transferred
Commonwealth funding agreements, such as to update the parties' contact details.
These changes would be made administratively after the first transition time.
Item 4: ARENA's functions include administering transferred Commonwealth
funding agreements
This item would make clear that ARENA's functions under the ARENA Bill include
administering the transferred Commonwealth funding agreements.
Item 5: Dealing with undecided applications
This item would provide that, from the first transition time, the Commonwealth is not
required to take any further action in relation to any undecided applications for
financial assistance under a Commonwealth program the funding for which is
transferred to ARENA. The item would also make clear that ARENA may, but is not
required to, treat such applications as if they had been made to ARENA.
Item 6: MOU with Geoscience Australia
This item would make special provision for an existing funding agreement between
RET and Geoscience Australia. This agreement is in the form of a memorandum of
understanding (MOU), which is not legally binding as it is made between different
parts of the Commonwealth. The MOU relates to a project which is funded by RET
and run by Geoscience Australia. The project involves the establishment of solar
resource monitoring ground stations and the collation of solar mapping and site
5
selection data. Funding for the project is drawn from the Solar Flagships Program,
which is one of the Commonwealth programs the funding for which would be
transferred to ARENA.
The purpose of this item would be to convert the MOU into a legally binding
agreement between ARENA and Geoscience Australia, thus making ARENA
responsible for providing financial assistance for the project, in place of the
Commonwealth.
Subitem (8) would give the Minister the power to modify the MOU, by determination
in writing, at any time before 1 August 2012. This power has been included to ensure
that it is possible to make amendments to the MOU to ensure that it operates
effectively as a contract between ARENA and Geoscience Australia.
Sub-item (9) would make clear that a determination under sub-item (8) is not a
legislative instrument. This provision is included to assist readers. Such a
determination would not be a legislative instrument as it is not legislative in character
and therefore not within the meaning of section 5 of the LI Act.
Division 2--Transfer from ASI Limited to ARENA and the Commonwealth
Item 7: The transferred ASI Limited funding agreements
This item identifies existing agreements of ASI Limited the administration of which
would be taken over by ARENA. The agreements in question provide for financial
assistance under a program or initiative administered by ASI Limited.
Item 8: Assets and liabilities under transferred ASI Limited funding agreements:
transfer to ARENA
This item would provide that, at the second transition time, the assets and liabilities of
ASI Limited under the transferred ASI Limited funding agreements (that is, the
agreements identified in item 7) cease to be assets and liabilities of ASI Limited and
become assets and liabilities of ARENA.
A key purpose of this provision is to transfer to ARENA the obligations of ASI
Limited to provide financial assistance under the agreements in question. Thus, from
the second transition time, it would be ARENA that is responsible for providing the
assistance, rather than ASI Limited. The funding required to meet this responsibility
would be provided to ARENA under Part 5 of the ARENA Bill.
Item 9: ARENA's functions include administering transferred ASI Limited
funding agreements
This item would make clear that ARENA's functions include administering the
transferred ASI Limited funding agreements.
Item 10: Other ASI Limited assets and liabilities: transfer to Commonwealth
6
This item would provide that, at the second transition time, assets and liabilities of
ASI Limited, other than those under the transferred ASI Limited funding agreements,
cease to be assets and liabilities of ASI Limited and become assets and liabilities of
the Commonwealth.
The purpose of this provision is to deal with assets and liabilities of ASI Limited that
are not transferred to ARENA by item 8 by transferring them to the Commonwealth.
The transfer of all assets and liabilities away from ASI Limited under this item and
item 8 would be one of the steps preparatory to deregistering the company in
accordance with s 601AA of the Corporations Act 2001.
The Bill does not expressly terminate the head funding agreement between the
Commonwealth and ASI Limited. The effect of this Bill is that any rights ASI
Limited has under the agreement against the Commonwealth will be terminated.
Item 11: Dealing with undecided applications
This item would provide that, from the second transition time, ASI Limited is not
required to take any further action in relation to any undecided applications for
financial assistance. The item would also make clear that ARENA may, but is not
required to, treat such applications as if they had been made to ARENA.
Division 3--General provisions
Item 12: Certificates relating to vesting of land
This item would provide a process for registration of the vesting of land, for use in the
event that any land (including any interest in land) vests in the Commonwealth under
Part 2 of Schedule 2 of the Bill.
Sub-item 12(3) would make clear that a certificate under sub-item 12(1) is not a
legislative instrument. This provision is included to assist readers. Such a certificate
would not be a legislative instrument as it is not legislative in character and therefore
not within the meaning of section 5 of the LI Act.
Item 13: Certificates for vesting of assets other than land
This item would provide a process for registration of the vesting of an asset other than
land, in the event that any such asset (the vesting of which is suitable for registration)
vests in the Commonwealth under Part 2 of Schedule 2 to the Bill.
Sub-item 13(3) would make clear that a certificate under sub-item 13(1) is not a
legislative instrument. This provision is included to assist readers. Such a certificate
would not be a legislative instrument as it is not legislative in character and therefore
not within the meaning of section 5 of the LI Act.
Item 14: Exemption from stamp duty and other State or Territory taxes
This item is needed to ensure that State and Territory taxes such as stamp duty do not
apply to the transfers of assets and liabilities that Schedule 2 to the Bill would effect.
7
Sub-item 14(1) would provide that no stamp duty or other tax is payable under the
law of a State or Territory in respect of an exempt matter or anything connected with
an exempt matter. The term `exempt matter' is defined in sub-item 14(2) to mean the
vesting of an asset or liability under item 3, 8 or 10, or the operation of Schedule 2
(including regulations made for the purpose of the Schedule) in any other respect.
Under sub-item 14(3), the Minister would have the power to certify in writing that a
specified matter is an exempt matter, or that a specified thing was connected with a
specified exempt matter.
Sub-item 14(4) would make clear that a certificate under sub-item 14(3) is not a
legislative instrument. This provision is included to assist readers. Such a certificate
would not be a legislative instrument as it is not legislative in character and therefore
not within the meaning of section 5 of the LI Act.
Item 15: Certificates taken to be authentic
This item would provide that a document that appears to be a certificate made under
item 12, 13 or 14 is taken to be such a certificate and is taken to have been properly
given, unless the contrary is established.
Part 3--Office holders and staff
Division 1--ACRE Board
Item 16: No transfer of appointment of ACRE Board members
This item would provide that nothing in Schedule 2 to the Bill will cause the
appointment of a member of the ACRE Board to have effect as if it were an
appointment of the person in relation to ARENA.
Board members of ARENA will be new appointments made in accordance with the
ARENA Bill. This item would make clear, for example, that item 20 does not have
the effect of requiring a reference in an instrument relating to the appointment of a
member of the ACRE Board to be read as a reference that relates to ARENA.
Division 2--Office holders and staff of ASI Limited
Item 17: Termination of officer holders of ASI Limited
Sub-item 17(1) would allow the Minister, before the second transition time, to
terminate the appointment of any director of ASI Limited and terminate any
agreement or other instrument relating to that appointment. The Minister would also
be able to make provision in relation to the termination of an appointment, or in
relation to the termination of an agreement or other instrument relating to that
appointment.
Sub-item 17(3) makes clear that an instrument made under sub-item 17(1) is not a
legislative instrument. This provision is included to assist readers. An instrument of
8
termination of appointment made under this item would not be a legislative
instrument as it is not legislative in character and therefore not within the meaning of
s 5 of the LI Act.
Sub-item 17(2) provides that an instrument made under sub-item 17(1) takes effect
immediately before the second transition time.
Item 18: No transfer of appointment, engagement or employment of ASI Limited
office holders or staff
This item would provide that nothing in Schedule 2 to the Bill will cause the
appointment, engagement or employment of an ASI Limited officer to have effect as
if it were an appointment, engagement or employment of the person in relation to
ARENA or the Commonwealth. `ASI Limited officer' is defined in sub-item 18(2) to
mean a director or employee of ASI Limited.
This item would make clear, for example, that item 23 does not have the effect of
requiring a reference in an instrument relating to the appointment of a director of ASI
Limited, or an instrument relating to the engagement or employment of an employee
or ASI Limited, to be read as a reference that relates to ARENA.
The note to sub-item 18(1) would indicate that employees of ASI Limited may
become engaged as Australian Public Service (APS) employees in RET by a
determination of the Public Service Commissioner under section 72 of the Public
Service Act 1999. Section 72 of the Public Service Act 1999 provides for the Public
Service Commissioner to, among other things, engage persons, including non-APS
employees, as APS employees in a specified Agency. In this case, the specified
Agency would be RET.
Item 62 of the ARENA Bill would provide for the Secretary of RET to make staff
available to ARENA. It is intended that ASI Limited employees who are engaged in
RET in these circumstances would be among the staff made available to ARENA
under that item.
Sub-item 18(4) would provide that, to avoid doubt, if a person ceases to be an
employee of ASI Limited and becomes an APS employee because of a determination
by the Public Service Commissioner under section 72 of the Public Service Act 1999,
the person is not entitled to receive any payment or other benefit merely because he or
she ceased to be an employee of ASI Limited.
It is intended that the employment of these people would be continuous, regardless of
the fact that they move from being an employee of ASI Limited to being an APS
employee in RET. As the employees' employment would be continuous, payments
such as redundancy payments would not be appropriate. The continuity of the
employees' employment would be achieved by sub-item 19(3).
Item 19: Accrued entitlements etc. of ASI Limited employees who become APS
employees
9
This item would apply to people employed by ASI Limited immediately before the
second transition time who become APS employees in RET by virtue of a
determination made by the Public Service Commissioner under section 72 of the
Public Service Act 1999.
Sub-item 19(2) would provide for an ASI employee to carry over an entitlement to
benefits that the employee accrued while employed by ASI Limited. For example,
rather than having accrued annual leave paid out under s 90(2) of the Fair Work Act
2009 when their employment with ASI Limited ends, this sub-item would mean that
staff could retain those entitlements when they move to the APS and use them when
required.
While this sub-item would operate to carry an ASI employee's accrued entitlements
over to their APS employment, the employee's terms and conditions of employment
with ASI Limited would not, by virtue of this sub-item, carry over to their APS
employment. When ASI Limited staff become APS employees they will, for example,
be covered by any applicable industrial instrument providing terms and conditions for
employees in their classification in RET.
Sub-item 19(3) would have the effect that an employee's service as an APS employee
should be considered continuous with the service the employee accrued with ASI
Limited. An employee's period of `service' will be relevant to, for example, their
eligibility for entitlements under the Fair Work Act 2009 or under an enterprise
agreement made under that Act.
Where a determination was made by the Public Service Commissioner under
section 72 of the Public Service Act 1999, ASI Limited staff would become APS
employees in RET, and would be covered by the Long Service Leave (Commonwealth
Employees) Act 1976 (LSL Act). Sub-item 19(4) would provide that each employee's
period of service with ASI Limited is to be considered service as an APS employee.
The effect of this would be that the employee's service with ASI Limited would be
taken to be `Government Service' for the purposes of eligibility for long service leave
entitlements under the LSL Act.
When ASI Limited staff become APS employees they will also become covered by
the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act). Sub-item 19(5)
would provide that each employee's period of service with ASI Limited is to be
considered service as an APS employee. The effect of this would be that the employee
would be taken to have been a person to and in relation to whom the ML Act applies
while they were an employee of ASI Limited. This is relevant for the purposes of
eligibility for paid maternity leave under the ML Act.
Part 4--Instruments, legal proceedings and records
Division 1--The Commonwealth and the ACRE Board
Item 20: References in instruments to the Commonwealth or the ACRE Board
10
This item would provide that, after the first transition time, references in certain
instruments to the Commonwealth or the ACRE Board have effect as if they were
references to ARENA, and references to the ACRE Board in certain other instruments
have effect as if they were references to the Commonwealth.
This item complements the repeal of the ACRE Act by item 1 of Schedule 1 to the
Bill, and the transfer to ARENA of assets and liabilities under the transferred
Commonwealth funding agreements, by item 3 of Schedule 2 to the Bill.
Among other things, this item would ensure that, after the first transition time,
references to the Commonwealth in the transferred Commonwealth funding
agreements have effect as if they were references to ARENA.
Item 21: Legal proceedings of the Commonwealth or the ACRE Board
This item would provide that, after the first transition time, ARENA or the
Commonwealth is taken to be substituted as a party to any pending legal proceedings
to which the Commonwealth or the ACRE Board was a party.
Like item 20, this item complements the repeal of the ACRE Act by item 1 of
Schedule 1 to the Bill, and the transfer to ARENA of assets and liabilities under the
transferred Commonwealth funding agreements, by item 3 of Schedule 2 to the Bill.
The legal proceedings to which ARENA would be taken to be substituted as a party
include any proceedings to which the Commonwealth was a party immediately before
the first transition time, which relate to the transferred Commonwealth funding
agreements.
Item 22: Transfer of custody of records or documents of the Commonwealth or
the ACRE Board
This item deals with the transfer of certain records or documents into the custody of
ARENA or the Commonwealth, after the first transition time.
Among other things, this item would provide for the transfer of custody of the
transferred Commonwealth funding agreements to ARENA, along with any other
records or documents that relate to assets or liabilities that become assets or liabilities
of ARENA as a result of the operation of item 3.
Sub-item (4) deals with the application of s 20 of the CAC Act to accounting records
which are transferred into the custody of ARENA under this item. Section 20 of the
CAC Act imposes certain record-keeping requirements on Commonwealth authorities
generally, including a requirement to retain their accounting records for at least 7
years.
Division 2--ASI Limited
Item 23: References in instruments to ASI Limited
11
This item would provide that, after the second transition time, references in certain
instruments to ASI Limited have effect as if they were references to ARENA or the
Commonwealth.
This item complements the transfer to ARENA and the Commonwealth (as relevant)
of the assets and liabilities of ASI Limited, by items 8 and 10.
Among other things, this item would ensure that, after the second transition time,
references to ASI Limited in the transferred ASI Limited funding agreements have
effect as if they were references to ARENA.
Item 24: Legal proceedings of ASI Limited
This item would provide that, after the second transition time, ARENA or the
Commonwealth is taken to be substituted as a party to any pending legal proceedings
to which ASI Limited was a party.
Like item 23, this item complements the transfer to ARENA and the Commonwealth
(as relevant) of the assets and liabilities of ASI Limited, by items 8 and 10.
The legal proceedings to which ARENA would be taken to be substituted as a party
include any proceedings to which ASI Limited was a party immediately before the
second transition time, which relate to the transferred ASI Limited funding
agreements.
Item 25: Transfer of custody of records or documents of ASI Limited
This item deals with the transfer of certain records or documents into the custody of
ARENA or the Commonwealth, after the second transition time.
Among other things, this item would provide for the transfer of custody of the
transferred ASI Limited funding agreements to ARENA, along with any other records
or documents that relate to assets or liabilities that become assets or liabilities of
ARENA as a result of the operation of item 8.
Sub-item (4) deals with the application of s 20 of the CAC Act to accounting records
which are transferred into the custody of ARENA under this item. Section 20 of the
CAC Act imposes certain record-keeping requirements on Commonwealth authorities
generally, including a requirement to retain their accounting records for at least 7
years.
Part 5--Annual reports, returns etc.
Item 26: Final annual report on ACRE Board
This item would require the ARENA Board to prepare and give to the Minister the
final annual report of the ACRE Board, following the abolition of the ACRE Board
on 1 July 2012. The Secretary of RET would be required to provide reasonable
assistance to the ARENA Board for this purpose.
12
Item 27: Reports, returns etc. of ASI Limited
This item would require the ARENA Board to prepare and lodge any report, return or
other document that is required to be prepared and lodged immediately before the
second transition time, or after the second transition time, by ASI Limited or by a
director, officer or staff member or former director, officer or staff member of ASI
Limited. The Secretary of RET would be required to provide reasonable assistance to
the ARENA Board for this purpose.
Item 28: ARENA's annual report to include particulars of assistance provided
under the transferred funding agreements
This item relates to the content of ARENA's annual reports. In addition to the matters
set out in clause 70 of the ARENA Bill and in Schedule 1 to the CAC Act, each
annual report would have to include details about the financial assistance provided by
ARENA under the transferred Commonwealth funding agreements and the transferred
ASI Limited funding agreements.
Part 6--Appointment of first CEO of ARENA
Item 29: Appointment of first CEO of ARENA
Clause 52 of the ARENA Bill would provide that the CEO of ARENA is to be
appointed by the Minister on the recommendation of the ARENA Board. However,
the ARENA Board would not be capable of making such a recommendation until
their appointments take effect on commencement of the ARENA Bill (1 July 2012).
ARENA would be established on the same day.
This would mean that there is a gap between the establishment of ARENA and the
appointment of its CEO. Item 29 is intended to close this gap by enabling the Minister
to appoint the first CEO of ARENA early, so that the appointment can take effect on
the day when ARENA is established.
Sub-item 29(1) would provide that this item applies if the Minister appoints persons
to be members of the ARENA Board pursuant to section 4 of the Acts Interpretation
Act 1901 and a majority of those persons and the Secretary make a recommendation
to the Minister that a particular person (the recommended candidate) be appointed as
the CEO of ARENA.
Section 4 of the Acts Interpretation Act 1901 provides for appointments or
instruments under an Act to be made in advance of the Act coming into force so that
they can take effect as soon as the Act comes into force. Therefore, the Minister
would be able to appoint persons as members of the ARENA Board before the
ARENA Bill comes into force. It will be these appointees who will make a
recommendation to the Minister about the appointment of the CEO.
Sub-item 29(2) would provide for the Minister to appoint the recommended candidate
as the CEO of ARENA before the ARENA Bill commences. This appointment could
13
be made as if the recommendation had been made by the ARENA Board, even though
the appointments to the Board would not yet have taken effect.
Sub-item 29(3) would permit the Minister to make a determination of the terms and
conditions in relation to the appointment of the CEO as if clause 60 of the ARENA
Bill had commenced. That clause would provide for the Minister to determine the
terms and conditions on which CEO is to hold office, where they are not otherwise
covered by the ARENA Bill.
Sub-item 29(4) would provide for the first CEO's appointment to take effect at the
time the ARENA Bill commences.
Part 7--Other transitional matters
Item 30: Director's obligations--ASI Limited's books
This item deals with the application of s 601AD(5) of the Corporations Act 2001 in
relation to ASI Limited's books (within the meaning that Act), after the second
transition time. Section 601AD(5) provides that the directors of a company
immediately before its deregistration must keep the company's books for 3 years after
the deregistration.
This item would relieve ASI Limited's directors of the obligation imposed by
s 601AD(5), and instead impose the obligation on ARENA, to the extent that ASI
Limited's books are transferred into ARENA's custody under item 25, and on the
Commonwealth, to the extent that ASI Limited's books are transferred into the
Commonwealth's custody under item 25.
Item 31: Compensation for acquisition of property
This item is intended to ensure that any acquisition of property that may result from
the operation of Schedule 2 to the Bill would be in accordance with s 51(xxxi) of the
Constitution, which requires that the acquisition of property under a law of the
Commonwealth be on just terms.
It is considered that the operation of other provisions in Schedule 2 to the Bill is most
unlikely to result in the acquisition of property otherwise than on just terms. This item
has been included as a precautionary measure only, to deal with the unlikely
possibility that it may do so, and thereby ensure the validity of the provisions
concerned. If the operation of other provisions in Schedule 2 would result in an
acquisition of property otherwise than on just terms, this item would require the
Commonwealth to pay a reasonable amount of compensation to the person whose
property was acquired.
Item 32: Delegation by Minister
This item would provide for the Minister to delegate in writing his or her functions or
powers under Schedule 2 to the Secretary of RET, or a Senior Executive Service
employee or acting Senior Executive Service employee in RET.
14
However, the Minister will not be able to delegate his or her functions or powers
under:
· sub-item 1(2) (the power to determine a day as the `second transition time');
· sub-item 2(2) (powers to specify additional programs in relation to which agreements
would be transferred to ARENA, and to specify additional agreements that would be
transferred to ARENA);
· sub-item 17(1) (powers relating to terminating the appointment of, or any agreement
or other instrument relating to the appointment of, any director of ASI Limited); and
· sub-items 29(2) and (3) (powers relating to the appointment of the first CEO of
ARENA).
Sub-item 32(3) would provide that a delegate under this item must, in exercising the
delegated powers or functions, comply with any directions of the Minister.
Item 33: Delegation by ARENA and ARENA Board
This item would have the effect that any function or power of ARENA or the Board
under Schedule 2 may be delegated to a member of the Board or the CEO in the same
way as ARENA or the Board may delegate powers or functions to those persons
under the ARENA Bill (see clauses 71 and 72 of the ARENA Bill).
For example, the delegate must comply with any directions of ARENA or the Board
(as applicable) when exercising any power or performing any function under a
delegation (see sub-clauses 71(2) and 72(2)).
This item would also have the effect that any function or power that is delegated by
ARENA or the Board to the CEO under this item may then be subdelegated by the
CEO to the CFO, or to a substantive or acting SES employee, or a substantive or
acting Executive Level 2 employee (or equivalent) in RET (see sub-clause 73(1) of
the ARENA Bill).
The subdelegate would be required to comply with any directions of the CEO when
exercising any power or performing any function under a subdelegation (see sub-
clause 73(2) of the ARENA Bill).
The rules about delegations set out in sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 would also apply to subdelegations made under this item (see
sub-clause 73(3) of the ARENA Bill).
Item 34: Regulations
This item would give the Governor-General the power to make regulations
prescribing matters required or permitted by Schedule 2 to the Bill to be prescribed or
necessary or convenient to be prescribed for carrying out or giving effect to the
Schedule.
Sub-item (2) would make clear that the regulation making power provided by this
item extends to matters of a transitional nature (including the prescription of any
15
saving or application provisions) relating to the amendments or repeals made by the
Bill or to the enactment of the Bill or the ARENA Bill.
Sub-item (3) would provide that regulations made under this item may modify the
provisions of Schedule 2. This sub-item has been included due to the complexity of
the transitional matters associated with the establishment of ARENA. Its purpose is to
provide a means of varying the operation of the Schedule in order to avoid any results
that were not intended.
16