Public Governance and Resources Legislation Amendment Bill (No 1) 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 281 (16 August 2017)

• Public Governance and Resources Legislation Amendment Bill (No. 1) 2017
• Retrospective application39

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Public Governance and Resources Legislation Amendment Bill (No. 1) 2017

Purpose	This bill seeks to amend various Acts in relation to the governance, performance and accountability of, and the use and management of resources by, the Commonwealth, Commonwealth entities and Commonwealth companies to: • prescribe listed entities for the purposes of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) within entities' enabling legislation; • repeal provisions covering issues now provided for by the PGPA Act, such as disclosure of interests and annual reporting requirements; and • update references in legislation from the Financial Management and Accountability Act 1997 and the Commonwealth Authorities and Companies Act 1997 to the PGPA Act The bill also makes minor amendments to legislation consequential to the sale of Medibank Private Limited in 2014
Portfolio	Finance
Introduced	House of Representatives on 22 June 2017
Bill status	Before House of Representatives
Scrutiny principles	Standing Order 24(1)(a)(i) and (iv)

2.87 The committee dealt with this bill in Scrutiny Digest No. 8 of 2017. The Minister responded to the committee's comments in a letter dated 14 August 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[38]

Retrospective application^[39]

Initial scrutiny – extract

2.88 Schedule 4 to the bill contains transitional and application provisions. Item 4 provides that despite subsections 12(2) and (3) of the Legislation Act 2003 (which restricts the retrospective application of legislative instruments), legislative instruments that amend another legislative instrument as a consequence of amendments or repeals made by the bill may be expressed to have taken effect from a date before the amending instrument is registered.^[40]

2.89 The committee has a long-standing scrutiny concern about provisions which facilitate the retrospective application of the law, as such provisions challenge a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

2.90 Generally, where proposed legislation facilitates the retrospective application of the law the committee expects the explanatory materials should set out the reasons why retrospectivity is required, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. In this case, the explanatory materials merely repeat the effect of the provision without providing any detail as to why it is necessary to authorise the making of retrospective legislative instruments.

2.91 The committee therefore requests the Minister's advice as to why it is considered necessary to authorise the making of retrospective legislative instruments in this instance, including examples of circumstances where such a power may be used, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

Minister's response

2.92 The Minister advised:

In Scrutiny Digest No. 8 of 2017, the Committee sought my advice as to why it is considered necessary to authorise the making of retrospective legislative instruments in this instance, including examples of circumstances where such a power may be used, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

Item 4 of Schedule 4 to the Bill is a facilitative provision that reflects good law making and its intent to support the seamless application of the law.
It is considered necessary in this instance to ensure that, where a need is recognised, any legislative instrument, including amendments to a legislative instrument that is consequential on the enactment of the Bill, may commence on a day before the legislative instrument is registered, including the date of the commencement of the Bill.
For example, I am currently in the process of drafting a legislative instrument that would repeal the National Competition Council, the Australian Building and Construction Commission and the Australian Transaction Reports and Analysis Centre from Schedule 1 to the Public Governance, Performance and Accountability Rule 2014. The instrument would rely on item 4 of Schedule 4 in taking effect from a date before it is registered, that is at the commencement of Bill. This would support the seamless application of the law.
The inclusion of item 4 of Schedule 4 to the Bill reflects past practice of including similar provisions within Public Governance, Performance and Accountability Act 2013 related legislation. For example, the following two Acts include similar provisions:

• Item 5 of Schedule 14 to the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014; and

• Item 1 of Schedule 7 to the Public Governance and Resources Legislation Amendment Act (No. 1) 2015.

No amendments have been made in reliance on either of the two above provisions as a consequence of the enactment of those Acts.
In light of the administrative nature of the amendments in the Bill and their relevance only to Commonwealth entities, any amendment to a legislative instrument made as a consequence to the enactment of the Bill is unlikely to result in any adverse effects on any individual other than the Commonwealth.
I trust this information supports the Committee in finalising its consideration of the Bill.

Committee comment

2.93 The committee thanks the Minister for this response. The committee notes the Minister's advice that the amendments in the bill are administrative in nature, are relevant only to Commonwealth entities and therefore any amendment to a legislative instrument made as a consequence to the enactment of the bill is unlikely to result in any adverse effects on any individual.

2.94 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.95 In light of the detailed information provided, the committee makes no further comment on this matter.

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[38] See correspondence relating to Scrutiny Digest No. 9 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest.

[39] Schedule 4, item 4. The committee draws Senators' attention to this provision pursuant to principles 1(a)(i) and (iv) of the committee's terms of reference.

[40] Explanatory memorandum, p. 20.