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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to support domestic projects in the national interest
consistent with the Future Made in Australia National Interest
framework. The
bill also includes technical measures on eligible activities with new
definitions and seeks to make minor amendments
to modernise legislation.
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Portfolio
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Treasury
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Introduced
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House of Representatives on 3 July 2024
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Bill status
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Before the Senate
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2.70 Currently the Australian Renewable Energy Agency Act 2011 (the ARENA Act) provides that the Australian Renewable Energy Agency (ARENA) may delegate all or any of its powers or functions under the ARENA Act to a member of its Board or to its Chief Executive Officer (CEO). The CEO may, in writing, subdelegate a power or function to the Chief Financial Officer or a member of staff who is an SES employee, acting SES employee or an Executive Level 2 employee or equivalent. This bill seeks to amend this to allow the CEO to, in writing, subdelegate to ‘a senior member of the staff referred to in section 61’.[90] The bill also seeks to replace existing sections 61 and 62 to allow ARENA to employ ‘such persons as it considers necessary’. It does not provide a definition of ‘senior members of staff’.[91]
2.71 The provision does not specify which senior members of staff the powers or functions may be subdelegated to. It is also noted that the ARENA Act currently provides that the CEO may subdelegate to members of the SES or EL2. As such, this amendment would appear to indicate an intention to subdelegate to levels lower than that of an EL2. Further, there is also no requirement for powers and functions to be subdelegated to members of staff with the requisite skills, qualification or experience to exercise those powers or perform those functions.
2.72 In Scrutiny Digest 9 of 2024 the committee sought the Treasurer’s advice as to:
• why it is necessary and appropriate for any of the CEO’s powers to be subdelegated to any ‘senior member of staff’ under proposed subsection 73(1) of the bill;
• whether proposed section 61 of the bill can be amended to include a definition of ‘senior member of staff’; and
• whether proposed subsection 73(1) of the bill can be amended to provide that the CEO’s powers or functions can only be subdelegated where the CEO is satisfied that the subdelegate possesses the appropriate skills, qualifications or experience to exercise the powers or perform the functions.[92]
2.73 The Treasurer advised that the current limitation on sub-delegations to those at the EL2 level of the APS or members of the SES has led to a long-term shortage of delegates, and that amending the delegation power would enable ARENA to have a sufficient number of delegates. However, the Treasurer explained that the reference in the bill’s explanatory memorandum to senior members of staff reflects the intention to ‘maintain the equivalent level of seniority in ARENA’s future delegation arrangements as is currently the case’.
2.74 The Treasurer also advised that it is appropriate for the bill to provide for delegations to senior members of staff as not all staff employed by the ARENA will be employed under the APS Act. Using the definition of ‘a senior member of staff’ will allow the legislation to provide for delegations to senior ARENA employees engaged through the APS or through ARENA’s future right to employ.
2.75 The Treasurer noted that amending the bill to provide for a definition of a senior member of staff would restrict the delegation power and ‘risk frustrating the objectives of the Bill to allow ARENA to employ staff and delegate responsibilities in appropriate circumstances’.
2.76 Further, the Treasurer advised that safeguards are in place to ensure the correct operation of this delegation power including that the Board maintains oversight and control of delegations.
2.77 In relation to the skills and experience of those to whom the functions are delegated, the Treasurer advised that it is not necessary for the bill to have an explicit provision requiring that the CEO be satisfied that the subdelegate possesses appropriate skills, qualifications or experience, as the CEO as a holder of public office would be expected to exercise their power properly, which would include ensuring they only subdelegate to persons who have the necessary skills, qualifications or experience.
2.78 The committee thanks the Treasurer for this response. The committee notes the Treasurer’s advice that the term ‘senior member of staff’ is necessary to accommodate the range of APS and non-APS employees who are, or will be, employed by the ARENA.
2.79 While noting this advice, the committee retains its views that it would be possible for the bill to be drafted so as to ensure that delegations are made to suitably senior members of staff with appropriate flexibility for non-APS members, while also providing a legislative definition of a senior member of staff. The committee notes that the intention is for the delegation to remain at EL2 and higher, and a non-APS equivalent of senior staff. It does not appear to the committee that it would be difficult to accommodate these different categories of employees in defining a senior staff member within the context of the ARENA.
2.80 Further, the committee considers that, given the confidence that the Treasurer has in the ARENA CEO ensuring that delegations are made to staff with appropriate skills, experience and training, there is no reason why such a requirement could not and should not be included on the face of the bill. Safeguards such as these are stronger protections when enshrined in law and the committee’s view is that this is the preferable approach.
2.81 The committee notes its scrutiny concerns would be addressed if the bill were amended to provide:
(a) a definition of ‘senior member of staff’, to make clear that in relation to APS employees this applies to those at the EL2 and SES level, and for non-APS employees this applies to those with equivalent seniority; and/or
(b) the CEO’s powers or functions can only be subdelegated where the CEO is satisfied that the subdelegate possesses the appropriate skills, qualifications or experience to exercise the powers or perform the functions.
|
Purpose
|
This bill seeks to support domestic projects in the national interest
consistent with the Future Made in Australia National Interest
framework. The
bill also includes technical measures on eligible activities with new
definitions and seeks to make minor amendments
to modernise legislation.
|
|
Portfolio
|
Treasury
|
|
Introduced
|
House of Representatives on 3 July 2024
|
|
Bill status
|
Before the Senate
|
2.82 Currently the Australian Renewable Energy Agency Act 2011 (the ARENA Act) provides that the Australian Renewable Energy Agency (ARENA) may delegate all or any of its powers or functions under the ARENA Act to a member of its Board or to its Chief Executive Officer (CEO). The CEO may, in writing, subdelegate a power or function to the Chief Financial Officer or a member of staff who is an SES employee, acting SES employee or an Executive Level 2 employee or equivalent. This bill seeks to amend this to allow the CEO to, in writing, subdelegate to ‘a senior member of the staff referred to in section 61’.[96] The bill also seeks to replace existing sections 61 and 62 to allow ARENA to employ ‘such persons as it considers necessary’. It does not provide a definition of ‘senior members of staff’.[97]
2.83 The provision does not specify which senior members of staff the powers or functions may be subdelegated to. It is also noted that the ARENA Act currently provides that the CEO may subdelegate to members of the SES or EL2. As such, this amendment would appear to indicate an intention to subdelegate to levels lower than that of an EL2. Further, there is also no requirement for powers and functions to be subdelegated to members of staff with the requisite skills, qualification or experience to exercise those powers or perform those functions.
2.84 In Scrutiny Digest 9 of 2024 the committee sought the Treasurer’s advice as to:
• why it is necessary and appropriate for any of the CEO’s powers to be subdelegated to any ‘senior member of staff’ under proposed subsection 73(1) of the bill;
• whether proposed section 61 of the bill can be amended to include a definition of ‘senior member of staff’; and
• whether proposed subsection 73(1) of the bill can be amended to provide that the CEO’s powers or functions can only be subdelegated where the CEO is satisfied that the subdelegate possesses the appropriate skills, qualifications or experience to exercise the powers or perform the functions.[98]
2.85 The Treasurer advised that the current limitation on sub-delegations to those at the EL2 level of the APS or members of the SES has led to a long-term shortage of delegates, and that amending the delegation power would enable ARENA to have a sufficient number of delegates. However, the Treasurer explained that the reference in the bill’s explanatory memorandum to senior members of staff reflects the intention to ‘maintain the equivalent level of seniority in ARENA’s future delegation arrangements as is currently the case’.
2.86 The Treasurer also advised that it is appropriate for the bill to provide for delegations to senior members of staff as not all staff employed by the ARENA will be employed under the APS Act. Using the definition of ‘a senior member of staff’ will allow the legislation to provide for delegations to senior ARENA employees engaged through the APS or through ARENA’s future right to employ.
2.87 The Treasurer noted that amending the bill to provide for a definition of a senior member of staff would restrict the delegation power and ‘risk frustrating the objectives of the Bill to allow ARENA to employ staff and delegate responsibilities in appropriate circumstances’.
2.88 Further, the Treasurer advised that safeguards are in place to ensure the correct operation of this delegation power including that the Board maintains oversight and control of delegations.
2.89 In relation to the skills and experience of those to whom the functions are delegated, the Treasurer advised that it is not necessary for the bill to have an explicit provision requiring that the CEO be satisfied that the subdelegate possesses appropriate skills, qualifications or experience, as the CEO as a holder of public office would be expected to exercise their power properly, which would include ensuring they only subdelegate to persons who have the necessary skills, qualifications or experience.
2.90 The committee thanks the Treasurer for this response. The committee notes the Treasurer’s advice that the term ‘senior member of staff’ is necessary to accommodate the range of APS and non-APS employees who are, or will be, employed by the ARENA.
2.91 While noting this advice, the committee retains its views that it would be possible for the bill to be drafted so as to ensure that delegations are made to suitably senior members of staff with appropriate flexibility for non-APS members, while also providing a legislative definition of a senior member of staff. The committee notes that the intention is for the delegation to remain at EL2 and higher, and a non-APS equivalent of senior staff. It does not appear to the committee that it would be difficult to accommodate these different categories of employees in defining a senior staff member within the context of the ARENA.
2.92 Further, the committee considers that, given the confidence that the Treasurer has in the ARENA CEO ensuring that delegations are made to staff with appropriate skills, experience and training, there is no reason why such a requirement could not and should not be included on the face of the bill. Safeguards such as these are stronger protections when enshrined in law and the committee’s view is that this is the preferable approach.
2.93 The committee notes its scrutiny concerns would be addressed if the bill were amended to provide:
(c) a definition of ‘senior member of staff’, to make clear that in relation to APS employees this applies to those at the EL2 and SES level, and for non-APS employees this applies to those with equivalent seniority; and/or
(d) the CEO’s powers or functions can only be subdelegated where the CEO is satisfied that the subdelegate possesses the appropriate skills, qualifications or experience to exercise the powers or perform the functions.
2.94 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of proposed subsection 73(1) which empowers the CEO to delegate their powers to any senior member of staff.
[88] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Future Made in Australia (Omnibus Amendments No. 1) Bill 2024, Scrutiny Digest 11 of 2024; [2024] AUSStaCSBSD 182.
[89] Schedule 2, item 51, proposed subsection 73(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).
[90] See Schedule 2, item 51, proposed amendment to subsection 73(1) of the Australian Renewable Energy Agency Act 2011.
[91] See Schedule 2, item 43.
[92] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 16–18.
[93] The minister responded to the committee’s comments in a letter received on 29 August 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 11 of 2024).
[94] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Future Made in Australia (Omnibus Amendments No. 1) Bill 2024, Scrutiny Digest 11 of 2024; [2024] AUSStaCSBSD 182.
[95] Schedule 2, item 51, proposed subsection 73(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).
[96] See Schedule 2, item 51, proposed amendment to subsection 73(1) of the Australian Renewable Energy Agency Act 2011.
[97] See Schedule 2, item 43.
[98] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2024 (14 August 2024) pp. 16–18.
[99] The minister responded to the committee’s comments in a letter received on 29 August 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 11 of 2024).
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/182.html