Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Following the receipt of a satisfactory response, on behalf of the Standing Committee on Regulations and Ordinances I give notice that on the next day of sitting I shall withdraw business of the Senate notice of motion No. 2 standing in my name for 12 sitting days after today for the disallowance of the Other Grants Guidelines Research 2008. I seek leave to incorporate in Hansard the committee’s correspondence concerning the instrument.

Leave granted.

The correspondence read as follows—

Other Grants Guidelines (Research) 2008

5 February 2009

Senator the Hon Kim Carr

Minister for Innovation, Industry, Science and Research

Suite M1.48

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Other Grants Guidelines (Research) 2008 made under section 238-10 of the Higher Education Support Act 2003 that revoke and remake the Other Grants Guidelines. The Committee’s consideration of these Guidelines has raised the following issues.

Appendix 2A to these Guidelines specifies the conditions that apply to a Commercialisation Training Scheme grant. Clause 7 deals with rights of access to the premises and records of a grant recipient. Subclause 7.1 states that access must be given to certain prescribed officers, including “any person authorised in writing by the Secretary”. This appears to be a wide discretion. The Committee would appreciate your advice as to the need for this wide power and whether it should be restricted to persons of suitable seniority and experience.

Subclause 6.3 in Appendix 2A states that the Commonwealth’s right to be indemnified is “in addition to, and not exclusive of” any other right, power or remedy provided by law. The words “not exclusive of” are, presumably, intended to mean “does not exclude”, rather than implying that the Commonwealth’s right is inclusive of other rights. The Committee seeks your advice as to whether this wording should be corrected to avoid any ambiguity.

The Committee would appreciate your advice on the above matters as soon as possible, but before 6 March 2009, to enable it to finalise its consideration of these Guidelines. Correspondence should be directed to the Chair, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

Senator Dana Wortley

Chair

16 March 2009

Senator Dana Wortley

Chair

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Wortley

Thank you for your letter of 5 February 2009 concerning the Senate Standing Committee on Regulations and Ordinances’ consideration of the Other Grants Guidelines (Research) 2008.

I agree that the provisions of sub-clause 7.1 are wide, but I believe this is necessary for my Department to fully meet its fiduciary duties in relation to the Commercialisation Training Scheme (CTS). The access provisions contained in clause 7 identify those officers with a clearly defined statutory or program management role in relation to the administration of the CTS. However, my Department may occasionally need to rely on the skills of individuals or organisations that cannot easily be identified in advance. For example, an audit of data returns required under the CTS conditions of grant may require the engagement of a private audit firm or information technology specialist.

In such circumstances, I believe that it is necessary for the Secretary to be able to source appropriate expertise and to ensure access to information as appropriate. In this case, sub-clause 7.1 allows these individuals or classes of individuals to be authorised at the discretion of the Secretary. I can assure you that the Secretary will ensure appropriate consideration of the skill sets required at the time in order to guarantee that only persons of suitable seniority and experience are authorised under this sub-clause.

In relation to the indemnity provisions in sub-clause 6.3, you correctly identified that within the phrase “in addition to, and not exclusive of”, the expression “not exclusive of” is intended to mean “does not exclude”. I understand that “in addition to, and not exclusive of,” is in relatively common use in Commonwealth agreements, however, I accept your view that a more direct expression would present less opportunity for confusion. My Department operates on an annual cycle that provides for review and amendment of guidelines each year subsequent to each year’s budget and I propose that this issue be corrected through the next amendment to the guidelines.

I trust that this information is of assistance to the committee. Thank you for seeking my views on these matters.

Yours sincerely

Kim Carr

Minister for Innovation, Industry, Science and Research

On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move:

No. 1—That ACIS Administration (Commonwealth Financial Assistance) Determination 2009, made under subsections 11(3) and (4) of the ACIS Administration Act 1999, be disallowed.

No. 2—That the Banking Amendment Regulations 2008 (No. 2), as contained in Select Legislative Instrument 2008 No. 280 and made under the Banking Act 1959, be disallowed.

No. 3—That Banking (prudential standard) determination No. 3 of 2008, made under subsections 11AF(1) and (3) of the Banking Act 1959, be disallowed.

No. 4—That the Family Law Amendment Regulations 2008 (No. 3), as contained in Select Legislative Instrument 2008 No. 258 and made under the Family Law Act 1975, be disallowed.

No. 5—That Instrument number CASA 51/09, made under regulation 208 of the Civil Aviation Regulations 1988, be disallowed.

No. 6—That the Insurance Amendment Regulations 2008 (No. 2), as contained in Select Legislative Instrument 2008 No. 281 and made under the Insurance Act 1973, be disallowed.

No. 7—That Social Security (Administration) (Schooling Requirement) Determination 2009 (No. 1), made under section 124C of the Social Security (Administration) Act 1999, be disallowed.

I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.

Leave granted.

The summary read as follows—

ACIS Administration (Commonwealth Financial Assistance) Determination 2009

This Determination specifies automotive and other industry assistance programs for the purposes of the Automotive Competitiveness and Investment Scheme. Section 17 of the Legislative Instruments Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken particularly where a proposed instrument is likely to have an effect on business. Section 18 of the Act provides that in some circumstances consultation may be unnecessary or inappropriate. The definition of ‘explanatory statement’ in section 4 of the Act requires an explanatory statement to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken. The Explanatory Statement that accompanies this Determination makes no reference to consultation. The Committee has written to the Minister seeking advice on whether consultation was undertaken and, if so, the nature of that consultation.

Banking Amendment Regulations 2008 (No. 2), Select Legislative Instrument 2008 No. 280

These Amending Regulations make provision for the Financial Claims Scheme. The Explanatory Statement that accompanies these Regulations makes no reference to consultation. The Committee has written to the Minister seeking advice on whether consultation was undertaken and, if so, the nature of that consultation.

Banking (Prudential Standards) Determination No. 3 of 2008

This Determination revokes and replaces Prudential Standard APS 222 Associations with Related Entities which applies to all authorised deposit-taking institutions.

Clause 12 permits APRA to deem that other entities are related entities of an authorised deposit-taking institution (ADI). The ADI must then comply with monitoring and risk-control requirements in relation to the deemed related entity. This appears to be a widely-framed discretion. There is no indication as to the circumstances under which this discretion will be exercised and whether there is prior consultation with an ADI.

Clause 35 requires an ADI to consult with APRA prior to certain events (eg establishing or acquiring a subsidiary). It is not clear whether this clause operates simply as a method of notification, or whether APRA approval is required before the stipulated events.

The Committee has written to the Minister seeking further advice on these provisions.

Family Law Amendment Regulations 2008 (No. 3), as contained in Select Legislative Instrument 2008 No. 258

The Explanatory Statement that accompanies these Regulations makes no reference to consultation. The Committee has written to the Minister seeking advice on whether consultation was undertaken and, if so, the nature of that consultation.

Instrument Number CASA 51/09

This instrument permits certain aircraft operated by Macair Airlines Pty Ltd to be operated with one flight attendant. The Explanatory Statement indicates that the Civil Aviation Safety Authority (CASA) consulted ‘within CASA and with Macair Airlines’ prior to making this instrument. Notwithstanding the consultation with the airline, it is not clear how consultation by a rule-maker with itself meets the requirement of section 17 of the Legislative Instruments Act 2003. It is also unclear what consultation ‘within CASA’ means. The Committee has written to the Minister seeking advice on this matter.

Insurance Amendment Regulations 2008 (No. 2), as contained in Select Legislative Instrument 2008 No. 281

These Amending Regulations make provision for the Financial Claims Scheme. The Explanatory Statement that accompanies this instrument notes that there was only limited consultation due to the urgency of the amendments. The Committee has written to the Minister seeking further explanation about the nature of this limited consultation.

Social Security (Administration) (Schooling Requirement) Determination 2009 (No. 1)

This Determination specifies matters relevant to a decision regarding the suspension of a person’s schooling requirement payment.

Part 1 of Schedule 1 to this Determination lists reasonable excuses for failing to comply with an enrolment notice. Item 5 of Part 1 provides that it is an excuse if “the person has a reasonable belief that no school at which the child may reasonably be enrolled can provide a safe environment”. Paragraph 6(1)(b) of the Determination states that the Secretary may determine that this is a reasonable excuse if the excuse is reasonable in the circumstances. It thus appears that the Secretary must determine whether a reasonable belief is reasonable in the circumstances. The reason for the imposition of a double requirement of reasonableness is unclear.

Part 2 of Schedule 1 lists reasonable excuses for failing to comply with an attendance notice. Item 2 of Part 2 provides that it is an excuse if “the school … cannot provide a safe environment”. This is not framed as a reasonable belief, in contrast to Item 5 of Part 1. The explanatory statement provides no indication of the reasons for the difference in drafting.

The Committee has written to the Minister seeking advice on these matters.