BUSHFIRE RECONSTRUCTION AUTHORITY BILL 2003

An Act to establish a Bushfire Reconstruction Authority, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act or in other legislation.

For example, the signpost definition ‘development—see the Land (Planning and Environment) Act 1991, section 222.’ means that the word ‘development’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

bushfire emergency means the period that began on 18 January 2003 and ended on 28 January 2003.

fire-affected area means an area, whether urban or rural, prescribed under the regulations as being affected by fire or other natural causes during the bushfire emergency.

recovery period means the period beginning on the day section 10 (Establishment of Bushfire Reconstruction Authority) commences and ending—

(b) if the Minister fixes an earlier day under subsection (2)—the earlier day.

(2) The Minister may, by written notice, fix a day for the end of the recovery period.

(1) After the end of the recovery period, the authority may exercise its functions only to wind up its affairs.

(2) The authority ceases to exist on a day fixed by the Minister by written notice that is not earlier than the end of the recovery period.

(a) any property that, immediately before that day, was vested in the authority vests in the Territory; and

(b) any liabilities to which the authority was subject immediately before that day become liabilities of the Territory.

(5) If the authority is a party to a contract or agreement immediately before the day fixed for subsection (2), the contract or agreement continues in force but has effect as if—

(a) the Territory were substituted for the authority as a party to the contract or agreement; and

(b) any reference in the contract or agreement to the authority were a reference to the Territory.

(3) In exercising its functions, the authority has the same capacity as an individual.

(a) to assist the Territory government in deciding the desirable extent, nature and purposes of the land use and development of the fire-affected areas;

(b) to carry out planning for the land use and development of fire-affected areas in accordance with any policies of the Territory government, and recommend to the Minister general planning and development schemes for the fire-affected areas;

(c) to undertake development in the fire-affected areas and to supervise, control and cooperate in the undertaking of development by other authorities and people in the fire-affected areas;

(d) to provide, and arrange, coordinate and control the provision of, works, services, facilities and public utilities in the fire- affected areas;

(i) the expenditure of public and private money for development and construction in the fire-affected areas; and

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

All administrative units and Territory authorities must give the authority any assistance in carrying out its functions that is reasonably practical.

The authority has the following powers, subject to any regulations made for this section:

(a) to control and administer land vested in the authority or placed under its control;

(b) to make contracts, including contracts for carrying out building or other work for other bodies or individuals;

(d) to purchase or take on hire, and to dispose of or let out, plant, machinery, equipment or other goods;

(e) to make arrangements with individuals and bodies to ensure that there are sufficient building and workforce resources available for development in fire-affected areas;

(f) to charge fees for work done, or for anything else done or provided, by the authority.

In the exercise of its functions, the authority must give particular attention to the extent to which, and the way in which, buildings and services in the fire-affected areas should be made capable of resisting damage by bushfire.

(1) The authority must, as far as practicable, ensure that the views of residents and affected entities in the ACT are actively sought and substantially taken into consideration in making decisions about the exercise of its functions.

(2) To comply with subsection (1), the authority may establish committees, conduct inquiries and do anything else it considers desirable to consult with residents and affected entities in the ACT about the proposed exercise of the authority’s functions.

16 Proposals, and objections to proposals, for planning and development schemes

(1) The authority may prepare proposals for general planning and development schemes for the development of the fire-affected areas.

(2) The authority must make the proposals available for inspection by the public for a period of at least 1 month.

(3) When any proposals are available for public inspection under subsection (2), a person who has an interest in land in the fire-affected areas that is affected by those proposals may object to the proposals.

(5) The authority may, by written notice to the person making an objection, give the person an opportunity to make submissions to the authority, either orally or in writing, in relation to the objection, within a period stated by the authority in the notice.

(6) After the period within which a person may make submissions under subsection (5) in relation to an objection, the authority may change the proposals to which the objection was made in any way that it considers appropriate and may recommend to the Minister that the proposals, or the proposals as changed, be adopted.

(1) The Minister may approve a general planning and development scheme (an approved scheme) after considering any recommendations of the authority under section 16.

(3) The authority must exercise its functions in relation to development in accordance with any relevant approved scheme.

(4) All administrative units and Territory authorities must comply with an approved scheme.

(5) If the Territory plan is inconsistent with an approved scheme, the plan is taken to be amended to the extent necessary to be consistent with the scheme.

(a) programs for development in the fire affected areas in particular periods; and

(b) a program for a particular period when directed to do so by the Minister.

(2) A program must be in a form approved by the Minister and must indicate the objectives that the authority considers should be achieved during the period concerned, and the nature and extent of public and private investment.

(1) The Minister may, by written direction, place under the control of the authority any land in a fire-affected area that is the property of the Territory and is not included in a lease granted to any other person.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(3) In relation to any land controlled by the authority under this section—

(a) the authority may, subject to this section, occupy and manage the land and carry out any works on, and make any use of, the land in the exercise of its functions as it considers appropriate; and

(4) When the management or use of any land that has been placed under the control of the authority under this section is no longer required by the authority, the authority must surrender the control of the land to the Territory.

(5) The Minister may, by written notice to the authority, revoke a direction under subsection (1).

(1) A person commits an offence if, in a fire-affected area and on or after a date declared in writing by the Minister, the person begins, continues or completes a development consisting of the erection, alteration or demolition of a building, or the performance of any related works.

(2) Subsection (1) does not apply if the person begins, continues or completes a development mentioned in the subsection—

(5) The Territory or a Territory authority must not, without reasonable excuse, fail to comply with subsection (1).

(6) For the guidance of persons seeking approval under this section, the authority may approve building codes or other rules, not inconsistent with any regulations under this Act, with effect as amended from time to time.

(7) A building code or rule approved under subsection (6) is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(8) A development undertaken in accordance with an approval may be undertaken despite any Territory law that would otherwise prevent it.

(9) The Supreme Court may, on the application of the authority, grant injunctions, including mandatory and interlocutory injunctions, for securing compliance with this section, or arising out of any failure to comply with, this section.

(a) regulating or restricting the power of the authority to give or refuse approvals, including regulations about building standards and requirements; or

(b) exempting people, buildings, land, developments or work from the operation of this section.

(1) The authority may only enter, or perform work on, land not owned or controlled by the authority, the Territory or another Territory authority if authorised under—

(2) For the purposes of public health or safety, the authority may, by its authorised employees, agents or contractors, enter on land mentioned in subsection (1)—

(a) to demolish dangerous or damaged buildings, remove debris, goods and materials, and perform any related work, on that land; or

(b) to do work on that land in the exercise of its functions in relation to other land.

(3) The authority is liable to pay any reasonable compensation decided by agreement or by a court of competent jurisdiction for loss or damage resulting from the exercise of its powers under this section.

(4) A person commits an offence if the person intentionally obstructs or hinders the authority or anyone else in the exercise of powers under this section.

(1) The authority may, by written notice giving reasons, direct everyone to leave, or prohibit everyone from entering, any premises in a fire-affected area that are, in the authority’s opinion, in a dangerous condition or unfit for occupation.

(2) A direction under subsection (1) must be displayed prominently at the premises concerned.

(3) A person authorised in writing by the authority may, by written notice to a person giving reasons, direct the person to leave, or prohibit the person from entering, any premises in a fire-affected area that are, in the opinion of the person giving the direction, in a dangerous condition or unfit for occupation.

(4) A person commits an offence if the person contravenes a direction applying to the person that is displayed, or given to the person, in accordance with this section.

(6) However, a person is not required to comply with a direction given to the person under subsection (3) if, at the request of the person, the person giving the direction fails to produce the authorisation mentioned in that subsection.

(1) The board has general responsibility for the policies and management of the authority.

(b) ensure that the authority exercises its functions in a proper, effective and efficient way.

Note 1 For the making of appointments (including acting appointments), see Legislation Act, pt 19.3.

Note 2 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

(a) at least 1 must be appointed to represent the interests of people who suffered injury or property damage during the bushfire emergency because of fire or other natural causes; and

(b) at least 1 must have expertise or experience in reconstruction following natural disasters; and

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

(1) The Chief Minister must appoint a director to be the chairperson of the board.

(2) The directors must elect one of their number to be the deputy chairperson of the board.

In the exercise of a function as a director, a director must exercise the degree of honesty, care and diligence that is required to be exercised by a director of a company in relation to the affairs of the company.

(1) The Chief Minister must end the appointment of a director if the director—

(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

(b) is absent, except with the board’s leave, from 3 consecutive meetings of the board; or

(d) contravenes section 29 (Disclosure of interests by directors) without reasonable excuse; or

(e) is sentenced, in Australia or elsewhere, to imprisonment for at least 1 year; or

(ii) that involves fraud or arises out of the promotion, formation or management of a corporation.

Note A director’s appointment also ends if the director resigns (see Legislation Act, s 210).

(2) The Chief Minister may end the appointment of a director if the board tells the Chief Minister in writing that it has resolved, by a majority of at least ²/3 of the directors, to recommend to the Chief Minister that the director’s appointment be ended.

(a) at least 21 days written notice of the intention to consider the proposed resolution has been given to the director concerned; and

(b) the director has been given an opportunity to make submissions and present documents to a meeting of the board; and

(c) if the member has taken advantage of the opportunity mentioned in paragraph (b)—a summary of his or her arguments is recorded in the board’s minutes and a copy of any documents presented is incorporated in the minutes.

(1) A director who has a relevant interest in an issue being considered, or about to be considered, by the board must, as soon as practicable after the relevant facts have come to the director’s knowledge, disclose the nature of the interest at a meeting of the board.

(2) The disclosure must be recorded in the board’s minutes and, unless the board otherwise decides, the director must not—

(3) Any other director who also has a relevant interest in the issue must not—

(a) be present when the board is considering its decision under subsection (2); or

(b) a direct or indirect interest of any other kind if the interest could conflict with the proper exercise of the director’s functions in relation to the board’s consideration of the issue.

(1) Within 14 days after the day a disclosure of an interest is made under section 29 (1), the chairperson must report to the Minister in writing about—

(2) Not later than 31 July in each year the chairperson must give to the Minister, a statement setting out the information given to the Minister in reports under subsection (1) that relate to disclosures made during the previous financial year.

(3) The Minister must give a copy of the statement to the relevant committee of the Legislative Assembly within 14 days after the day the Minister receives the statement.

(1) The chairperson or, if the chairperson cannot do so, the deputy chairperson—

(b) must call a meeting of the board if asked by the Minister or if asked, in writing, by at least 2 directors.

(2) A person who calls a meeting of the board must give the other directors reasonable notice of the time and place of the meeting.

(1) The chairperson must preside at all meetings of the board at which he or she is present.

(2) If the chairperson is not present at a meeting, the deputy chairperson must preside.

(3) If the chairperson and the deputy chairperson are both absent from a meeting, the directors present must elect a director to preside.

(4) Subject to any decision of the board, the procedures to be followed in connection with a meeting are as the presiding director decides.

(5) If all the directors agree, a meeting may be held by means of a method of communication, or a combination of methods of communication, that enables all participants to hear what another participant says without being in each other’s presence.

(6) A director who takes part in a meeting conducted under subsection (5) is taken, for all purposes, to be present at the meeting.

(7) Questions arising at a meeting may be decided by a majority of the votes of the directors present and voting.

(8) The presiding director has a deciding vote and, if the votes are equal, a casting vote.

(9) The board must keep minutes of its proceedings in writing or in such other form as the board decides.

Note For the making of appointments (including acting appointments), see Legislation Act, div 18.3.

(2) The chief executive officer’s conditions of appointment are the conditions agreed between the board and the chief executive officer, subject to any determination under the Remuneration Tribunal Act 1995.

(3) The board may enter into an agreement mentioned in subsection (2) only after consulting the Minister.

(4) The board may end the chief executive officer’s appointment only after consulting the Minister.

(1) The chief executive officer must manage the authority’s affairs on behalf of the board.

(2) The chief executive officer also has any other function given to the chief executive officer by the board.

(3) The chief executive officer must exercise the chief executive officer’s functions in accordance with any direction given by the board.

The staff of the board are employed under the Public Sector Management Act 1994.

Note The Public Sector Management Act 1994, s 24 provides that the chief executive officer of an instrumentality has all the powers of a chief executive under the Act in relation to staff members who are public servants. Under that Act, s 3, def chief executive officer, the chief executive officer of an instrumentality is the person who has responsibility for managing its affairs.

(2) However, the board must not enter into a contract of employment under this section.

The authority must provide the Minister with all the information about the affairs of the authority that the Minister asks for.

The authority must, as soon as practicable, tell the Minister of any significant event that affects, or seems likely to affect—

(1) The Minister may give written directions to the authority in relation to the exercise of its functions.

(b) give the authority a reasonable opportunity to comment on the proposed direction; and

(a) present a copy of a direction to the Legislative Assembly within 6 sitting days after the day the Minister makes it; and

(b) if the copy would not be presented to the Legislative Assembly under paragraph (a) within 14 days after the day the Minister makes it—give a copy of the direction to members of the Legislative Assembly within the 14 days.

(5) If subsection (4) is not complied with, the direction is taken to have been revoked at the end of the period within which the copy of the direction should have been presented or given to members.

(1) The Territory is liable to reimburse the authority for the net reasonable expense of complying with a direction under section 40.

(a) if the direction requires the authority to do something that, but for the direction, it would not have done—the reasonable cost of, and the estimated revenue foregone in, complying with the direction; or

(b) if the direction requires the authority to perform an activity in a way that is different from the way the authority had intended to perform it—the additional cost incurred, and the estimated revenue foregone, in performing the activity in accordance with the direction; or

(c) if the direction requires the authority to refrain from performing an activity—the difference (if any) between any estimated foregone revenue and the savings resulting from the nonperformance of the activity.

(3) An amount is not payable under subsection (2) unless it is agreed to by the Minister and the authority.

(1) The Minister may ask the authority in writing to prepare and give to him or her a business plan made up to a date stated in the direction (the stated date).

(2) If the Minister makes a request under subsection (1), the authority must give to the Minister a business plan that includes the following:

(a) a profit and loss account for the period from the beginning of the financial year to the stated date;

(d) estimated profit and loss accounts and cash flow statements for each of the next 3 financial years;

(e) a statement of estimated assets and liabilities at the end of each of the next 3 financial years;

(f) a copy of the statement of intent for the current financial year provided under the Financial Management Act 1996, section 58 (1);

(g) a description of the business and corporate strategies adopted by the authority;

(h) a description of any significant action that the authority has taken or intends to take in order to achieve the estimates set out in the statements under paragraphs (d) and (e);

(i) an explanation of any significant variation disclosed by the business plan from—

(i) estimates given by the authority for the current or a future financial year in a previous report; or

(ii) strategies or policies, whether adopted or contemplated, of which advice had been given in a previous report.

previous report, in relation to an explanation of a variation, means a business plan, information given to the Minister or the Treasurer, or a statement of intent, given before the variation.

(a) present a copy of each business plan to the Legislative Assembly within 6 sitting days after the day the Minister receives it; and

(b) if the copy would not be presented to the Legislative Assembly under paragraph (a) within 14 days after the day the Minister receives it—give a copy of the business plan to members of the Legislative Assembly within the 14 days.

(1) This section applies to a financial year if the authority has previously given to the Minister a business plan containing estimates for the financial year.

(2) As soon as practicable after 31 December and 30 June in a financial year to which this section applies, the authority must give to the Minister a written assessment of its performance, for the 6-month period ending on those dates, in relation to the estimates contained in the latest business plan given to the Minister for that period.

(3) A report under subsection (2) must be prepared in a form that facilitates a comparison between the business plan estimates applicable to the period and the outcomes of operations of the authority during the period.

(1) If there are profits available for doing so, the Treasurer, after consultation with the board, may direct the authority to declare a dividend for a financial year of the amount directed by the Treasurer.

(2) The authority must pay to the Territory, within 1 month after receiving a direction under subsection (1), a dividend in accordance with the direction.

(a) the profits for the financial year to which the Treasurer’s direction relates; and

(b) any profits for any previous financial year that have not previously been taken into account in deciding whether a dividend should be declared.

(1) The authority must give to the Treasurer the reports that the Treasurer requires, in addition to any other reports that the authority is required by a Territory law to make.

(2) A report under this section must be prepared in the form, and be based on accounting or other policies or practices, required by the Treasurer.

(a) present a copy of a report under this section to the Legislative Assembly within 6 sitting days after the day the Treasurer receives it; and

(b) if the copy would not be presented to the Legislative Assembly under paragraph (a) within 14 days after the day the Treasurer receives it—give a copy of the report to members of the Legislative Assembly within the 14 days.

(1) Six months after the day section 10 (Establishment of Bushfire Reconstruction Authority) commences, and every 6 months after that, the authority must give the Minister a report on—

(a) the financial performance of the authority for the previous 6 months; and

(b) the authority’s progress on reconstruction in the fire-affected areas during the previous 6 months, and in carrying out the other functions exercised by the authority.

(2) The Minister must give a copy of the report to the relevant committee of the Legislative Assembly within 14 days after the day the Minister receives the report.

A relevant person commits an offence if the person intentionally makes improper use of his or her position as a relevant person to gain, directly or indirectly, an advantage for himself or herself or anyone else or to cause detriment to the authority.

A relevant person or former relevant person commits an offence if the person intentionally makes improper use of information acquired because of his or her position as a relevant person to gain, directly or indirectly, an advantage for himself or herself or anyone else or to cause detriment to the authority.

Anything done on behalf of the authority by the board or the chief executive officer is taken to have been done by the authority.

A report or information prepared by the authority for the Annual Reports (Government Agencies) Act 1995, section 8 must include, for the reporting period—

(a) a copy of any direction given by the Minister under section 40 during the period; and

(b) a statement by the authority about action taken during the period to give effect to any direction given by the Minister under that section, whether during that period or an earlier one.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 In particular, the Legislation Act, dict, pt 1, defines the following terms:

authority means the Bushfire Reconstruction Authority established by section 10.

development—see the Land (Planning and Environment) Act 1991, section 222.

(a) a standing committee of the Legislative Assembly nominated by the Speaker for this Act; or

(b) if no nomination under paragraph (a) is in force—the standing committee of the Legislative Assembly responsible for public accounts.

relevant person, for division 6.1 (Conduct of people associated with authority)—see section 47.

Australian Capital Territory Bills

BUSHFIRE RECONSTRUCTION AUTHORITY BILL 2003