Commonwealth Numbered Regulations - Explanatory Statements

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COMMONWEALTH AUTHORITIES AND COMPANIES AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 285

The Commonwealth Authorities and Companies Act 1997 (the Act) provides reporting, accountability and other rules for Commonwealth authorities and companies.

Subsection 49(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Commonwealth Authorities and Companies Amendment Regulations 2004 (the Amendment Regulations) amended the Commonwealth Authorities and Companies Regulations 1997 (the Principal Regulations) by:

•       prescribing a list of Commonwealth authorities and wholly-owned Commonwealth companies that are subject to government procurement requirements as a consequence of the Australia-United States Free Trade Agreement (AUSFTA);

•       facilitating clear identification of all bodies prescribed in the Principal Regulations by listing a unique identifier in addition to the name of each body;

•       providing for all prescribed companies and authorities named in regulations to remain prescribed even if there is a change in their name that has not yet been reflected in the Principal Regulations; and

•       updating the list of prescribed government business enterprises (GBEs) and the list of Commonwealth companies for which the Minister for Finance and Administration (the Finance Minister) is prescribed as the responsible Minister.

The US Free Trade Agreement Implementation Act 2004 (USFTA Act) consists of nine Schedules that amended relevant Australian legislation and fulfilled Australia's obligations under the AUSFTA. Schedule 6 to the USFTA Act inserted section 47A of the Act, which provides that the Finance Minster may give written directions, on matters related to the procurement of property or services, to the directors of those Commonwealth authorities and wholly-owned Commonwealth companies listed in the Principal Regulations. Schedule 6 to the USFTA Act commenced on Royal Assent.

Section 5 of the Act includes the following definitions:

•       a 'GBE' is a Commonwealth authority or Commonwealth company that is prescribed by the regulations to be a GBE; and

•       the 'responsible Minister' for a Commonwealth company is the Minister who is prescribed by the regulations as the Minister responsible for the company, or if no Minister is prescribed, the Minister who is responsible for the company.

For the purposes of section 5 of the Act, the Principal Regulations prescribe:

•       Commonwealth authorities and companies that are GBEs (Regulation 4); and

•       Commonwealth companies for which the Minister for Finance and Administration is the responsible Minister (Regulation 4A).

The Amendment Regulations:

•       Prescribe the Commonwealth authorities and companies to which the Finance Minister may issue directions under section 47A of the Act.

-       The Government's procurement policy framework is detailed in the Commonwealth Procurement Guidelines (CPGs). Previously, this framework did not apply to bodies subject to the Act.

-       Under section 3 of Annex 15-A of the AUSFTA, 33 Commonwealth authorities and Commonwealth companies are specified as procuring entities for the purposes of the AUSFTA. The Amendment Regulations prescribe these 33 bodies for the purposes of section 47A of the Act, requiring them to comply with the Government's procurement policy framework, detailed in the CPGs.

•       Specify a unique identifier for each prescribed body in the Principal Regulations.

-       This was achieved by replacing the lists in Regulation 4 and Regulation 4A with tables that include the enabling legislation of each Commonwealth authority, and the Australian Company Number of each Commonwealth company.

-       The list of bodies subject to the CPGs also includes unique identifiers.

-       This provides a unique identifier for each body that cannot be changed by the body, allowing it to be identified even if its name changes.

•       Provide that if a name change applies to a prescribed company or a prescribed authority that is established by an Act but named by a regulation made under that Act, references to the former name should be read as references to the new name.

-       This Amendment ensures that each company or authority listed in the Principal Regulations remains prescribed even if its name is changed through company resolution under the Corporations Act 2001 or through amendments to the regulations under its enabling legislation.

-       It is not necessary for a similar provision to apply to prescribed Commonwealth authorities named in primary legislation, because section 25B of the Acts Interpretation Act 2001would operate to have the same effect in the event of a name change through an Act.

•       Remove ComLand Limited (ComLand) from the list of Commonwealth authorities and companies that are prescribed as GBEs for the purposes of the Act. This was achieved by omitting ComLand from Regulation 4.

-       The sale of ComLand was completed on 4 June 2004.

•       Remove ComLand from the list of Commonwealth companies for which the Minister for Finance and Administration is prescribed as the responsible Minister. This was achieved by omitting ComLand from Regulation 4A.

The Regulations commenced on gazettal.