EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 5

 

Issued by the Authority of the Minister for Finance and Deregulation

 

Commonwealth Authorities and Companies Act 1997

 

Commonwealth Authorities and Companies Amendment Regulations 2009 (No. 1)

 

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

 

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

 

The Regulations amend the Commonwealth Authorities and Companies Regulations 1997 (the Principal Regulations) to:

·        allow members of the Australian Government Solicitor (AGS) Advisory Board to serve on the AGS audit committee; and

·        add Australian Technology Group Limited (ATG) and Tuggeranong Office Park Pty Limited (TOPL) to the list of Commonwealth companies for which the Finance Minister is prescribed as the responsible Minister.

 

The Regulations also make a minor amendment to one heading in the Principal Regulations.

 

Amendment of the requirements for the AGS audit committee

 

Subsection 32(2) of the CAC Act provides that if regulations state how an audit committee for a Commonwealth authority is to be constituted, it must be constituted in accordance with the regulations.

 

Regulation 6A of the Principal Regulations, which prescribes the requirements for the composition of a Commonwealth authority’s audit committee, provides that the audit committee must not include senior managers of the authority other than the single senior manager allowed under subparagraph 6A(1)(b)(ii).

 

AGS is a Commonwealth authority with a Chief Executive Officer (CEO), not a governing board, responsible for the governance of AGS. The CEO of AGS is a member of an Advisory Board (established under the AGS Corporate Governance Arrangements (CGA), which is subsidiary legislation made under section 55ZE of the Judiciary Act 1903). The Advisory Board assists and advises the CEO in the operations of AGS. Amendments made by the Commonwealth Authorities and Companies Amendment Act 2008 to the definition of senior manager in the CAC Act from 1 July 2008 resulted in all members of the Advisory Board, not just the CEO, potentially meeting the definition of senior managers for the purposes of the CAC Act.

 

The Regulations amend subparagraph 6A(1)(b)(iii) to allow members of the Advisory Board to serve on the AGS audit committee despite potentially being senior managers of the AGS. Adding members of the AGS Advisory Board to the senior managers able to serve on audit committees helps ensure the AGS audit committee has persons with direct knowledge, at board‑level, of the operations of AGS. The amendments enable the AGS audit committee to have similar expertise that non-executive directors of other Commonwealth authorities provide their audit committees.

 

Prescribing the Finance Minister as the responsible Minister for two Commonwealth companies

 

Section 5 of the CAC Act defines the responsible Minister for a Commonwealth company as 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.

 

The Regulations amend regulation 4A to add ATG and TOPL to the list of Commonwealth companies for which the Finance Minister is prescribed as the responsible Minister. The Finance Minister is the responsible Minister for ATG and TOPL under section 5 of the CAC Act. ATG has been in the Finance portfolio since 2003, and TOPL became a Commonwealth company on 17 December 2008. The inclusion of both companies in the list in regulation 4A improves the completeness of that list and increases transparency for users of the Principal Regulations.

 

Further details of the Regulations are included in the Attachment.

 

Legislative Instruments Act 2003

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

In accordance with section 17 of the Legislative Instruments Act 2003, the Department of Finance and Deregulation has consulted with AGS on the proposed changes.

 

Best Practice Regulation Preliminary Assessment

 

A Best Practice Regulation Preliminary Assessment was undertaken in accordance with the guidance issued by the Office of Best Practice Regulation. This assessment indicated that a regulation impact statement was not required, as the Regulations only affect bodies in the public sector.

 

Commencement

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

ATTACHMENT

 

Details of the Commonwealth Authorities and Companies Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Commonwealth Authorities and Companies Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Amendment of Commonwealth Authorities and Companies Regulations 1997

 

This regulation provides that Schedule 1 amends the Principal Regulations.

 

Schedule 1

 

Item [1]

 

This amendment recognises the Finance Minister as the responsible Minister for Australian Technology Group Limited by inserting it into the table in subregulation 4A(1).

 

Item [2]

 

This amendment recognises the Finance Minister as the responsible Minister for Tuggeranong Office Park Pty. Limited by inserting it into the table in subregulation 4A(1).

 

Item [3]

 

This amendment substitutes the heading of regulation 6 to refer to “Commonwealth authorities incorporated for a public purpose by regulations”, which more accurately describes the regulation’s content.

 

Item [4]

 

This amendment inserts a cross-reference to new subregulation 6A(4) to reflect that the restriction on senior managers sitting on the audit committee of AGS has been qualified.

 

Item [5]

 

This amendment inserts new subregulation 6A(4) to allow members of the AGS Advisory Board to serve on the audit committee of AGS. This qualifies the restriction in subparagraph 6A(1)(b)(iii) on senior managers of a Commonwealth authority from serving on its audit committee. The amendment also adds a note explaining that AGS and the CGA are established under the Judiciary Act 1903