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1996
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
COMMONWEALTH
SERVICES DELIVERY AGENCY BILL 1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of Senator the Hon Jocelyn Newman, Minister for Social
Security)
79579 Cat. No. 96 5537 9 ISBN 0644
480106
COMMONWEALTH SERVICES DELIVERY AGENCY BILL
1996
OUTLINE AND FINANCIAL IMPACT STATEMENT
This Bill will establish a new statutory authority, to be formally known as
the Commonwealth Services Delivery Agency (the Agency). The Agency will be
responsible for delivering various Commonwealth services.
Financial
impact: 1996-97 $23.7m (costs)
(net outlays) 1997-98 $25.1m
(savings)
1998-99 $53.6m (savings)
1999-2000 $66.2m
(savings)
COMMONWEALTH SERVICES DELIVERY AGENCY BILL
1996
1. Summary of the measures contained in the
Bill
This Bill establishes a new statutory authority, to be formally known as the
Commonwealth Services Delivery Agency (the Agency). The Agency will be
responsible for delivering various Commonwealth services.
2. Background
In the 1996 Budget, the Government announced its intention to create a new
statutory authority, that would be responsible for delivering various
Commonwealth Government services that are currently provided by a variety of
Commonwealth departments. This Bill gives effect to that commitment, by
establishing a body that will be formally known as "the Commonwealth Services
Delivery Agency" (the Agency).
Initially, the Agency will deliver all
programs and services currently administered by the Department of Social
Security (DSS), plus some services currently provided by the Department of
Employment, Education, Training and Youth Affairs (DEETYA) and the Department of
Health and Family Services. In the longer term, it is intended that the Agency
will deliver services that are the policy responsibility of other Commonwealth
Government departments. The provision of services by the Agency will be
implemented through service arrangements between the responsible Commonwealth
Government departments and authorities and the Agency.
3. Clauses involved in the
measures
Part 1 - Preliminary clauses
Clause 1 sets out how the Act is to be cited.
Clause 2
sets out when the Act is to commence.
Clause 3 sets out
various definitions that are to apply in relation to the Act.
Clause
4 provides that the Act binds the Crown in each of its capacities but that
nothing in the Act makes the Crown liable to be prosecuted for an
offence.
Clause 5 provides that the Act extends to the Territory
of Cocos (Keeling) Island and to the Territory of Christmas Island.
Part 2 - Establishment, functions and powers of the
Agency
Clause 6 provides for the establishment of the
Agency.
Clause 7 provides for the Chief Executive Officer of the
Agency to enter into service agreements with Commonwealth authorities for the
provision of Commonwealth services.
Clause 8 sets out the
functions of the Agency.
Clause 9 provides for the Minister to
give directions about the Agency's functions.
Clause 10 sets out
the obligations of the Minister in relation to directions given under clauses 8
or 9.
Part 3 - The Board of Management of the
Agency
Clause 11 provides for the establishment of the Board of Management of
the Agency (the Board).
Clause 12 sets out the Board's functions
and powers.
Clause 13 provides for the Minister to give directions
to the Board.
Clause 14 provides for the Minister to notify the
Board of the general policies of the Commonwealth Government and also obliges
the Board to ensure that the policies are carried out.
Clause 15
provides for the Minister to ask the Board for information about the
operation of the Agency and also obliges the Board to give the Minister the
information requested.
Clause 16 provides for the membership of
the Board.
Clause 17 provides for the appointment of an acting
Chairman of the Board, in the absence of the Chairman.
Clause 18
provides for the Board, by resolution, to delegate any or all of its functions
or powers to a member of the Board or to an employee of the
Agency.
Clause 19 provides for the Chairman to delegate any or all
of his or her functions or powers to the Chief Executive Officer of the
Agency.
Clause 20 provides for procedures to be followed in
relation to meetings of the Board.
Clause 21 requires members of
the Board with a direct or indirect pecuniary interest in any matter before the
Board to disclose that interest. It also sets out steps to be followed in
relation to such a disclosure.
Clause 22 provides for the Board to
regulate proceedings at meetings as it thinks fit (but subject to the formal
requirements set out in clauses 20 and 21).
Clause 23 provides for
the period of appointment of certain members of the Board.
Clause 24
provides for the remuneration of certain appointed members of the
Board.
Clause 25 prohibits appointed members of the Board from
engaging in paid employment that, in the Minister's opinion, conflicts with the
proper performance of the member's duties.
Clause 26 provides for
appointed members to resign from the Board.
Clause 27 provides for
the terms and conditions of appointed members of the Board that are not set out
in the Bill.
Clause 28 provides for the termination of the
appointment of an appointed member on various specified grounds.
Part 4 - The Chief Executive Officer and
employees
Clause 29 provides for the appointment of a Chief Executive Officer
(CEO) of the Agency.
Clause 30 provides for the terms and
conditions of the CEO.
Clause 31 provides for the Board to appoint
an acting CEO.
Clause 32 provides that the CEO is to be
responsible for the day-to-day administration and the operations of the
Agency.
Clause 33 provides for the CEO to delegate any or all of
his or her functions or powers to an employee of the Agency.
Clause 34
provides for the resignation of the CEO.
Clause 35 provides
for the staff of the Agency.
Clause 36 provides for the CEO to
make arrangements with the principal officer of a Commonwealth authority for the
services of officers or employees of that authority to be made available to the
Agency.
Clause 37 provides for the CEO to engage
consultants.
Part 5 - Miscellaneous
Clause 38 provides for the protection of the names and symbols of the
Agency.
Clause 39 provides for the application of the Audit Act
1901 to the Agency.
Clause 40 provides for the preparation and
tabling in the Parliament of the Agency's annual report.
Clause 41
provides for the Governor-General to make regulations for the purposes of the
Act.
4. Explanation of the measures
Clause 1 provides that the Act may be cited as the Commonwealth
Services Delivery Agency Act 1996.
Clause 2 provides that Act
is to commence on 1 July 1997.
Clause 3 sets out various
definitions that are to apply in relation to the Act. The provisions are
self-explanatory.
Clause 4(1) provides that the Act binds the
Crown in each of its capacities. This makes it clear that the Act is to bind
the Crown in the right of the States and the Northern Territory. Clause
4(2) provides that nothing in the Act makes the Crown liable to be
prosecuted for an offence.
Clause 5 provides that the Act extends
to the Territory of Cocos (Keeling) Islands and to the Territory of Christmas
Island. This is in line with the fact that section 1362 of the Social
Security Act 1991 and section 5A of the Student Assistance Act 1973
extend the application of those Acts to those territories.
Part 2
of the Bill provides for the establishment, functions and powers of the
Agency. Clause 6(1) provides for the establishment of a body known as
"the Commonwealth Services Delivery Agency" (the Agency). Clause 6(2)
provides that the Agency comprises the Board of Management of the Agency,
the Chief Executive Officer of the Agency and the employees of the
Agency.
Clause 7(1) provides that the Chief Executive Officer of
the Agency may enter into service arrangements with the principal officers of
Commonwealth authorities for the provision of Commonwealth services. "Principal
officer" is defined in clause 3 as being the Secretary of a Department of
State or, in the case of a Commonwealth authority, the person identified in
regulations (made under this legislation) as being the principal
officer.
"Commonwealth authority" is defined in clause 3 as a
Department of State or a body (other than the Agency) established for a public
purpose, by or under a law of the Commonwealth. "Commonwealth service" is also
defined in clause 3, as meaning a service, benefit program or facility
for some or all members of the public that is provided by the Commonwealth,
whether under an enactment or otherwise. These definitions therefore limit the
Chief Executive Officer's power to enter into service
arrangements.
Clause 7(2) provides that arrangements for the
provision of Commonwealth services may include arrangements for doing anything
incidental, conducive or related to the provision of the services, including
(for example):
· the Chief Executive Officer
or the employees of the Agency being able to exercise powers or functions
delegated to them under specified enactments;
and
· the determination (by the Chief
Executive Officer or the employees of the Agency) of a person's eligibility for,
or entitlement to receive or have access to, Commonwealth services.
What
the Bill envisages is that powers under the Social Security Act 1991 and
the Student and Youth Assistance Act 1973 (for example), that currently
reside in the Secretaries of the Department of Social Security and the
Department of Employment, Education, Training and Youth Affairs, respectively,
will, as part of the service arrangements, be delegated by those Secretaries to
the Chief Executive Officer or the employees of the Agency. This would then
enable persons acting on behalf of the Agency to determine eligibility, etc for
the benefits and payments payable under the relevant enactments. Such persons
would, however, exercise these powers as delegates of the relevant
Secretary.
Clause 8 provides that the functions of the Agency
are:
· to provide Commonwealth services (as
defined in clause 3) in accordance with service arrangements (as defined
in clause 7);
· to do anything else
included in the service arrangements that is incidental, conducive or related to
the provision of the services;
· to carry out
any functions conferred on the Agency under any other
Act;
· to carry out any function that the
Minister, by written notice to the Chairman of the Board of Management of the
Agency, directs the Agency to perform;
and
· to do anything that is incidental,
conducive or related to the performance of any of its functions.
This
clause makes it clear that the Agency's specific functions emanate from service
arrangements entered into under clause 7, other Acts and from written
directions given by the Minister. In the case of the latter, clause 8(2)
provides that such written directions are disallowable instruments for the
purposes of section 46A of the Acts Interpretation Act 1901 (meaning that
the directions must be tabled in both Houses of the Parliament and are subject
to disallowance by either House).
Clause 9(1) provides that the
Minister can give the Board of Management of the Agency (through the Chairman)
written directions about the performance of the Agency's functions. Clause
9(2) provides that details of any such directions must be included in the
annual report of the Agency for the relevant year. Clause 9(3) provides
that the Board of Management must ensure that any such directions are complied
with.
Clause 10(1) provides that the Minister, before giving a
direction under paragraph 8(1)(c) - ie a direction that the Agency carry
out certain functions - or under clause 9 - ie about the performance of
the Agency's functions - must seek the advice or comments of the Board of
Management of the Agency about the impact of the proposed direction on the
Agency's operations. The Minister is required to seek the advice or comments by
notice in writing.
Clause 10(2) provides that the Minister must,
in giving a relevant direction, have regard to any advice or comments given by
the Board of Management of the Agency. Clause 10(3) further provides
that if the Minister subsequently gives a direction, particulars of any advice
or comments given under this provision must be included in the annual report of
the Agency for the financial year in which the direction was
given.
Part 3 of the Bill provides for the Board of Management of
the Agency. Clause 11 provides for the establishment of the Board of
Management of the Agency (the Board).
Clause 12 sets out the
Board's functions and powers. Clause 12(1) provides for the functions of
the Board, which are as follows:
· to decide
the Agency's goals, priorities, policies and strategies;
and
· to ensure that the Agency's functions
are properly, efficiently and effectively performed.
These functions are
expressed to be "subject to this Act and any other enactment". This means that
they are to be read subject to the specific provisions contained in this Bill
and subject to the requirements of other legislation (such as, for
example, the Audit Act 1901 or the Public Service Act
1922).
Clause 12(2) provides that the Board has the power to
do all things necessary or convenient to be done for or in connection with the
performance of its functions.
Clause 13(1) provides for the
Minister to give directions to the Board about the performance of its functions,
the exercise of its powers or the conduct of its meetings, or in relation to the
terms and conditions of appointment of the Chief Executive Officer of the
Agency. Such directions are to be given by written notice to the Chairman of
the Board.
Clause 13(2) provides that details of any such
directions must be included in the annual report of the Agency for the relevant
year. Clause 13(3) provides that the Board must comply with any such
directions.
Clause 14(1) provides for the Minister, by written
notice to the Chairman, to notify the Board of the general policies of the
Commonwealth Government. Clause 14(2) provides that the Board must
ensure that the policies are carried out.
Clause 15(1) provides
that the Minister may ask the Board for information about the operation of the
Agency. Clause 15(2) provides that the Board must, within a reasonable
time, give the Minister the information requested. Clause 15(3) provides
that the Board must ensure that the information given is
accurate.
Clause 16(1) provides that the Board consists
of:
· a Chairman;
and
· the Chief Executive Officer of the
Agency; and
· at least 4 other
members.
Clause 16(2) provides that at least 2 of the "other
members" must be persons who are not principal officers of Commonwealth
authorities (as defined in clause 3).
Clause 16(3) provides
that the members of the Board, other than the Chief Executive Officer, are to be
appointed by the Minister. Clause 16(4) provides that members are to be
appointed on a part-time basis.
Clause 17(1) provides that the
Minister may appoint a member of the Board, other than the Chief Executive
Officer, to act as Chairman during any period that the office is vacant or
during any period when the Chairman is absent from duty or is otherwise unable
to perform the functions of his or her office.
Clause 17(2)
provides that anything done by a person purporting to act under an
appointment made under this clause is not invalid merely
because:
· the occasion for the appointment
had not arisen; or
· there was any defect or
irregularity in or in connection with the appointment;
or
· the appointment had stopped having
effect; or
· the occasion for the person to
act had not arisen or had stopped.
This ensures that action taken by an
acting Chairman will not be invalid merely because of a technical defect in
relation to the appointment.
Clause 18(1) provides that the Board
may, by resolution, delegate any or all of its functions or powers to a member
of the Board or to an employee of the Agency. Clause 18(2) provides
that, in exercising such a power, a delegate must comply with any directions of
the Board. Clause 18(3) provides that a delegation under this clause (a)
may be revoked (by resolution of the Board) and (b) continues in force in spite
of any changes to the membership of the Board.
Clause 19 provides
that the Chairman may delegate any or all of his or her functions or powers to
the Chief Executive Officer of the Agency.
Clause 20 provides for
procedures to be followed in relation to meetings of the Board.
Clause 20(1) provides that the Board must hold such meetings as are
necessary for the efficient performance of its functions. Clause 20(2)
provides that the Chairman of the Board may convene a meeting at any time
and that he or she must convene a meeting on receipt of a written request
from at least 2 other members of the Board. Clause 20(3) provides that
the Minister may also convene a meeting of the Board at any
time.
Clause 20(4) provides that the Chairman must, if present at
a meeting of the Board, preside at that meeting. Clause 20(5) provides
that, if the Chairman is not present at a meeting, the members present at the
meeting must elect one of their number to preside.
Clause 20(6)
provides that a member of the Board is not entitled to vote at a
meeting if the member is the principal officer of a Commonwealth authority
and has entered into a service arrangement with the Agency that is
currently in force. This is intended to ensure that, for example, the
Secretaries of Commonwealth Government departments with whom the Agency has
entered into service arrangements are not in positions of conflict of
interest.
It should be noted that "principal officer" and "Commonwealth
authority" are defined in clause 3 of the Bill and that the definition of
"Commonwealth authority" expressly excludes the Agency. This ensures that the
Chief Executive Officer of the Agency is entitled to vote at meetings of the
Board.
Clause 20(7) provides that, at a meeting, a quorum consists
of a majority of the members of the Board who are entitled to vote. Clause
20(8) provides that questions arising at a meeting are to be determined by a
majority of the members of the Board that are present and
voting.
Clause 21(1) provides that a member of the Board who has a
direct or indirect pecuniary interest in any matter that is being considered, or
is about to be considered, by the Board must disclose that interest at a meeting
of the Board. Clause 21(2) provides that such disclosure must be made as
soon as the relevant facts have come to the member's knowledge. It further
provides that the disclosure must be recorded in the minutes of the
meeting.
Clause 21(3) provides that, unless either the Board or
Minister determines otherwise, a member who discloses an interest under this
clause must not be present during any deliberation of the matter by the Board
and must not take any part in any decision of the Board on the matter.
Clause 21(4) further provides that a member affected by this clause must
not be present during any deliberation or "determination otherwise" (ie to
overrule the disqualification from taking part in the decision) under clause
21(3).
Clause 22 provides for the Board to regulate
proceedings at meetings as it thinks fit (but subject to the formal requirements
set out in clauses 20 and 21). This allows the Board to provide for such other
detailed procedures for meetings as may be necessary.
Clause 23(1)
provides that the period of appointment of an appointed member (as defined
in clause 3) shall be for such period, not exceeding 3 years, as is
specified in the instrument of appointment. It further provides that appointed
members are eligible for re-appointment.
Clause 23(2) provides
that a member of the Board who is a principal officer of a Commonwealth
authority holds office during the Minister's pleasure.
Clause 24(1)
provides that an appointed member is to be paid the remuneration determined
by the Remuneration Tribunal. It further provides that, if no such
determination is in force, an appointed member is to be paid such remuneration
as is prescribed by regulations made under this Act. Clause 24(2)
provides that an appointed member is to be paid the allowances prescribed by
regulations made under this Act. Clause 24(3) makes it clear, however,
that the provisions set out in this clause are to be read subject to the
Remuneration Tribunal Act 1973.
Clause 25 prohibits
appointed members of the Board from engaging in paid employment that, in the
Minister's opinion, conflicts with the proper performance of the member's
duties.
Clause 26 provides that an appointed member of the Board
can resign by giving the Minister a written resignation.
Clause 27
provides that an appointed member of the Board holds office on such terms and
conditions (if any) in relation to matters not specifically provided for as are
determined by the Minister.
Clause 28(1) provides that the
Minister may terminate the appointment of an appointed member for misbehaviour
or physical or mental incapacity. Clause 28(2) provides that the
Minister must terminate the appointment of an appointed member if he or
she:
· becomes bankrupt, etc;
or
· without reasonable excuse, contravenes
the requirements of clause 21 (ie fails to disclose an interest in a
matter before the Board); or
· is absent,
without reasonable excuse, from 3 consecutive meetings of the Board;
or
· has, in the Minister's opinion, performed
his or her functions as a member unsatisfactorily for a significant period of
time.
Clause 28(3) provides that if a member of the Board who is a
principal officer of a Commonwealth authority ceases to be the principal officer
of that authority then he or she also ceases to be a member of the
Board.
Part 4 of the Bill deals with the Chief Executive Officer and
employees of the Agency. Clause 29(1) provides for the appointment of a
Chief Executive Officer (CEO) of the Agency. Clause 29(2) provides that
the CEO is to be appointed by the Board (in writing), after consultation between
the Chairman of the Board and the Minister. Clause 29(3) provides that
the CEO is to be appointed on a full-time basis.
Clause 30(1)
provides that the CEO holds office on such terms and conditions (including
remuneration and allowances) as a re determined by the Board (in writing).
Clause 30(2) provides that the CEO must not be present during any
deliberation by the Board on the remuneration and allowances payable to the CEO
and, further, must not take part in any decision by the Board on such a matter.
Clause 30(3) provides that the Board may, at any time, terminate the
appointment of the CEO.
Clause 31(1) provides that the Board may
appoint a person to act as CEO during any period that the office is vacant or
during any period when the CEO is absent from duty or is otherwise unable to
perform the functions of his or her office.
Clause 31(2) provides
that anything done by a person purporting to act under an appointment made under
this clause is not invalid merely
because:
· the occasion for the appointment
had not arisen; or
· there was any defect or
irregularity in or in connection with the appointment;
or
· the appointment had stopped having
effect; or
· the occasion for the person to
act had not arisen or had stopped.
This ensures that action taken by an
acting CEO will not be invalid merely because of a technical defect in relation
to the appointment.
Clause 32 provides that the CEO is, under the
Board, to be responsible for the day-to-day administration of the Agency and the
control of its operations. This clause is, however, expressed to be "subject to
this Act and any other enactment", which means that it is to be read subject to
the specific provisions contained in this Bill and subject to the
requirements of other legislation (such as, for example, the Audit Act
1901 or the Public Service Act 1922).
Clause 33
provides that the CEO may delegate any or all of his or her functions or
powers to an employee of the Agency. The clause expressly provides that this
includes functions delegated to the CEO in accordance with any service
arrangements under clause 7.
Clause 34 provides that the
CEO may resign by giving the Chairman of the Board a written
resignation.
Clause 35(1) provides that, subject to clauses 35,
36 and 37, the staff of the Agency are to be persons employed under
the Public Service Act 1922. Clause 35(2) provides that the CEO
has all the powers of, or exercisable by, a Secretary under the Public
Service Act 1922, so far as those powers relate to a branch of the
Australian Public Service comprising the officers referred to in clause
35(1), as if that branch were a separate Department of the Australian Public
Service. This means that, in general terms, the CEO of the Agency has the same
powers as a Secretary under the Public Service Act 1922.
Clause
35(3) provides that, in addition to the staff referred to in clause 35(1)
(ie those employed under the Public Service Act 1922), the CEO may
employ persons on terms and conditions determined by the Board (in writing).
This gives the CEO the flexibility of being able to employ persons from outside
the Australian Public Service, in addition to those staff appointed under the
Public Service Act 1922.
Clause 36 provides that the CEO
may make arrangements with the principal officer of a Commonwealth authority for
the services of officers or employees of that authority to be made available to
the Agency. This gives the CEO the flexibility of being able to have access, as
required, to the skills and services of persons from other Commonwealth
authorities. It is envisaged that this will be particularly useful as the
Agency takes on the responsibility of delivering further Commonwealth
services.
Clause 37(1) provides that the CEO may engage as
consultants persons with suitable qualifications and expertise. Clause
37(2) provides that the terms and conditions of engagement of such persons
are to be determined by the Board.
Part 5 of the Bill contains
various "miscellaneous" provisions. Clause 38 provides for the
protection of the names and symbols of the Agency against unauthorised use. It
protects the use of the Agency's "protected name" and "protected symbol".
"Protected name" is defined in clause 38(4) as the term "Commonwealth
Services Delivery Agency" or such other names as are prescribed (ie by
regulation). "Protected symbol" is defined as the Agency's official symbol,
whose design is set out in the regulations. It is intended that regulations
prescribing such other names as a required and also setting out the Agency's
official logo will be promulgated at around the same time as the Bill's coming
into force (ie 1 July 1997).
Clause 39(1) provides that, if
the Audit Act 1901 has not been repealed on or before the "commencing
day" of this Bill, then that Act will apply in relation to the Agency (and until
it is repealed) as if:
· references to the
Secretary were references to the Chairman of the Board of Management;
and
· references to the Department were
references to the Agency; and
· subsection
2AB(2) of the Audit Act 1901 were repealed.
This means that, until
such time as the Audit Act 1901 is repealed, the Chairman of the Board of
the Agency will have the same responsibilities under that Act as do the
Secretaries of Departments of State.
Clause 39(2) provides that
"commencing day" means the day that this Act commences
(ie 1 July 1997).
It should be noted that clause 39
(and, to a lesser extent, clause 40) anticipates the passage of the
proposed Financial Management and Accountability Bill. The application of the
Audit Act 1901 provided for in the Bill (and the annual reporting
requirements contained in the Bill) is consistent with the understanding that,
at such time as the Financial Management and Accountability Bill is enacted, the
Agency will be a body to which that legislation will apply.
Clause
40(1) provides that the Chairman of the Board must, as soon as is
practicable after 30 June of each year, prepare and give to the Minister a
report of the operations of the Agency during the year that ended on that 30
June. Clause 40(2) provides that the Minister must cause a copy of such
a report to be laid before each House of the Parliament within 15 sitting days
of that House after the day on which he or she received the
report.
Clause 41 provides that the Governor-General may make
regulations prescribing matters that are required or permitted to be prescribed
for the purposes of the Bill or are necessary or convenient to be prescribed for
carrying out or giving effect to the Bill.
5. Commencement
The Act commences on 1 July 1997 (clause 2).