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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
NATIONAL TRANSPORT COMMISSION BILL
2003
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Transport and Regional Services,
the
Honourable John Anderson, MP)
NATIONAL TRANSPORT COMMISSION BILL 2003
The main purpose of the National Transport Commission Bill 2003 (the
Bill) is to establish the National Transport Commission (the Commission), an
independent statutory body with responsibility for developing, monitoring and
maintaining uniform or nationally consistent regulatory and operational reforms
relating to road, rail and intermodal transport. The Bill also provides a
mechanism for setting out model legislation and other instruments in the
regulations. The States and Territories, and the Commonwealth where
appropriate, may then either reference or enact the substance of the model
legislation in their own law thereby establishing and maintaining a nationally
agreed regulatory framework.
The Commission will replace the National
Road Transport Commission (NRTC) which currently has the responsibility for
progressing road transport regulatory reforms. The NRTC was established under
the National Road Transport Commission Act 1991 (NRTC Act) and is
directly accountable to Commonwealth, State and Territory Ministers through the
Australian Transport Council (ATC), as will be the Commission.
The NRTC
Act provides for its own sunset on 14 January 2004 and requires the ATC to
report to Heads of Government at least 12 months before that date, advising
whether the NRTC Act should cease to be in force or be re-enacted (including in
a modified form). In fulfilment of this requirement, a Review of the NRTC Act
was conducted. The ATC recommended to Heads of Government the continuation of
the road transport regulatory reform process, with increased emphasis on
maintenance of reforms and the extension of the NRTC reform model to rail and
intermodal operations, requiring replacement of the NRTC by the Commission. All
Heads of Government subsequently agreed to ATC developing legislation for this
purpose and ATC Ministers have subsequently agreed to the current form of the
Bill.
The provisions of the proposed Act will be supported by an
inter-governmental agreement (the Agreement) that will serve to formalise the
cooperative arrangements between the Commonwealth, States and Territories and
define the roles and responsibilities of the Commission, ATC and the
jurisdictions. The Agreement will set out the voting arrangements for the ATC
when it determines, agrees, approves or resolves matters provided for in the
proposed Act. The Agreement is currently being finalised for signature by
Commonwealth, State and Territory Transport Ministers prior to the commencement
of the Bill.
The Bill largely replicates the NRTC Act and reflects
standard practice regarding the appointment of Commissioners, remuneration and
procedural and reporting requirements for an organisation of this kind.
The Bill has seven parts:
Part 1 – Preliminary:
This Part includes the purpose of the proposed Act and definitions. The term
Australian Transport Council is defined so that only one Minister
represents each Australian jurisdiction when dealing with matters relevant to
the proposed Act.
Part 2 – Establishment, functions and powers
of Commission: This Part provides for the legal status of the Commission,
the functions and powers it will have and how they are to be used in accordance
with the Agreement and its accountability to ATC. The regulations will provide
a mechanism for setting out model legislation (to be developed in the future by
the Commission and road transport legislation (developed previously by the
NRTC). In performing its functions and exercising its powers, the Commission is
required to consult broadly.
Part 3 – Constitution of
Commission: This Part details the membership provisions of the Commission,
which comprises a full-time Chief Executive Officer and five part- time ordinary
members. There are also provisions dealing with acting arrangements when there
are Chair, Deputy Chair and ordinary member vacancies.
Part 4 –
Operations of Commission: This Part provides for the Commission to prepare
strategic plans for ATC and convene Commission meetings with a quorum of 3
ordinary members. Resolutions of the Commission are to be made by a majority
vote at meetings but can also be made without a meeting if a majority of
ordinary members indicate agreement. There is a requirement on Commission
members to disclose potential conflicts of pecuniary interest. The Commission
may constitute committees to assist in the performance of its functions and the
exercise of its powers.
Part 5 – Finance: This Part
provides for the Commonwealth, States and Territories to pay money to the
Commission and states that this money is to be used in accordance with the
Commission’s strategic plan and any applicable work program. The
Commission will prepare estimates in accordance with directions of ATC. The
Commission is required to prepare an annual report for tabling in the
Commonwealth Parliament, bank and invest its monies, and keep accounting records
in accordance with the certain provisions of the Commonwealth Authorities and
Companies Act 1997.
Part 6 – Chief Executive Officer,
staff and consultants: This Part sets out the provisions relating to the
Commission’s Chief Executive Officer (CEO), other staff and consultants.
The CEO is to be appointed by the Chair on the recommendation of the ordinary
members of the Commission. The CEO is to be remunerated in accordance with
Remuneration Tribunal determinations and paid allowances as determined by the
Commission. There is also a provision for the ATC to approve other benefits
that are considered to assist or facilitate the CEO in performing the functions
of the position.
Part 7 – Miscellaneous: This Part
allows for delegation by the Commission and ATC of their powers and functions
under the Act and sets out evidentiary provisions for ATC and its predecessor,
the Ministerial Council for Road Transport, under the proposed Act and the NRTC
Act. The NTC Act and Agreement are to be reviewed by the ATC no later than six
years from the Act's commencement and every six years thereafter and a report on
the review to be provided Heads of Government. A broad regulation making power
is included.
The Commonwealth, States and Territories will jointly fund the
establishment and running costs of the NTC, as is currently the case with the
NRTC. The ATC has agreed that the Commonwealth will contribute a 35 per cent
share of costs with the remainder being shared by the States and Territories.
ATC has agreed to a total initial budget of $7 million for the work of the NTC
in FY 2003/04. The Commonwealth’s share of this initial budget is $2.45
million and an appropriation has been made in the 2003-04 Budget.
NATIONAL TRANSPORT COMMISSION BILL 2003
1. This clause provides for the Bill, when passed, to be cited as the
National Transport Commission Act 2003.
2. This clause deals with the commencement of the proposed Act and
provides for sections 1-2 to commence on Royal Assent and sections 3-52 to
commence on a day to be fixed by Proclamation. This will allow a seamless
transition between the National Road Transport Commission (NRTC) and the
National Transport Commission, following the repeal of the National Road
Transport Commission Act 1991.
If the provisions specified in item
2 of sub clause 2(1) of the Bill do not commence within nine months of the Act
receiving Royal Assent they will come into operation at the end of that
nine-month period.
3. This clause outlines the purpose of the proposed Act, which is to
establish a National Transport Commission (the Commission) and provide a
mechanism to make regulations setting out model legislation and other
instruments relating to road, rail and intermodal transport.
4. This clause defines certain terms used in the proposed Act. These
terms include Australian Transport Council which, for the purposes of the
Act, is constituted so that only one Minister representing each
Australian jurisdiction deals with matters relevant to the Act.
5. This clause provides for the establishment of the Commission, which
will be a body corporate with the usual attributes (perpetual succession, a
common seal, the capacity to acquire and dispose of property, and the capacity
to sue and be sued). The Commission will be responsible for the use of its
common seal and courts and judicial persons will be required to accept documents
bearing the seal as Commission documents and presume that the seal was properly
made.
6. The functions and powers of the Commission are specified in this
clause. The Commission’s functions and powers will be those set out in
the Agreement, the Act, and any conferred on the Commission by the Australian
Transport Council (ATC) or by another law of the Commonwealth or a State or
Territory.
One of the Commission’s primary functions will be to
develop uniform or nationally consistent regulatory and operational arrangements
for road, rail and intermodal transport and recommend these arrangements to the
Australian Transport Council. As set out in detail in the Agreement, another
key function of the Commission will be to monitor the extent to which
jurisdictions have implemented agreed regulatory and operations arrangements and
regularly report to the ATC.
The Commission will have the power to do
whatever is necessary to perform its functions and will be required to perform
its functions and exercise its powers in accordance with the Agreement so far as
is applicable. In doing so the Commission must have regard to the principles
and objectives set out in the Agreement, and is to comply with all provisions in
the Agreement that apply to the Commission.
7. This clause provides for regulations to be made setting out model
legislation relating to road, rail and intermodal transport developed by the
Commission or its predecessor the National Road Transport Commission. The
regulations will provide a single reference point for such model legislation,
which the States and Territories may then reference or adopt the substance of in
their own law. The model legislation will not be legally enforceable and may
apply, adopt or incorporate other material as amended from time to
time.
Sub clause 7(4) provides for regulations made for the
purposes of this clause to be non-disallowable and therefore not subject to
particular provisions of the Acts Interpretation Act 1901. This is
because the sole function of the regulations is to provide a reference point for
model road, rail and intermodal transport legislation developed by the
Commission and agreed by the ATC. The model legislation will not of itself have
any application or operation in the Commonwealth. There may be instances where
the Commonwealth, like other jurisdictions, seeks to reference or enact the
substance of the model legislation, or parts thereof. If this were to occur
there would be a separate legislative process, which would be subject to the
scrutiny of Parliament.
8. This clause provides for the Commission to report on the performance
or exercise of its powers or functions and advise on any matters related to the
its functions or powers or the ATC’s functions and powers, as they relate
to the Commission. Directions to the Commission to report or advise are to be
given by resolution of the ATC.
9. This clause provides that the Commission must, where appropriate and
practicable, consult broadly in performing its functions and exercising its
powers. This includes consulting with governments and government bodies,
relevant transport industries and industry representatives and representatives
of people who live in regional and remote areas.
10. This clause provides that the Commission may only develop vehicle
noise or emission standards in conjunction with the National Environment
Protection Council.
11. This clause provides that the members of the Commission consist of
the Chief Executive Officer and 5 ordinary members and that the Commission can
operate unless there are more than 2 ordinary member vacancies. This is
consistent with the meeting requirement set out in clause 29 where 3 ordinary
members constitute a quorum.
12. This clause provides for the Minister to appoint ordinary members of
the Commission, following a resolution of the ATC.
13. This clause provides for the Minister to appoint a Chair and Deputy
Chair of the Commission from among the ordinary members, following a resolution
of the ATC . The Chair or Deputy Chair cease to hold their respective positions
if they cease to be ordinary members.
14. This clause provides that ordinary members of the Commission are
appointed on a part-time basis.
15. This clause provides that an ordinary member of the Commission holds
office for a specified period not exceeding three years.
16. This clause deals with arrangements for payment of ordinary
members’ remuneration and allowances and provides that ordinary members of
the Commission will be paid remuneration determined by the Remuneration
Tribunal. If there is no such determination, then their remuneration may be
determined by a resolution of the ATC.
Sub-clause 16(2) provides
that an ordinary member of the Commission may be paid allowances as determined
by a resolution of the ATC.
17. This clause provides that the ATC may determine other benefits for an
ordinary member, if the ATC considers that the benefits will assist an ordinary
member in, or place an ordinary member in a position that may facilitate, the
performance of his or her functions. Any such benefits are payable out of the
Commission’s funds.
18. This clause provides that an ordinary member may resign his or her
appointment by writing to the Minister
19. This clause set outs the circumstances under which the Minister may
terminate an ordinary member’s appointment. Any termination must be
agreed by a resolution of the ATC.
20. This clause provides that an ordinary member may be granted leave of
absence from a meeting of the Commission if agreed by a resolution of the
ATC.
21. This clause provides for terms and conditions of office for an
ordinary member, not otherwise provided for in the Act, to be determined by a
resolution of the ATC.
22. This clause deals with arrangements for acting appointments for the
Chair, Deputy Chair, and ordinary members of the Commission. If there is a
Deputy Chair, he or she is to act as Chair when there is no Chair or if the
Chair is absent from duty, overseas or unable to perform his or her duties. Any
other acting appointments are to be made in writing by the Minister, following a
resolution of the ATC.
Sub-clause 22(7) sets a limit of 12
months to any acting arrangement under this clause.
Sub- clause
22(8) provides that the actions of acting appointees would not be invalid
because of technical or other grounds relating to the person’s
appointment.
23. This clause requires the Commission to prepare a draft strategic
plan at least once a year that covers a period of 3 financial years.
24. This clause requires the Commission to consult with the National Environment Protection Council when preparing the draft strategic plan. This provision will ensure that environmental considerations are taken into account at the strategic planning stage of the Commission's work.
25. This clause sets out the arrangements for approval of the draft
strategic plan by the ATC and requires the Commission to publish the final
strategic plan.
26. This clauses deals with arrangements for Commission meetings,
including the requirement for a meeting to be convened, if a request for a
meeting is made in writing by two ordinary members other than the Chair.
27. This clause sets out the procedures to apply at meetings, including
arrangements for who presides at a meeting.
Sub-clause 27(5)
provides that, subject to the requirements set out elsewhere in Division 2, the
Commission may determine meeting procedures and is required to keep minutes of
meetings.
28. This clause provides that the Commission may make resolutions outside
a meeting, for example through correspondence.
29. This clause specifies that a quorum for Commission meetings will be 3
ordinary members.
30. This clause provides that questions arising at meetings will be
determined by a majority of the votes of ordinary members present at a meeting.
Clause 31: Disclosure of interests
31. This clause
requires Commission members to disclose to a meeting of the Commission any
pecuniary interest in matters under consideration by the Commission. The clause
also sets out how members are to behave in relation to Commission matters
relevant to that interest. Any disclosure is to be recorded in the meeting
minutes.
32. This clause enables the Commission to establish committees comprising
members and/or other persons to assist it in its role. The Commission may
decide terms and conditions of appointment of committee members and operating
procedures. Any remuneration or allowances are to be paid by the Commission.
33. This clause provides that the Commission is to be paid such money as
the Federal Parliament appropriates for the Commission's purposes. The Minister
for Finance and Administration will be able to direct the amounts in which, and
the times at which, appropriated funds are paid to the Commission.
The
ATC has agreed that the Commonwealth will pay 35 percent of the
Commission’s budget and this has been appropriated in the May 2003
budget.
34. This clause provides that the Commission may also receive money from
the States and Territories.
The ATC has agreed that the States and
Territories will pay 65 percent of the Commissions budget and has determined the
shares of each State and Territory.
35. This clause provides that the Commission's money can consist of money
from the Commonwealth, money from the States and Territories and any other money
paid to the Commission.
36. This clause provides that the Commission will use its money to pay
expenses, charges, obligations or liabilities incurred in performing its
functions and exercising its powers, and to pay remunerations, allowances and
other benefits provided for in the Act.
37. This clause deals with the requirements for the preparation by the
Commission of estimates of receipts and expenditure for each financial
year.
Sub-clause 37(3) provides that unless otherwise agreed by a
resolution of the ATC, the Commission may only spend its money in accordance
with the strategic plan and any applicable work program.
38. This clause provides that the Commission is not a Commonwealth
authority for the purposes of the Commonwealth Authorities and Companies Act
1997 (CAC Act), because it reports to the ATC (comprising Commonwealth State
and Territory Ministers) and is funded jointly by the Commonwealth, States and
Territories. The Commission will however be required to prepare an annual
report for tabling in the Commonwealth Parliament, bank and invest its monies,
and keep accounting records in accordance with Sections 9,18 and 20 and Schedule
1 of the CAC Act, as if it were a Commonwealth authority. This ensures that
there are appropriate accountability requirements for the
Commission.
Sub-clause 38(3) provides that the ATC may, by
resolution, impose requirements on the Commission regarding preparation of an
annual report that replace the Finance Minister’s Orders referred to in
Schedule 1 of the CAC Act.
Sub-clause 38(5) provides that the
Commission’s annual report, which in accordance with section 9 of the CAC
Act is to be provided to the Minister, must also be given to each member of the
ATC.
39. This clause sets out the arrangements for the appointment of the
Chief Executive Officer (CEO) of the Commission.
Sub-clause
39(3) provides that the Commission may direct and provide policies to inform
the CEO's management of the affairs of the Commission.
Sub-clause
39(4) provides that anything done by the CEO for the purposes of the Act
will be taken to have been done by the Commission.
40. This clause deals with the arrangements for the determination and
payment of the CEO’s remuneration and allowance. The clause provides that
the CEO will be paid remuneration determined by the Remuneration Tribunal. If
there is no such determination, then the Commission may determine the
CEO’s remuneration, but any such determination will have no effect unless
agreed by a resolution of the ATC.
41. This clause provides that the Commission may determine other benefits
for the CEO if the Commission considers that the benefits will assist the CEO
in, or place the CEO member in a position that may facilitate, the performance
of his or her functions. Any determination made by the Commission will have no
effect unless agreed by resolution of the ATC. Any benefits are payable out of
the Commission’s funds.
42. This clause provides that the Remuneration Tribunal determines the
CEO’s recreation leave entitlements. Other leave may be granted by the
Commission on conditions it determines
43. This clause provides for terms and conditions of office for the CEO,
not otherwise provided for in the Act, to be determined by the Commission.
44. This clause deals with the arrangements under which the Commission
employs staff.
45. This clause provides that the Commission may employ staff under the
Public Service Act 1999. Those staff and the CEO as the Head constitute
a Statutory Agency for the purposes of the Public Service Act
1999.
46. This clause provides that the Commission may second staff from the
Commonwealth or from State and Territory agencies or statutory authorities.
47. This clause allows the Commission to engage consultants under terms
and conditions that it determines.
48. This clause provides that the Commission may resolve in writing to
delegate any of its functions and powers to certain persons. If those certain
persons are not a member of the Commission or a member of staff, then the
delegation must be agreed to by a resolution of the ATC.
49. This clause provides that the ATC may by a resolution delegate any of
its functions or powers under this Bill to a particular member of the ATC.
50. This clause deals with evidentiary procedures and provides that a
certificate signed by a member of ATC, or a person authorised to sign the
certificate by a resolution of the ATC, is prima facie evidence that the actions
was done or the opinion was formed by the ATC or its predecessor, the
Ministerial Council.
A certificate (document) might be produced under
this clause where it would be impractical for a member or members of ATC to
attend a court hearing to give evidence that the ATC had done an act or thing or
formed an opinion.
Clause 51: Review of operation of Act and
Agreement
51. This clause requires that the Act and the Agreement be
reviewed by the ATC no later than six years after the commencement of the Act
and every 6 years thereafter. On each occasion a Review Report is to be given
to Heads of Government. The Report is to make recommendations as to the future
of the Commission and this Act.
52. This clause enables the Governor-General to make regulations for the
purposes of the Act.