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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN RENEWABLE ENERGY AGENCY BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Energy,
the Honourable Martin Ferguson AM, MP)
AUSTRALIAN RENEWABLE ENERGY AGENCY BILL 2011
GENERAL OUTLINE
This Bill creates a statutory authority, the Australian Renewable Energy Agency
(ARENA) under the Commonwealth Authorities and Companies Act 1997, creates the
statutory position of Chief Executive Officer (CEO) of ARENA and sets out
ARENA's governance and financial arrangements. ARENA will independently
administer Australian Government funding to improve the competitiveness of
renewable energy and related technologies and to increase the supply of renewable
energy, with responsibility for:
· providing financial assistance for the research, development, demonstration and
commercialisation of renewable energy and related technologies;
· developing skills in the renewable energy industry;
· sharing of non-confidential knowledge and information from the projects it
funds; and
· promoting collaboration on renewable energy technology innovation with state
and territory governments and other institutions, including international
governments and institutions.
The Australian Renewable Energy Agency (Consequential Amendments and
Transitional Provisions) Bill 2011 will provide for ARENA to take over responsibility
for funding and administration of existing renewable energy and related technology
innovation projects that are currently administered by the Department of Resources,
Energy and Tourism (RET) and the Australian Solar Institute Limited (ASI Limited).
The Australian Renewable Energy Agency Bill 2011 establishes ARENA's reporting
structure and the offices of the ARENA board and the ARENA CEO. The Bill
ensures office holders have a mix of skills and expertise, to deliver balanced decisions
in terms of project viability and the choice of technology funded. The Bill also
provides for RET staff to undertake ARENA's operational and administrative support.
The Bill sets out ARENA's governance arrangements, determining how ARENA, its
Board and its CEO will operate. These arrangements balance the advantages of
independent and centralised management of renewable energy technology innovation
funding with efficient, appropriate and accountable use of Australian Government
funds. Arrangements include developing a general funding strategy, work plans and
where required, program administrative guidelines to allocate uncommitted funds.
The Bill also establishes ARENA's funding arrangements, which provides long term
funding certainty to ARENA and to the renewable energy industry, through
prescribing the minimum Australian Government funding that ARENA is to receive
each year. This is expected to be the main source of ARENA's funding, although
ARENA's funding arrangements allow for additional funding to be provided, to meet
ongoing funding needs.
ARENA will be required to select projects using merit based principles from a finite
pool of money. It is therefore not considered appropriate that ARENA's decisions
about the provision of financial assistance be subject to any process of merits review.
FINANCIAL IMPACT STATEMENT
Neutral impact on the Australian Government budget.
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ABBREVIATIONS
ARENA Australian Renewable Energy Agency
ASI Limited Australian Solar Institute Limited (ACN 138 300
688)
Board Board of ARENA, established by clause AR4 of the
Bill
CAC Act Commonwealth Authorities and Companies Act
1997
CEO Chief Executive Officer of ARENA, established by
clause CE1 of the Bill
CFO Chief Financial Officer of ARENA, employed under
clause CE12 of the Bill
Climate Change Convention United Nations Framework Convention on Climate
Change done at New York on 9 May 1992, as
amended and in force for Australia from time to
time
C&T Bill Australian Renewable Energy Agency
(Consequential Amendments and Transitional
Provisions) Bill 2011
FMA Act Financial Management and Accountability Act 1997
LI Act Legislative Instruments Act 2003
RET Department of Resources, Energy and Tourism
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NOTES ON CLAUSES
Part 1--Preliminary
Clause 1: Short title
This clause would provide that the Bill, when enacted, may be cited as the Australian
Renewable Energy Agency Act 2011.
Clause 2: Commencement
This clause would provide that the Bill commences on 1 July 2012.
Clause 3: Object
The main object of the Bill is to improve the competitiveness of renewable energy
technologies and increase the supply of renewable energy in Australia by providing
financial assistance for renewable energy technologies.
Clause 4: Definitions
This clause defines key terms used in the Bill. Some of the more significant
definitions are discussed below.
The term `appointed member' is defined to mean a Board member appointed under
clause 30. The Board consists of up to 6 appointed members and the Secretary.
References in the Act to an `appointed member' do not include the Secretary in his or
her capacity as a Board member.
The term `financial assistance' is defined to mean grants, or any other kinds of
assistance specified by the Minister by legislative instrument.
Renewable energy technologies include technologies that use, or enable the use of,
one or more renewable energy sources, where a renewable energy source is one that is
generated from natural resources that can be constantly replenished. These include
geothermal and biomass energy sources.
The term `renewable energy technologies' is defined to include hybrid technologies
and technologies (including enabling technologies) that are related to renewable
energy technologies. Technologies that are related to renewable energy technologies
include, for example, technologies that store energy generated using renewable
energy, technologies that predict renewable energy supply or technologies that assist
in the delivery of energy generated using renewable energy technologies to energy
consumers.
A hybrid technology is one that integrates a renewable energy generation technology
with other energy generation systems. An example of a hybrid technology would be a
power plant which combines solar-based thermal energy with thermal energy from
gas or other renewable energy sources, to provide a combined energy flow that drives
the power generation from the plant.
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The inclusion of hybrid technologies, by improving the economics of renewable
energy projects, can allow ARENA to support more renewable energy projects than
would be possible without hybridisation.
Likewise, ARENA will be managing a number of existing projects that include
hybridisation as well as programs that include hybrid technologies as eligible
technologies.
Clause 5: Extension to external Territories
This clause would ensure that the Act applies in external Territories. This would
mean, for example, that ARENA could fund projects in the external Territories.
Clause 6: Extra-territorial application
This clause would ensure that the operation of the Act extends outside Australia.
It is ARENA's intention to support Australian projects, however this clause would
mean, for example, that projects that included an overseas element would not
automatically be excluded from consideration of funding by ARENA.
Part 2--Australian Renewable Energy Agency
Clause 7: Establishment
This clause would establish ARENA as a body corporate. It must have a corporate
seal, and may sue and be sued. ARENA would be a `Commonwealth authority' for
the purposes of the CAC Act.
Clause 8: ARENA's functions
This clause sets out the functions of ARENA. Its main function would be to provide
financial assistance for research into renewable energy technologies or the
development, demonstration, commercialisation or deployment of renewable energy
technologies. `Financial assistance' includes grants and other forms of financial
assistance as determined by the Minister - see clause 4. `Renewable energy
technologies' includes hybrid technologies and technologies that are related to
renewable energy technologies - see clause 4.
ARENA's other functions would include:
· to collect, analyse, interpret and disseminate information relating to renewable
energy technologies;
· to provide advice to the Minister relating to renewable energy technologies;
and
· to liaise with State and Territory governments and other authorities for the
purpose of facilitating renewable energy projects for which ARENA is
providing or proposing to provide financial assistance.
It will also be possible for regulations to be made conferring additional functions on
ARENA.
Clause 9: General rules about performance of functions
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This clause provides that, in performing its functions, ARENA must:
· act properly, efficiently and effectively;
· ensure that decisions about the provision of financial assistance are based on
merit;
· if appropriate, act collaboratively with other persons, organisations and
governments (including international organisations and foreign governments);
and
· if appropriate, promote the sharing of information about renewable energy
technologies.
The need for ARENA to apply merit based principles applies whether or not
guidelines are developed for a program. Where guidelines are developed, those
guidelines should include merit criteria, and applications are to be assessed against
those criteria.
Clause 10: Provision of financial assistance to be in accordance with general
funding strategy
This clause provides that ARENA must not enter into an agreement for the provision
of financial assistance unless the financial assistance provided for is in accordance
with the general funding strategy that is in force at the time under Subdivision A of
Division 2 of Part 3 of the Bill.
Clause 11: Minister may request ARENA to consider funding for specified
projects
This clause would require ARENA to consider any written request made by the
Minister that ARENA consider providing financial assistance for a particular project.
Where a project is referred to ARENA for consideration, it will be a matter for
ARENA to decide whether financial assistance should be provided. As the Minister
has a very limited power of direction, the Minister could not direct that the particular
project receive financial assistance.
Clause 12: Ministerial approval where grants exceed $50 million
This clause would require ARENA to obtain the written approval of the Minister if
ARENA wishes to make grants totalling more than $50 million for a single project.
Clause 13: Minister may direct ARENA to provide advice
The Minister would be able to direct ARENA, in writing, to provide advice in relation
renewable energy technologies, including the things specifically mentioned in
paragraph 8(d).
A direction given by the Minister to ARENA under this clause would not be a
legislative instrument by virtue of item 5 of the table in section 7 of the LI Act.
Clause 14: Constitutional limits
This clause ensures that ARENA will only be able to perform its functions within the
limits on Commonwealth power imposed by the Constitution. Generally speaking,
ARENA would be likely to exercise its power to provide financial assistance in
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relation to either the corporations power (that is, it would provide financial assistance
to or otherwise for the benefit of a foreign, trading or financial corporation), or in
order to give effect to Australia's obligations under the Climate Change Convention
(that is, it would provide financial assistance in a way which will assist Australia to
meet its obligations under the Climate Change Convention).
Specific mention is made in paragraph 14(g) of the provision of financial assistance to
the Commonwealth. This recognises that ARENA may on occasion fund a
Commonwealth agency in relation to an activity or project consistent with ARENA's
functions.
Clause 15: ARENA's powers
This clause would give ARENA the power to do all things necessary or convenient to
be done for or in connection with the performance of its functions. This includes the
power to enter into contracts, the power to acquire, hold and dispose of real and
personal property and the power to accept, otherwise than on trust, gifts, devises,
bequests or other payments of money. ARENA will not have the power to be a
trustee.
Clause 16: ARENA does not have privileges and immunities of the Crown
This clause would make clear that ARENA does not enjoy the privileges and
immunities of the Crown in right of the Commonwealth, other than those provided by
legislation or the Constitution.
Part 3--Board of ARENA
Division 1--Establishment and functions
Clause 17: Establishment
This clause would establish the Board of ARENA.
Clause 18: Functions of the Board
Sub-clause 18(1) sets out the functions of the Board. These are:
· the functions of the Board under Division 2 of Part 3 of the Bill, relating to
making general funding strategies, guidelines and work plans;
· to decide the other strategies, objectives and policies to be followed by
ARENA; and
· to ensure that ARENA complies with the Bill.
Sub-clause 18(2) would give the Board the power to do all things necessary or
convenient to be done for or in connection with the performance of its functions.
Sub-clause 18(3) would provide that anything done in the name of, or on behalf of,
ARENA by the Board, or with the authority of the Board, is taken to have been done
by ARENA.
Division 2--General funding strategy, guidelines and work plans
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Subdivision A--General funding strategy
Clause 19: General funding strategy
This clause would require the Board to develop a general funding strategy for each
financial year starting with 2012-13. The general funding strategy must state
ARENA's principal objectives and priorities for the provision of financial assistance
during the financial year for which it is developed, and for the next 2 financial years.
In other words, each year there will be a new general funding strategy, which will
relate to a 3 year period ahead.
The general funding strategy must not require ARENA to give financial assistance to
a particular person or for a particular project.
As an example, the funding strategy could describe how ARENA will allocate and
prioritise the provision of funding assistance for the support of research, development,
demonstration and commercialisation of renewable energy technologies to achieve
its aims and objectives. Such a description might include information on:
· the challenges and barriers that financial assistance is intended to overcome
and a strategic overview of how financial assistance will assist in overcoming
those challenges and barriers;
· the broad principles to be adopted in selecting projects and providing
assistance to support renewable energy and related technology innovation; and
· an overview of renewable energy sectors and the proposed priorities for
activity within each sector.
Clause 20: Approval of general funding strategy
General funding strategies developed by the Board would require approval by the
Minister.
This clause would require the Board to give a copy of a general funding strategy to
the Minister for approval. Sub-clause 20(2) would provide that the strategy is a
legislative instrument made by the Minister on the day on which it is approved by the
Minister, but it would exempt the strategy from the operation of section 42 of the LI
Act, relating to disallowance. It is considered that the requirement for each strategy to
be approved by the Minister will ensure sufficient accountability in the preparation of
these instruments. The exemption is consistent with the position of Ministerial
directions to a CAC Act body, which are not legislative instruments by virtue of item
5 of the table in s 7 of the LI Act.
Clause 21: When a general funding strategy for a year is in force
This clause would provide that a general funding strategy for a financial year comes
into force at the later of two possible times, being either the start of the financial year
(if the Minister approved the strategy before the end of the previous financial year), or
the time when the Minister approves the strategy (if the Minister approved the
strategy after the beginning of the new financial year).
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A general funding strategy would cease to be in force when the strategy for the next
financial year comes into force. That is, although general funding strategies would
each cover a three year period, they would be replaced every year.
Clause 22: Variation of general funding strategy
The Board would have the power to vary the general funding strategy that is currently
in force. However, any such variation would require approval by the Minister.
Sub-clause 22(1) would require the Board regularly to review the general funding
strategy that is currently in force and consider if any variations should be made to it.
Sub-clause 22(6) would provide that a variation of a general funding strategy is a
legislative instrument made by the Minister on the day on which it is approved by the
Minister, but it would be exempt the variation from the operation of section 42 of the
LI Act, relating to disallowance. This exemption is included for the same reasons
given in relation to ARENA's general funding strategies (see the discussion of clause
20, above).
Clause 23: General funding strategy to be published on ARENA's website
This clause would require the Board to ensure that the general funding strategy that is
in force from time to time is published on ARENA's website.
Subdivision B--Guidelines
Clause 24: Guidelines
The Board would have the power to develop written guidelines in relation to the
provision of financial assistance by ARENA, and to vary or revoke such guidelines.
Guidelines would be required for a grant program if, under the program, the total of
all grants for a particular project could exceed $15 million.
In some cases, guidelines or a variation or revocation of guidelines would require
approval by the Minister under clause 25.
Sub-clause 24(5) would provide that guidelines developed by the Board, and any
variation or revocation of such guidelines, are not legislative instruments. This
provision is included to assist readers. Guidelines, variations and revocations would
not be legislative instruments as they are not legislative in character, and therefore not
within the meaning of section 5 of the LI Act.
Clause 25: Approval of guidelines for financial assistance in excess of $15 million
Guidelines developed by the Board will require approval by the Minister if the
guidelines are for a grant program under which individual grants, or multiple grants
for the same project, could exceed $15 million.
Sub-clause 25(1) would require the Board to give such guidelines to the Minister, for
his or her approval. This requirement would also apply to any variation of such
guidelines, (unless the variation is of a minor nature) and would apply to any
revocation of such guidelines. If a grant program which is not subject to this clause
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were to be varied so that it became a program to which subclause 24(2) applies, then
ARENA would be required to develop guidelines for the program.
Sub-clause 25(2) would require the Board to inform the Minister of any variation of
such guidelines that is of a minor nature.
Subclause 25(3) specifies the commencement time for guidelines, variations and
revocations.
Clause 26: Guidelines to be published on ARENA's website
This clause would require the Board to ensure that any guidelines that are in force
from time to time are published on ARENA's website.
Subdivision C--Work plans
Clause 27: Work plan
This clause would require the Board to develop a work plan for each financial year,
setting out details of:
· how ARENA's general funding strategy for the financial year is proposed to
be implemented during the year; and
· the main activities proposed to be undertaken by ARENA and the Board
during the year and how they are proposed to be undertaken.
The Board may vary a work plan in writing.
A work plan or variation of a work plan will not require the Minister's approval, but
the Board will be required to give the Minister a draft of each work plan or variation,
and have regard to any comments or requests made by the Minister in relation to the
draft (sub-clause 27(5)). The Board will also be required to give a copy of each
finalised work plan to the Minister (sub-clause 27(1)).
Sub-clause 27(7) would provide that a work plan developed by the Board is not a
legislative instrument. This provision is included to assist readers. A work plan would
not be a legislative instrument as it is not legislative in character, and therefore not
within the meaning of section 5 of the LI Act.
Clause 28: Work plan to be taken into account
This clause would require the Board and the CEO, when performing functions and
exercising powers in a financial year, to take into account the work plan for the
financial year.
Division 3--Board Members
Clause 29: Membership
The Board would consist of up to 6 appointed members and the Secretary of RET.
Clause 30: Appointment of Board members
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This clause would provide that Board members (other than the Secretary) are to be
appointed by the Minister by written instrument, on a part-time basis.
A person would not be eligible for appointment as a Board member unless the
Minister was satisfied that the person has experience or knowledge in at least one of a
list of fields. This is intended to ensure that Board members are drawn from a pool of
appropriately qualified specialists. If legislation is enacted establishing the Clean
Energy Finance Corporation, it is possible that a person could be a member of the
board of ARENA and a director (however described) of the Clean Energy Finance
Corporation.
Clause 31: Chair
This clause would require the Minister to appoint one Board member to be the Chair
of the Board.
Clause 32: Term of appointment
This clause would limit the maximum term of appointment of each Board member
appointed under clause 30 to a period of 2 years, and the maximum continuous period
for which each may hold office to 6 years.
Clause 33: Acting appointments
This clause deals with acting appointments of Board members and of the Chair of the
Board.
Clause 34: Remuneration
This clause deals with the remuneration of Board members who are appointed under
clause 30. It would have effect subject to the Remuneration Tribunal Act 1973.
Sub-clause 34(1) would provide that Board members appointed under clause 30 are to
be paid the remuneration that is determined by the Remuneration Tribunal, provided
that there is an applicable determination in operation. Otherwise, such Board
members are to be paid the remuneration that is prescribed by the regulations.
Clause 35: Leave of absence
This clause deals with the granting of leave of absence to Board members who are
appointed under clause 30.
Clause 36: Disclosure of interests to the Minister
This clause would require Board members to give written notice to the Minister of all
interests, pecuniary or otherwise, that the member has or acquires and that conflict or
may conflict with the proper performance of the member's functions.
Clause 37: Resignation of appointed members
This clause is self-explanatory.
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Clause 38: Termination of appointment of appointed members
This clause would give the Minister the power to terminate the appointment of an
appointed Board member on various grounds.
Clause 39: Other terms and conditions of appointed members
This clause would provide for the Minister to determine any other terms and
conditions, not covered by the Bill, on which appointed members are to hold office.
Division 4--Meetings of the Board
Clause 40: Convening meetings
This clause would require the Board to hold the meetings that are necessary for the
efficient performance of its functions, and provides for the meetings to be held at the
times and places that the Board determines.
The Chair would be required to convene at least 6 meetings of the Board in each
calendar year, and would be required to convene a meeting if requested in writing by
3 or more other Board members or the Minister.
Clause 41: Secretary may nominate alternate to attend Board meetings
This clause would permit the Secretary to nominate a Senior Executive Service (SES)
employee or acting SES employee in RET to attend a particular meeting, or all
meetings of the Board at which the Secretary is not present. The person concerned
would be taken to be a Board member at those meetings.
Clause 42: Presiding at meetings
This clause is self-explanatory.
Clause 43: Quorum
This clause would provide that a quorum at a meeting of the Board is generally
constituted by a majority of the current Board members, but would provide an
exception in a case where a Board member is required to excuse themselves from the
meeting because the Board member has a material personal interest in the matter that
is being considered at the meeting.
Clause 44: Voting at meetings
This clause would provide that questions arising at Board meetings are to be
determined by a majority of Board members present and voting. In the event of an
equality of votes, the person presiding at the meeting would have both a deliberative
vote and a casting vote.
Clause 45: Conduct of meetings
This clause is self-explanatory.
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Clause 46: Minutes
This clause is self-explanatory.
Clause 47: Decisions without meetings
This clause would provide for the Board to determine and implement methods for
making decisions otherwise than at Board meetings.
Division 5--Committees
Clause 48: Committees
This clause would provide for the Board to establish committees to advise or assist in
the performance of ARENA's functions or the Board's functions. Such committees
may be constituted by Board members and/or other persons.
The Board would have the power to determine the terms of reference of each
committee, the procedures to be followed by each committee and the terms and
conditions of appointment of committee members.
Clause 49: Remuneration and allowances
This clause deals with the remuneration of members of committee established by the
Board under clause 48. It would have effect subject to the Remuneration Tribunal Act
1973.
Sub-clause 49(2) would provide that committee members are to be paid the
remuneration that is determined by the Remuneration Tribunal, provided that there is
an applicable determination in operation. Otherwise, committee members are to be
paid the remuneration that is prescribed by the regulations.
Sub-clause 49(3) would provide that committee members are to be paid the
allowances that are prescribed by the regulations.
Part 4--Chief Executive Officer, staff and consultants
Division 1--Chief Executive Officer of ARENA
Clause 50: Establishment
This clause would establish the office of CEO of ARENA.
Clause 51: Role
The CEO would be responsible for the day-to-day administration of ARENA, and
would have the power to do all things necessary or convenient to be done for or in
connection with the performance of his or her duties.
The CEO would be required to act in accordance with any policies and written
directions given by the Board in relation to the performance of the CEO's
responsibilities.
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Sub-clause 51(6) would make clear that a direction given by the Board under sub-
clause 51(4) is not a legislative instrument. This provision is included to assist
readers. Such a direction would not be a legislative instrument as it is not considered
legislative in character and therefore not within the meaning of section 5 of the LI
Act.
Clause 52: Appointment
Clause 52 provides for how the CEO is to be appointed. The CEO would be appointed
by the Minister on the recommendation of the Board. The appointment is to be in
writing and the CEO will hold office on a full-time basis.
The period of the CEO's appointment will be as specified in the instrument of
appointment. While each appointment must not exceed 3 years, the note to sub-clause
52(3) would make clear that the Minister is able to reappoint the CEO at the end of
each term.
Sub-clause 52(4) would prevent the Minister appointing a Board member (whether an
appointed member or the Secretary of RET) as the CEO.
Item 29 of Schedule 2 to the C&T Bill provides for how the first CEO of ARENA is
to be appointed. A special provision for the appointment of the first CEO is required
so that the CEO can be appointed in time to take up his or her office on the day when
ARENA is established.
Clause 53: Acting appointments
This clause would provide that the Minister may appoint an acting CEO during a
vacancy in the office of CEO, or while the CEO is absent or unavailable.
This clause would make clear that the Minister may appoint a Board member (other
than the Secretary) as acting CEO. However, if the Minister appoints a Board member
to act as CEO, it must be on a part-time basis.
The note to this clause refers readers to the rules about acting appointments set out in
ss 33AB and 33A of the Acts Interpretation Act 1901.
Clause 54: Outside employment
This clause would provide that the CEO must not engage in paid employment outside
the duties of the CEO's office without the Minister's approval.
Clause 55: Remuneration
This clause sets out the remuneration arrangements for the office of CEO.
Sub-clause 55(1) would provide that the CEO is to be paid such remuneration as is
determined by the Remuneration Tribunal or, if no determination of that remuneration
is in operation, the CEO is to be paid such remuneration as is prescribed in the
regulations.
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Sub-clause 55(2) would provide that the CEO is to be paid such allowances as are
prescribed in the regulations.
Sub-clause 55(3) would make clear that clause 55 is intended to have effect subject to
the Remuneration Tribunal Act 1973.
Clause 56: Leave
This clause would provide for the leave entitlements of the CEO.
Sub-clause 56(1) would provide that the recreation leave entitlements for the CEO
would be as determined by the Remuneration Tribunal. The Remuneration Tribunal
Act 1973 provides for the Remuneration Tribunal to conduct inquiries into and to
determine the recreation leave entitlements of certain full-time office holders.
Sub-clause 56(2) would provide for the Minister to grant the CEO other forms of
leave of absence (that is, other than recreation leave) on such terms and conditions as
to remuneration or otherwise as the Minister determines.
Clause 57: Disclosure of interests
This clause would require the CEO to give written notice to the Minister of all
material personal interests that the CEO has or acquires and that conflict or could
conflict with the proper performance of the CEO's duties.
Clause 58: Resignation
This clause would provide that the CEO may resign by giving written notice to the
Minister. The resignation would take effect on the day the notice is received by the
Minister, or on a later day specified in the notice.
Clause 59: Termination of appointment
Clause 59 would provide for when and how the appointment of the CEO may be
terminated.
Sub-clauses 59(1) and (2) would provide that the Minister may terminate the CEO's
appointment for misbehaviour or physical or mental incapacity only after the Minister
has consulted the Board.
Sub-clause 59(3) sets out other circumstances where the Minister may terminate the
CEO's appointment. Consultation with the Board would not be required in these
circumstances. However, it would be open to the Minister to consult the Board if the
Minister wished.
Clause 60: Other terms and conditions
This clause would provide for the Minister to determine other terms and conditions
for the office of CEO in relation to matters not covered by the Bill.
Division 2--Staff and consultants
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Clause 61: Chief Financial Officer
This clause would provide for the employment of a person to perform chief financial
officer functions in ARENA (a CFO). The terms and conditions of employment for
the CFO will be as determined by ARENA.
Clause 62: Other staff
Aside from the CEO and CFO, ARENA would not be able to engage or employ staff
of its own (sub-clause 62(2)). Rather, the operational and administrative support for
ARENA would be provided by APS employees who are employed in RET (sub-
clause 62(1)). The Secretary of RET would be required to make such staff available to
assist ARENA (sub-clause 62(3)).
The intention is that the Secretary would delegate relevant employer powers under the
Public Service Act 1999 to the CEO to enable the CEO to effectively manage those
Departmental staff who are performing work for the CEO and ARENA. It is also
intended that the Secretary would direct those staff who are made available to assist
ARENA under this clause to comply with any reasonable directions given by the
CEO.
The Secretary would also delegate relevant powers under the FMA Act to the CEO to
enable the CEO to effectively manage the departmental money and resources required
for the performance of ARENA functions by RET staff.
While performing work for ARENA, staff would remain APS employees so would
continue to be fully bound by the APS Values and Code of Conduct set out in the
Public Service Act 1999. The CEO and CFO would also be bound by the Code of
Conduct as `statutory office holders' in relation to the exercise of their direct or
indirect supervisory duties in relation to APS employees performing work for
ARENA (see section 14 of the Public Service Act 1999 and regulation 2.2 of the
Public Service Regulations 1999).
Clause 63: Consultants
This clause would permit ARENA to engage consultants to provide technical and
specialist advisory services. However, ARENA will not be able to engage consultants
to perform operational or administrative duties of a kind that are performed, or are
capable of being performed, by staff of RET who are made available to ARENA
under clause 62.
The intention is that ARENA should not be able to engage consultants to perform
work that could be done by staff of RET. However, where particular work calls for
technical or specialist skills, ARENA may engaged consultants to perform that work.
The terms and conditions for persons engaged as consultants will be as determined by
ARENA.
Part 5--Finance
This Part deals with the provision of funding for ARENA.
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ARENA's main function would involve the payment of financial assistance.
However, it is not appropriate that ARENA, as a body outside the Commonwealth,
hold large amounts of money which is provided by the Commonwealth, until it needs
that money to meet its obligations under agreements to pay financial assistance.
At the same time, it is important that ARENA is able to enter into agreements to make
payments of financial assistance confident in the knowledge that the money to make
those payments will be available to it when needed.
To achieve these objectives, Part 5 of the Bill would guarantee that a minimum
amount of funding will be available to ARENA, should it require it to meet its
obligations, in each financial year from 2012-13 to 2019-20. If the funding is not used
in a particular financial year, it will roll over to the following year, and so on.
ARENA will be able to request payments from the Commonwealth up to the amount
for the year concerned (including amounts rolled over from previous years) where it
has obligations to meet, and the Commonwealth will be obliged to pay the money to
ARENA, up to the amount specified.
Clause 64: Amounts available for payment to ARENA
Sub-clause 64(1) sets out the amounts which would be available for payment by the
Commonwealth to ARENA in each financial year from 2012-13 to 2019-20. Unless
Parliament amends this clause, these amounts would be available for payment to
ARENA in the year concerned. Sub-clause 64(2) would provide that if an amount is
not paid to ARENA in the year concerned, it will be rolled over so as to be available
in a subsequent year. Parliament could at any time amend sub-clause 64(1) to increase
amounts to be available for payment to ARENA in any of the years specified, or for
future years beyond 2019-2020.
Sub-clauses 64(3) and (4) relate to amounts which are presently credited to the Clean
Energy Initiative Special Account. Part of the amounts credited to that Special
Account are to be made available to ARENA, but the exact amount will not be known
until some time after 1 July 2012. When the exact amount is known, the Finance
Minister would be able to determine an amount which will be debited from the Clean
Energy Initiative Special Account. The same amount will be added to the amount
specified in the table in sub-clause 64(1) for financial year 2012-13. The amount
determined by the Finance Minister may not exceed the balance of the Special
Account as at the date of the determination, and is likely to be somewhat less than the
balance of the Special Account at that date. The determination of the Finance Minister
would be a legislative instrument.
If the amount added under this mechanism is not paid to ARENA in 2012-13, it will
be rolled over so that it is available to ARENA in future years.
Sub-clauses 64(5) and (6) relate to amounts of money that are held by ASI Limited at
the time when the assets and liabilities of ASI Limited are transferred to the
Commonwealth and ARENA (as relevant) by the C&T Bill. The C&T Bill would
provide that moneys held by ASI Limited are transferred to the Commonwealth at that
time (which will be on or before 1 January 2013).
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Sub-clause 64(5) would provide that an amount of money equal to the amounts
transferred from ASI Limited to the Commonwealth would be added to the amount in
the table in sub-clause 64(1) at the time when the transfer from ASI Limited occurs.
This has the effect that the money will become available to be paid to ARENA by the
Commonwealth. If the amount is not paid to ARENA in 2012-2013 it will roll over to
be available in future years.
Clause 65: Payment of up to balance of specified amounts on request by ARENA
Under this clause, ARENA would be able to request payments from the
Commonwealth to meet liabilities of ARENA. This will include liabilities that are
already due for payment, or that are expected to become due for payment in the
financial year concerned.
The timing and frequency of requests, and how they are to be made, will be dealt with
in an agreement between ARENA and the Minister. Generally speaking, it is expected
that ARENA will only request amounts from the Commonwealth shortly in advance
of needing the money to meet a liability.
ARENA's liabilities may include liabilities it has under an agreement for the
provision of services entered into with the Commonwealth.
Clause 66: Appropriation
This clause is a standing appropriation of the amounts payable to ARENA under
clause 65.
A standing appropriation is necessary so that the Commonwealth may pay to ARENA
the amounts which it is required to pay ARENA.
Clause 67: Application of ARENA's money
Subsection (1) notes that ARENA's money consists of money received from the
Commonwealth under clause 65 as well as other money received by ARENA. Such
other money might include dividends paid to ARENA by the Clean Energy Finance
Corporation (if it is established at some time in the future and if its legislation
provides for dividends to be paid to ARENA).
Sub-clause (2) would provide that ARENA may only spend money, whether received
from the Commonwealth or another person, for purposes which are within its
functions, and to pay remuneration and allowances to its officers and the CEO and
CFO. ARENA would be able to spend money, for example, to cover the meeting costs
of the Board, and costs associated with the performance of the functions of the CEO
and CFO.
However, sub-clause 67(3) would make clear that ARENA may not spend its money
to pay the salaries, allowances and other costs associated with the staff made available
to ARENA by RET. Those costs are to be met from the annual appropriation to RET,
and not by ARENA. Other costs associated with the RET staff made available to
ARENA include their travel costs, costs of and associated with accommodation, and
costs of equipment and material.
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Clause 68: ARENA's money not public money
This clause would ensure that ARENA's money is not public money for the purposes
of the FMA Act. This will be the case even though officials of RET will be engaged
in the commitment, spending, management or control of that money. It is possible, in
the absence of this clause, that the operation of the FMA Act and Financial
Management and Accountability Regulations would otherwise have had the effect of
making ARENA's money public money.
Clause 69: Taxation
This clause would ensure that ARENA is not subject to taxation under a law of the
Commonwealth or of a State or Territory.
Part 6--Miscellaneous
Clause 70: Extra matters to be included in annual report
Because ARENA would be a Commonwealth authority for the purposes of the CAC
Act, the Board members would be required by section 9 of the CAC Act to prepare
annual reports and give them to the Minister for presentation to Parliament.
Clause 70 of the Bill would set out matters that must be included in these annual
reports, in addition to the matters set out in Schedule 1 to the CAC Act.
Clause 71: Delegation by ARENA
This clause would provide for delegation by the ARENA of its powers or functions
under the Bill.
With a view to ensuring that ARENA operates efficiently, ARENA would be able to
delegate all or any of its powers or functions under the Bill to a member of the Board
or the CEO.
Such a delegation must be made in writing and under ARENA's corporate seal.
Sub-clause 71(2) would provide that a delegate must comply with any directions of
ARENA when exercising any power or performing any function under a delegation.
Clause 72: Delegation by Board
This clause provides for delegation by the Board of the Board's powers or functions
under the Bill.
Sub-clause 72(1) would provide that the Board is able to delegate its powers or
functions under the Bill to a member of the Board or the CEO, except the Board's
powers or functions under Subdivision A of Division 2 of Part 3 of the Bill, which
relates to development of the general funding strategy.
A delegation by the Board must be in writing.
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Sub-clause 72(2) would provide that a delegate must comply with any directions of
the Board when exercising any power or performing any function under a delegation.
Sub-clause 72(3) would make clear that a delegation by the Board continues in force
despite a change in the membership of the Board (unless or until the delegation is
revoked). Similarly, a change in the membership of the Board would not affect the
Board's capacity to revoke a delegation.
Clause 73: Subdelegation by CEO
This clause would provide that the CEO may subdelegate a power or function that has
been delegated to the CEO by ARENA or the Board under sub-clause 71(1) or 72(1).
The CEO may only subdelegate a power or function to the CFO, or to a substantive or
acting SES employee, or a substantive or acting Executive Level 2 employee (or
equivalent) in RET (subclause 73(1)).
A subdelegation by the CEO must be in writing.
Sub-clause 73(2) would provide that a subdelegate must comply with any directions
of the CEO when exercising any power or performing any function under a
subdelegation.
Sub-clause 73(3) would provide for the rules about delegations set out in ss 34AA,
34AB and 34A of the Acts Interpretation Act 1901 to apply to subdelegations made
under this clause.
Clause 74: Regulations
This clause is self-explanatory.
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