Coalition Senators' Dissenting Report
Introduction
The Reserve Bank Amendment (Enhanced Independence) Bill 2008
(the Bill) was introduced by the Treasurer on 20 March 2008. In his second reading speech, the Treasurer said:
“The Rudd government committed
to enhance the independence of the Reserve Bank by raising the positions of
Governor and Deputy Governor to the same level of statutory independence as the
Commissioner of Taxation and the Australian Statistician. This is the purpose
of the legislation I am introducing to the parliament today. The Rudd
government also committed to improving the transparency of future Reserve Bank
Board appointments and to remove political considerations. Accordingly, the
Secretary to the Treasury and the Governor of the Reserve Bank will maintain a
register of eminent candidates of the highest integrity from which the
Treasurer will make appointments to the Reserve Bank Board”.
The Bill amends the Reserve Bank Act 1959 (the Act) so
that the Governor-General in Council, rather than the Treasurer, would appoint
the Governor and Deputy Governor of the Reserve Bank. The Bill does not change
the appointment process for the Reserve Bank Board or the Payments System Board
which remains with the Treasurer.
It also amends the Act so that the termination of the
appointment of the Governor or Deputy Governor would be by the Governor-General
in Council following Parliamentary approval. This replaces section 25 of the
Act. The Bill specifies three grounds for the termination of an appointment;
where a Governor or Deputy Governor[1]:
- becomes permanently incapable of performing his or her duties; or
- engages in any paid employment outside the duties of his or her
office; or
- becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her creditors or
makes an assignment of his or her salary for their benefit.
Clause 25(8) of the Bill provides:
25(8): The appointment of the
Governor or the Deputy Governor must not be terminated on a ground for
termination specified in subsection (8) except as provided by this section.
The effect of this clause is to ensure that Parliamentary
consideration of the termination of a Governor or Deputy Governor may only be
on the three reasons of permanent incapacity, paid employment and bankruptcy.
The proposed section 25 of the Bill contrasts with section
25 of the Act which provides that the Treasurer shall terminate the
appointment of the Governor or Deputy Governor if he or she is bankrupt,
permanently incapacitated or in outside paid employment.
So the effect of the Bill would be to change the mechanism
for the termination of the Governor or Deputy Governor on these three grounds.
Presently termination for bankruptcy, outside paid employment and permanent
incapacity is mandatory. If the Bill is enacted, it would become optional in
two degrees. First, the Parliament would need to agree to the termination on
these grounds. Then the Governor-General in Council would need to agree to
execute the termination.
Misbehaviour
Subsection 24(1)(c) of the Act provides that:
24 (1) The Governor and the
Deputy Governor:
... (c) hold office
subject to good behaviour.
The Bill does not amend that subsection, although its effect
may, in some opinions, be affected by clause 25(8) of the Bill; specifically
the process for removing a Governor or Deputy Governor for misbehaviour (see
discussion below).
Coalition Senators note that the Bill does not legislate for
a ‘register of eminent candidates’.
Coalition Senators also noted an amendment moved by Hon. Malcolm
Turnbull MP requiring the Governor to make himself or herself available to
give evidence before the House of Representatives Standing Committee on Economics
and the Senate Standing Committee on Economics not less than four times
a year.
Submissions and Testimony
The Treasury
The Treasury’s submission states
that the Bill raises the positions of Governor and Deputy Governor to ‘the same
level of statutory independence as the Commissioner of Taxation and the
Australian Statistician’. The submission also cites advice from the Australian
Government Solicitor (which was tabled by Mr McDonald in testimony on 30 May 2008. The pertinent part of the advice states:
“In our view, a court would
need to determine whether the Governor or Deputy Governor had failed to exhibit
‘good behaviour’ for the purposes of s 24(1)(c). For termination to occur in
accordance with s24(1)(c) it would be necessary for legal proceedings to be
brought in an appropriate court by a person having sufficient standing alleging
that the Governor or Deputy Governor had failed to fulfil the condition of his
or her office as to ‘good behaviour’ and seeking a declaration as to when that
failure occurred”[2].
Coalition Senators note that the
advice was first sought by the Treasury on 15 May 2008 (in draft form).
In testimony before the
Committee, Mr McDonald did not give any evidence that would suggest that it
would be an improvement on the status quo to allow Parliamentary debate on
whether a Governor or Deputy Governor should be terminated for bankruptcy,
outside paid employment or permanent incapacity. He did, however, suggest that
permanent incapacity required judgement and was not purely a matter of fact.
Mr McDonald—The first point
is that, as I said before, section 25(2) provides for the immediate suspension
in those circumstances. The second point is that it is not quite the case that
these three grants—and it may well be the case for bankruptcy—take the ground
of permanent incapacity. I know that in earlier testimony people said, ‘If the
governor was comatose’, and various other grounds can be put forward, but that
is not something that would just be a question of pure opinion; the Treasurer
of the moment would need to have a basis for forming that opinion. There is
more than one ground, and the test of incapacity is one that requires some
judgement[3].
Mr McDonald also argued for the
retention of the present formulation with respect to removing a Governor or
Deputy Governor for misbehaviour.
Mr McDonald—I suppose we come
back to the counterfactual: is it preferable to make it easier and, with due
respect to the parliament, more engaged in the political process, for either
house of parliament to be able to move such a motion on the grounds of
misbehaviour[4].
Mr McDonald—I suppose we come
back to the alternative: what actually happens if you have a different test—if
you amend section 25(8)? In that instance it is the parliament that needs to be
convinced that the governor or deputy governor is guilty of misbehaviour, and
not a court. Again, with respect to the parliament, that is a lesser test than
exists at the moment[5].
Senator Brandis argued that,
taking the AGS advice at face value, would potentially lead to very long delays
if the court case was contested.
Senator BRANDIS—I am. I ran
dozens and dozens of Federal Court trials in my earlier career, and I can tell
you that a contested Federal Court proceeding is not something that can happen
quickly. It is not in the nature of the process. What effect do you think it
would have on the Australian financial system if public confidence in the
Governor of the Reserve Bank was undermined by prolonged proceedings in the
Federal Court[6].
Senator Brandis also noted that a
Government wishing to terminate a Governor for misbehaviour would need very
strong grounds.
Senator BRANDIS—With respect,
I do not think you are right because, given the gravity of such a measure, no
government would dare make it unless there were very, very powerful and almost
self explanatory reasons to do such a thing. But, even if you were right about
that, what is the greater mischief? That or a public declaration by the
government that it has no confidence in the man who runs the financial system
which would drag on for, let us say, even weeks if it were dealt with in an
extremely urgent way by a court. What is the greater mischief?[7]
Saul Eslake
In Mr Eslake’s submission, he
states that it is odd that the three grounds of outside paid employment,
bankruptcy and permanent incapacity are included as optional grounds for
termination but misbehaviour is not. Mr Eslake thought it would be an
improvement to include ‘proven misbehaviour’ as a ground on which should be
adjudged by Parliament.
Stephen Bell
In Mr Bell’s submission, he
writes that he does not support the Bill and the amendment “has little to do
with the RBA’s independence”. He considers it undesirable for Parliamentary
debate on matters that are essentially of a factual nature.
Steve Keen
Professor Keen’s submission
concludes:
“Since further independence for
the RBA is not warranted, and this Bill in any case makes comical rather than
substantive changes to its independence, I recommend that the Bill be
rejected”.
In his testimony, Professor Keen
was very clear on his opposition to the Bill.
Prof. Keen—No, I do not. I
think the bill as written is silly. Looking at the bill, changing from the
Treasurer to the Governor-General is not necessarily a bad thing. I am not
opposed to that particular part of the bill. But the following grounds for
removal of the governor or deputy should not be optional: if they are bankrupt,
comatose—’incapable of performing his or her duties’—or working for another
organisation. They should be compulsory, as the current act says. It is the
classic, old expression, which you have heard many times, I am sure: it is
rearranging the deck chairs on the Titanic[8].
Sinclair Davidson
Professor Davidson’s submission
concludes that the Bill might add to moral hazard and thought the current
institutional arrangement “are appropriate, sensible and should be
maintained”.
In his testimony, Professor Davidson
was equally clear in his opposition to the Bill, as the following exchange with
Senator Bushby makes clear[9].
Senator BUSHBY—That is right.
Do you think that changing the situation actually enhances the independence of
the Reserve Bank?
Prof. Davidson—No. It is
inconceivable that a bankrupt would remain as Reserve Bank Governor.
Senator BUSHBY—But
theoretically under the—
Prof. Davidson—Yes, under the
amendment, that could happen.
Senator BUSHBY—Under the
proposed bill it is quite conceivable that, for whatever reason—whether
political or otherwise—one of the houses of parliament could elect to not—
Prof. Davidson—That is correct.
Senator BUSHBY—move the
address to the Governor-General. Similarly, with the Commissioner of Taxation,
the Governor-General must remove them if they engage in paid employment. Do you
think that moving that requirement from the Reserve Bank enhances independence?
Prof. Davidson—Absolutely
not—no.
Senator BUSHBY—Similarly, if
he is absent from duty, but that is not as relevant. The same applies for the
Statistician. If the Statistician becomes bankrupt, the Governor-General shall
remove them. So he is required to remove them and, once again, we have
established that, in the case of the proposed bill, you do not believe that
enhances the independence of the Reserve Bank board at all.
Prof. Davidson—No.
Senator BUSHBY—Was it the
intention to amend the Reserve Bank Act 1959 such that the automatic
termination for permanent incapacity, paid employment outside the RBA or
bankruptcy now becomes optional, such that the parliament might decide. Do you
think that they are intending to make it optional by doing this in those
circumstances?
Prof. Davidson—If I read the
bill correctly, it actually looks like the parliament could agree to have a
bankrupt, for example, as the Governor of the Reserve Bank. I do not think that
is at all wise and, if the government thinks that it is wise, it is up to them
really to explain to us why that would be the case. I have not heard those
arguments. I have heard the argument that this will enhance the independence of
the Reserve Bank. I suspect that what might be happening is that it is believed
that somehow section 24(1)(c) has been modified and that these become the only
conditions under which the Reserve Bank Governor could be removed, but that is
not the opinion that is in the Treasury submission, for example.
In summary, the submissions and testimony – with the
exception of Treasury – were consistent in their opposition to the proposed Bill.
Discussion
As the stated purpose is to raise the positions of the
Governor and Deputy Governor to the same level of statutory independence as the
Commissioner of Taxation and the Australian Statistician, Coalition Senators
firstly considered the relevant provisions of the Taxation Administration
Act 1953 and the Australian Bureau of Statistics Act 1975.
Both the Tax Commissioner and Australian Statistician are
appointed by the Governor-General in Council for terms of up to 7 years.
The Tax Commissioner may be dismissed by the
Governor-General in Council subject to the agreement of Parliament for “proved
misbehaviour or physical or mental incapacity”. The Governor-General must
terminate the appointment of the Tax Commissioner for outside paid employment
or bankruptcy.
The Australian Statistician may be dismissed by the
Governor-General in Council subject to the agreement of Parliament for
“misbehaviour or incapacity”. The Governor-General must terminate the
appointment of the Statistician for bankruptcy.
So the Bill’s exclusion of misbehaviour as a ground for
Parliament’s determination is inconsistent with these Acts.
And the Bill’s inclusion of bankruptcy as an optional
grounds for removal is inconsistent with both Acts where it is mandatory for
the Governor-General to terminate an appointment (as is outside paid employment
in the case of the Tax Commissioner).
In a survey of other statutory officers (see Attachment A),
there is no instance where Parliament is called upon to determine whether a
bankrupt officer should remain in office.
Coalition Senators are strongly of the view that a Governor
or Deputy Governor who is in outside paid employment, permanently incapacitated
or bankrupt should be subject to the mandatory termination of his or her
appointment. These three grounds are essentially matters of fact – outside
paid employment can be demonstrated by an employment contract; permanent
incapacity can be evidenced by a medical certificate and bankruptcy can be
evidenced by a court order. It would be a gross error for proceedings on these
grounds to be optional and subject to Parliamentary debate.
Coalition Senators note that there are differing opinions on
the method for dismissing a Governor or Deputy Governor for misbehaviour. On
the one side, the Australian Government Solicitor considers that it would be
necessary to act via court proceedings. On the other, the Parliamentary Library
(in its Bills Digest) consider that the Treasurer could terminate an
appointment on these grounds, but that would become more problematic should the
Bill be enacted.
In any case, Coalition Senators are surprised that the
Government did not take the opportunity afforded by the Bill to clarify the
termination procedure for misbehaviour.
Coalition Senator’s do not agree with Mr McDonald who in
testimony suggested that dismissal via a court order would be superior to
Parliamentary involvement because it would be less political. As Senator
Brandis has noted, Federal Court proceedings could take months if not years
were they to be contested, and this would be likely as otherwise a misbehaving
governor would have resigned. Given the importance for stability in the
financial sector, it is necessary that the execution of any dismissal for
misbehaviour be swift.
Further, there is no other instance that could be found
where it would be necessary to take court proceedings. Indeed, for High Court
Judges – arguably having an even greater need for independence than the RBA
Governor – it is necessary to use Parliamentary proceedings.
Conclusion
Coalition Senators do not support section 25 of the Bill,
which they consider would be a grave error. The three grounds of outside paid
employment, bankruptcy and permanent incapacity should be mandatory and remain
with the Treasurer for execution. This is important since there is a need for
swift execution of the termination of an appointment because of the effects on
the financial sector which Executive Council proceedings would delay.
Sections 1 and 2 of the Bill are symbolic. In practice
there is no difference between the Governor-General in Council signing an
instrument of appointment or the Treasurer. Both processes would have involved
Cabinet consideration of the proposed appointees. Nonetheless, given that the
comparable Acts cited at Attachment A all involve the Governor-General,
Coalition Senators are willing to consider these amendments.
Given the opportunity afforded by the Bill, and the
uncertainty evidenced by the Australian Government Solicitor advice over the
termination of a Governor or Deputy Governor for misbehaviour, Coalition
Senators would consider amendments clarified the Law such that either the Governor-General
(acting alone or following Parliamentary debate) may terminate the appointment
of a Governor or Deputy Governor for misbehaviour. But if such an amendment
were to be brought forward, Coalition Senators consider that the suspension
provisions should involve the Treasurer not the Governor-General given the
time-sensitive nature of any decision to remove an RBA Governor or Deputy
Governor.
Coalition Senators support Mr Turnbull’s amendment to
require the RBA Governor to testify to a conjoint meeting with the House
Economics Committee and the Senate Economics Committee four times a year
as a measure which would increase the accountability and transparency of the
Reserve Bank and hence its independence in both houses of parliament.
Senator Alan Eggleston (Deputy Chair)
Attachment A
Appointment and Termination of Selected Statutory Office Holders
This section lists the relevant sections of comparable Acts
that provide for the appointment and termination of statutory officers. It
does not purport to be complete, but provides a thorough sample of key
officials that require statutory independence including Judges, the Australian
Statistician, the Tax Commissioner, the Auditor-General, the Commonwealth
Ombudsman, the Australian Electoral Commissioner, the Privacy Commissioner, the
Director of Public Prosecutions, the Chairman of the Australian Competition and
Consumer Commission, the Chairman of the Australian Securities and Investments
Commission, and the Chairman of the Australian Prudential Regulation Authority.
Summary of appointment and dismissal procedures
|
Appointment
|
Termination
|
Judges
|
Governor-General
|
Governor-General and Parliament for proved misbehaviour or
incapacity
|
Australian Statistician
|
Governor-General for up to 7 years
|
Governor-General and Parliament for misbehaviour or
incapacity.
Governor-General shall terminate appointment for
bankruptcy
|
Tax Commissioner
|
Governor-General for up to 7 years
|
Governor-General and Parliament for proved misbehaviour or
physical or mental incapacity.
Governor-General shall terminate appointment for paid
employment or bankruptcy
|
Auditor-General
|
Governor-General for up to 10 years and not eligible for
reappointment. Needs approval by the Joint Committee of Public Accounts and
Audit
|
Governor-General and Parliament for misbehaviour or
physical or mental incapacity.
Governor-General shall terminate appointment for
bankruptcy.
|
Ombudsman
|
Governor-General for up to 7 years
|
Governor-General and Parliament for misbehaviour or
physical or mental incapacity.
Governor-General shall terminate appointment for
bankruptcy.
|
Electoral Commissioner
|
Governor-General for up to 7 years
|
Governor-General for misbehaviour or physical or mental
incapacity.
Governor-General shall terminate appointment for
bankruptcy or paid employment.
|
Privacy Commissioner
|
Governor-General for up to 7 years
|
Governor-General for misbehaviour or physical or mental
incapacity.
Governor-General shall terminate appointment for
bankruptcy.
|
Director of Public Prosecutions
|
Governor-General for up to 7 years
|
Governor-General for misbehaviour or physical or mental
incapacity.
Governor-General shall terminate appointment for
bankruptcy or paid employment.
|
ACCC Chairman
|
Governor-General and approval of majority of States
|
Governor-General for misbehaviour or physical or mental
incapacity.
Governor-General shall terminate appointment for
bankruptcy or paid employment.
|
ASIC Chairman
|
Governor-General for up to 5 years
|
Governor-General for misbehaviour or physical or mental
incapacity or bankruptcy.
|
APRA Chairman
|
Governor-General for up to 5 years
|
Governor-General for misbehaviour or physical or mental
incapacity or bankruptcy.
Governor-General shall terminate appointment if becomes a
director, officer or employee of a body regulated by APRA.
|
The Constitution of Australia
72
Judges’ appointment, tenure and remuneration
The
Justices of the High Court and of the other courts created by the Parliament:
(i)
shall be appointed by the Governor-General in Council;
(ii)
shall not be removed except by the Governor-General in Council,
on
an address from both Houses of the Parliament in the same
session,
praying for such removal on the ground of proved
misbehaviour
or incapacity;
(iii)
shall receive such remuneration as the Parliament may fix; but the
remuneration
shall not be diminished during their continuance in
office.
Australian Bureau of
Statistics Act 1975
7 Appointment and tenure of office of Statistician
- The
Statistician shall be appointed by the Governor-General and, subject to
this Act, holds office for such period, not exceeding 7 years, as is specified
in the instrument of his or her appointment but is eligible for re-appointment.
- The
Statistician holds office on such terms and conditions (if any) in respect of
matters not provided for by this Act as are determined by the Governor-General.
12 Removal from office
- The
Governor-General may remove the Statistician from office on an address
praying for his or her removal on the ground of misbehaviour or incapacity
being presented to the Governor-General by each House of the Parliament
in the same session of the Parliament.
- The
Governor-General may suspend the Statistician from office on the ground
of misbehaviour or incapacity.
- Where
the Governor-General suspends the Statistician from office, the Minister
shall cause a statement of the ground of the suspension to be laid before each
House of the Parliament within 7 sitting days of that House after the
suspension.
- Where
such a statement has been laid before a House of the Parliament, that House
may, within 15 sitting days of that House after the day on which the statement
has been laid before it, by resolution, declare that the Statistician should be
removed from office and, if each House so passes such a resolution, the
Governor-General shall remove the Statistician from office.
- If,
at the expiration of 15 sitting days of a House of the Parliament after the day
on which the statement has been laid before that House, that House has not
passed such a resolution, the suspension terminates.
- The
suspension of the Statistician from office under this section does not affect
any entitlement of the Statistician to be paid remuneration and allowances.
- If
the Statistician becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for their benefit,
the Governor-General shall remove the Statistician from office.
- The
Governor-General may, with the consent of the Statistician, retire the
Statistician from office on the ground of incapacity.
- The
Statistician shall not be removed or suspended from office except as provided
by this section.
Taxation Administration
Act 1953
4 Commissioner and Second Commissioners of Taxation
There
shall be a Commissioner of Taxation and 3 Second Commissioners of Taxation, who
shall be appointed by the Governor-General.
6C Suspension and removal from office of Commissioner
or Second Commissioner
- The
Governor-General may remove the Commissioner or a Second Commissioner
from office on an address praying for the removal of the Commissioner or the
Second Commissioner, as the case may be, on the ground of proved misbehaviour
or physical or mental incapacity being presented to the Governor-General
by each House of the Parliament in the same session of the Parliament.
- The
Governor-General may suspend the Commissioner or a Second Commissioner
from office on the ground of misbehaviour or physical or mental incapacity.
- Where
the Governor-General suspends the Commissioner or a Second Commissioner,
the Minister shall cause a statement of the grounds of the suspension to be
laid before each House of the Parliament within 7 sitting days of that House
after the suspension.
- If,
at the expiration of 15 sitting days of a House of the Parliament after the day
on which the statement was laid before that House, an address under
subsection (1) has not been presented to the Governor-General by
each House of the Parliament, the suspension terminates.
- The
suspension of the Commissioner or a Second Commissioner from office under this
section does not affect any entitlement of the Commissioner or Second
Commissioner, as the case may be, to be paid remuneration and allowances.
- If:
- the
Commissioner or a Second Commissioner becomes bankrupt, applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes an assignment of his or her remuneration for
their benefit;
- the
Commissioner or a Second Commissioner engages, except with the approval of the
Minister, in paid employment outside the duties of the office of Commissioner
or Second Commissioner, as the case may be; or
- the Commissioner or
a Second Commissioner is absent from duty, except on leave of absence, for 14
consecutive days or 28 days in any 12 months;
the Governor-General shall remove the Commissioner or Second Commissioner, as the case may be, from office.
- The
Governor-General may, with the consent of the Commissioner or a Second
Commissioner, retire the Commissioner or Second Commissioner, as the case may
be, from office on the ground of physical or mental incapacity.
- The
Commissioner or a Second Commissioner shall not be suspended, removed or
retired from office except as provided by this section.
Auditor-General Act 1997
1 Appointment of Auditor-General
- The
Auditor-General is to be appointed by the Governor-General, on the
recommendation of the Minister, for a term of 10 years.
Note: The
effect of section 19A of the Acts Interpretation Act 1901 is that “the Minister” refers to the Minister who administers this clause. The
administration of Acts or particular provisions of Acts is allocated by
Administrative Arrangements Orders made by the Governor-General.
- The
Auditor-General holds office on a full-time basis.
- For
the purposes of the Superannuation Act 1976 and the Trust Deed under the Superannuation Act 1990, the minimum retiring age for the Auditor-General
is 55. However, if the instrument of appointment specifies a younger age, then
the younger age applies.
- A
person cannot be appointed as Auditor-General if the person has
previously been appointed as Auditor-General under this Act or under the Audit
Act 1901.
2 Minister must refer recommendation for appointment
of Auditor-General to the Joint Committee of Public Accounts and Audit
- The
Minister must not make a recommendation to the Governor-General under
clause 1 unless:
- the
Minister has referred the proposed recommendation to the Joint Committee of
Public Accounts and Audit for approval; and
- the
Committee has approved the proposal.
- A
referral under paragraph (1)(a) must be in writing and may be withdrawn by
the Minister at any time.
6 Removal from office etc.
- The
Governor-General may remove the Auditor-General from office if each
House of the Parliament, in the same session of the Parliament, presents an
address to the Governor-General praying for the removal of the Auditor-General
on the ground of misbehaviour or physical or mental incapacity.
- The
Governor-General must remove the Auditor-General from office if the
Auditor-General does any of the following:
- becomes
bankrupt;
- applies
to take the benefit of any law for the relief of bankrupt or insolvent debtors;
- compounds
with his or her creditors;
- assigns
his or her remuneration for the benefit of his or her creditors.
- If
the Auditor-General is:
- an
eligible employee for the purposes of the Superannuation Act 1976; or
- a
member of the superannuation scheme established by the Trust Deed under the Superannuation
Act 1990;
- the
Governor-General may, with the consent of the Auditor-General,
retire the Auditor-General from office on the ground of physical or
mental incapacity.
-
For
the purposes of the Superannuation Act 1976, the Auditor-General
is taken to have been retired from office on the ground of invalidity if:
- the
Auditor-General is removed or retired from office on the ground of physical
or mental incapacity; and
- the
CSS Board gives a certificate under section 54C of the Superannuation
Act 1976.
- For
the purposes of the Superannuation Act 1990, the Auditor-General
is taken to have been retired from office on the ground of invalidity if:
- the
Auditor-General is removed or retired from office on the ground of
physical or mental incapacity; and
- the
PSS Board gives a certificate under section 13 of the Superannuation
Act 1990.
Ombudsman Act 1976
21 Appointment of Ombudsman
- An
Ombudsman shall be appointed by the Governor-General.
- An
Ombudsman holds office on such terms and conditions (if any) in respect to
matters not provided for in this Act as are prescribed.
22 Tenure of office
- Subject
to this Act, an Ombudsman holds office for such period, not exceeding 7 years,
as is specified in the instrument of his or her appointment, but is eligible
for re-appointment.
28 Suspension and removal of Ombudsman
- The
Governor-General may remove an Ombudsman from office on an address
praying for his or her removal on the ground of misbehaviour or physical or
mental incapacity being presented to the Governor-General by each House
of the Parliament in the same session of the Parliament.
- The
Governor-General may suspend an Ombudsman from office on the ground of
misbehaviour or physical or mental incapacity.
- Where
the Governor-General suspends an Ombudsman from office, the Minister
shall cause a statement of the grounds of the suspension to be laid before each
House of the Parliament within 7 sitting days of the House after the
suspension.
- Where
such a statement has been laid before a House of the Parliament, that House
may, within 15 sitting days of that House after the day on which the statement
has been laid before it, by resolution, declare that the Ombudsman should be
removed from office and, if each House so passes such a resolution, the
Governor-General shall remove the Ombudsman from office.
- If,
at the expiration of 15 sitting days of a House of the Parliament after the day
on which the statement has been laid before that House, that House has not
passed such a resolution, the suspension terminates.
- The
suspension of an Ombudsman from office under this section does not affect any
entitlement of the Ombudsman to be paid remuneration and allowances.
- If
an Ombudsman becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her creditors or
makes an assignment of his or her remuneration for their benefit, the Governor-General
shall remove him or her from office.
(7A) If
an Ombudsman is absent from duty, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months, the Governor-General
may remove him or her from office.
- An
Ombudsman shall not be removed or suspended from office except as provided by
this section.
Commonwealth Electoral Act
1918
21 Terms and conditions of appointment etc.
- An
electoral officer shall be appointed by the Governor-General.
- Subject
to this Act, an electoral officer holds office for such period, not exceeding 7
years, as is specified in the instrument of appointment, but is eligible for re-appointment.
25 Termination of appointment
- The
Governor-General may terminate the appointment of an electoral officer by
reason of misbehaviour or physical or mental incapacity.
- If
an electoral officer:
- becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit;
- is
absent, except on leave of absence, for 14 consecutive days or for 28 days in
any 12 months; or
- engages in paid
employment outside the duties of his or her office without the approval of the
Commission;
the
Governor-General shall terminate the appointment of the electoral
officer.
- If
the Electoral Commissioner, or the Deputy Electoral Commissioner while acting
as the Electoral Commissioner, fails, without reasonable excuse, to comply with
his or her obligations under section 11, the Governor-General shall
terminate his or her appointment as Electoral Commissioner or Deputy Electoral
Commissioner, as the case may be.
Privacy Act 1988
19A Privacy Commissioner
- There
shall be a Privacy Commissioner, who shall be appointed by the Governor-General.
- A
person is not qualified to be appointed as the Privacy Commissioner unless the
Governor-General is satisfied that the person has appropriate
qualifications, knowledge or experience.
20 Terms and conditions of appointment
- The
Commissioner holds office for such period, not exceeding 7 years, as is
specified in the instrument of the person’s appointment, but is eligible for re-appointment.
25 Termination of appointment
- The
Governor-General may terminate the appointment of the Commissioner by
reason of misbehaviour or physical or mental incapacity.
- The
Governor-General shall terminate the appointment of the Commissioner if the
Commissioner:
- becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with creditors or makes an assignment of
remuneration for their benefit;
- is
absent from duty, except on leave of absence, for 14 consecutive days or for 28
days in any period of 12 months; or
- contravenes
section 23.
Director of Public
Prosecutions Act 1983
18 Appointment, and terms and conditions of appointment, of Director
- The
Director shall be appointed by the Governor-General.
- A
person shall not be appointed as the Director unless he or she is a legal
practitioner and has been a legal practitioner for not less than 5 years.
- The
Director shall be appointed for such period, not exceeding 7 years, as is
specified in the instrument of his or her appointment, but is eligible for re-appointment.
- The
Director holds office on such terms and conditions (if any) in respect of
matters not provided for by this Act as are determined by the Governor-General.
23 Termination of appointment
- The
Governor-General may terminate the appointment of the Director or
Associate Director for misbehaviour or physical or mental incapacity.
- If the Director or Associate
Director:
- becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit;
- is
absent from duty, except on leave of absence, for 14 consecutive days or
for 28 days in any 12 months;
- engages
in practice as a legal practitioner outside the duties of his office;
- without
the consent of the Attorney-General, engages in paid employment outside
the duties of his or her office; or
- fails, without
reasonable excuse, to comply with his or her obligations under section 24;
the
Governor-General shall terminate the appointment of the Director or
Associate Director, as the case may be.
- In
spite of anything contained in this section, if the Director or Associate
Director:
- is
an eligible employee for the purposes of the Superannuation Act 1976;
and
- has not reached his
or her maximum retiring age within the meaning of that Act;
he
or she is not capable of being retired from office on the ground of invalidity
within the meaning of Part IVA of that Act unless the Commonwealth
Superannuation Board of Trustees No. 2 has given a certificate under section
54C of that Act.
- In
spite of anything contained in this section, if the Director or Associate
Director:
- is
a member of the superannuation scheme established by deed under the Superannuation
Act 1990; and
- is under 60 years
of age;
he
or she is not capable of being retired from office on the ground of invalidity
within the meaning of that Act unless the Commonwealth Superannuation Board of
Trustees No. 1 has given a certificate under section 13 of that Act.
Trade Practices Act 1974
7 Constitution of Commission
- The
Commission shall consist of a Chairperson and such number of other members as
are from time to time appointed in accordance with this Act.
- The
members of the Commission shall be appointed by the Governor-General and
shall be so appointed as full-time members.
Note: A
member of the Commission who is also appointed as an AER member remains a full-time
member of the Commission: see section 44AN.
- Before
the Governor-General appoints a person as a member of the Commission or
as Chairperson, the Minister must:
- be
satisfied that the person qualifies for the appointment because of the person’s
knowledge of, or experience in, industry, commerce, economics, law, public
administration or consumer protection; and
- consider
whether the person has knowledge of, or experience in, small business matters;
and
- if
there is at least one fully-participating jurisdiction—be satisfied that
a majority of such jurisdictions support the appointment.
At
least one of the members of the Commission must be a person who has knowledge
of, or experience in, consumer protection.
13 Termination of appointment of members of the
Commission
- The
Governor-General may terminate the appointment of a member of the
Commission for misbehaviour or physical or mental incapacity.
- If
a member of the Commission:
- becomes
bankrupt, applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit;
- fails
to comply with his or her obligations under section 17;
- without
the consent of the Minister engages in any paid employment outside the duties
of his or her office; or
is absent from
duty, except on leave of absence, for 14 consecutive days or for 28 days in any
12 months;
the
Governor-General shall terminate the appointment of that member of the
Commission.
Australian Securities and
Investments Commission Act 2001
10 Chairperson and Deputy Chairperson
The
Governor-General is to appoint as Chairperson of ASIC a person who is, or
is to be, a full-time member and may appoint as Deputy Chairperson of
ASIC a person (other than the Chairperson) who is, or is to be, a full-time
member.
108 Term of office as member
- Subject
to this Act, a person appointed as a member holds office for such term of at
most 5 years as is specified in the instrument of appointment, but is eligible
for re-appointment.
109 Term of office as Chairperson or Deputy Chairperson
- Subject
to this Act, a member appointed as Chairperson or Deputy Chairperson holds
office as such until:
- in
any case—the end of his or her current term as a member; or
- in
any case—he or she otherwise stops being a member; or
- in
the case of a member appointed as Deputy Chairperson—he or she is appointed as
Chairperson;
whichever
happens first.
- A
person is not ineligible to be appointed under section 10 merely because
he or she has been so appointed before.
111 Termination of appointment
- The
Governor-General may terminate a member’s appointment because of misbehaviour,
or the physical or mental incapacity, of the member or if the member:
- becomes
bankrupt, applies to take the benefit of a law for the relief of bankrupt or
insolvent debtors, compounds with his or her creditors or assigns remuneration
or property for their benefit; or
- is
a full-time member and engages without the Minister’s consent in paid
employment outside the duties of the member’s office; or
- is
a full-time member and is absent from duty, except on leave of absence,
for 14 consecutive days, or for 28 days in any period of 12 months; or
- is
a part-time member and is absent, except on leave granted in accordance
with subsection 113(2), from 3 consecutive meetings of ASIC; or
- without
reasonable excuse, contravenes section 123, subsection 124(2), (4) or (6)
or section 125.
Australian Prudential
Regulation Authority Act 1998
16 Appointment of APRA members
- APRA
is to consist of not fewer than 3 members nor more than 5 members.
- The
APRA members are to be appointed by the Governor-General by written
instrument.
18 Appointment of Chair and Deputy Chair
- The
Governor-General is to appoint a full-time APRA member as Chair of
APRA.
- The
Governor-General may appoint another full-time APRA member as
Deputy Chair of APRA.
20 Term of office as an APRA member
An
APRA member holds office for the period specified in the instrument of
appointment. The period must not exceed 5 years.
25 Termination of appointment
- The
appointment of an APRA member is immediately terminated if the member becomes a
director, officer or employee of a body regulated by APRA.
- The
Governor-General may terminate the appointment of an APRA member:
- for
misbehaviour or physical or mental incapacity; or
- if
the member:
- becomes
bankrupt; or
- applies
to take the benefit of any law for the relief of bankrupt or insolvent debtors;
or
- compounds
with his or her creditors; or
- makes
an assignment of his or her remuneration for the benefit of his or her
creditors; or
- in
the case of a full-time member—if the member is absent from duty, except
on leave of absence:
- for
14 consecutive days; or
- for
28 days in any period of 12 months; or
- in
the case of a part-time member—if the member is absent, except on leave
of absence, from 3 consecutive meetings of APRA; or
- in
the case of a full-time member—if the member engages, except with the
Minister’s approval, in paid employment outside the functions of his or her
office; or
- in
the case of a part-time member—if the member engages in paid employment
that conflicts or could conflict with the proper performance of the functions
of his or her office; or
- the
member is or becomes a director, officer or employee of a body operating in the
financial sector, other than a body regulated by APRA, and the Minister
considers that the person is, will be, or could be, prevented from the proper
performance of the functions of his or her office because of resulting
conflicts of interest; or
- if
the member fails, without reasonable excuse, to comply with subsection 48A(1)
or 48B(1); or
- if
the member has an interest that has been, or should have been, disclosed under
subsection 48A(1) or 48B(1) and that conflicts, or could conflict, to a
significant extent, with the proper performance of the functions of his or her
office.
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