REGULATOR PERFORMANCE OMNIBUS BILL 2022 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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REGULATOR PERFORMANCE OMNIBUS BILL 2022

2019-2020-2021-2022 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES REGULATOR PERFORMANCE OMNIBUS BILL 2022 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister Assisting the Prime Minister and Cabinet, the Hon Ben Morton MP)

REGULATOR PERFORMANCE OMNIBUS BILL 2022 GENERAL OUTLINE The Regulator Performance Omnibus Bill 2022 (the Bill) will amend or repeal outdated administrative provisions across Commonwealth legislation that can act as a barrier to effective regulator performance. The Bill contains a package of minor amendments that will support best practice regulator performance by: • streamlining processes or improving regulator efficiency • reducing the regulatory impost on regulated entities, and • clarifying legislation for the regulated community. The Bill forms part of the Australian Government's program of work under the Deregulation Agenda to lift regulator performance, capability and culture. The focus of the Agenda is on maintaining Australia's essential safeguards while reducing the regulatory compliance burden, to support business investment and jobs growth. It also reflects the Government's stewardship approach to ongoing regulatory reform, where Ministers, Secretaries and Agency Heads are responsible for ensuring their regulatory settings are well designed, well implemented and subject to timely review. The challenges of outdated administrative legislative provisions has been highlighted by the Regulator Leadership Cohort, the group of senior Australian Government regulatory leaders brought together by Secretaries Board to provide a regulator's perspective on the Government's program of work to lift regulator performance. The Cohort found that outdated provisions can be a constraint on regulator effectiveness and prevent regulators from engaging with business and supporting compliance in a modern and flexible way. Effectively administered regulation supports a safe and healthy community and provides a strong setting for business, markets and the economy. Even well-designed regulation can be undone by poor implementation or culture. Regulator responsiveness during COVID-19 showcased what can be achieved when regulators are flexible and pragmatic in delivering solutions while maintaining essential safeguards. The Bill will provide an avenue for regulators to pursue identified improvements to support performance while reducing the compliance burden. In total, the Bill will amend 18 Commonwealth Acts. The Bill includes measures that: • Streamline the indexing of certain thresholds and amounts under the Bankruptcy Act 1966 to occur annually rather than bi-annually, reducing the administrative burden on the regulator and regulated community. • Introduce more flexibility into how classes of products can be defined in a determination made under the Greenhouse and Energy Minimum Standards Act 2012. This enables better alignment with international standards, and could reduce double regulation of products. • Remove legal uncertainty about the internal review process for regulated entities under the National Vocational Education and Training Regulator Act 2011 and better 2

align the process with the internal review process in the Tertiary Education Quality and Standards Agency Act 2011. This streamlines interactions for entities regulated by both the National VET Regulator and the Tertiary Education Quality and Standards Agency. • Repeal the Cockatoo and Schnapper Islands Act 1949 to remove redundant legislation and reflect contemporary management of the islands. FINANCIAL IMPACT The Bill has no financial impact. 3

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Regulator Performance Omnibus Bill 2022 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The Regulator Performance Omnibus Bill 2022 (the Bill) will amend or repeal outdated administrative provisions across Commonwealth legislation that can act as a barrier to effective regulator performance. The Bill contains a package of minor amendments that will support best practice regulator performance by: • streamlining processes or improving regulator efficiency • reducing the regulatory impost on regulated entities, and • clarifying legislation for the regulated community. The Bill forms part of the Australian Government's program of work under the Deregulation Agenda to lift regulator performance, capability and culture. The focus of the Agenda is on maintaining Australia's essential safeguards while reducing the regulatory compliance burden, to support business investment and jobs growth. It also reflects the Government's stewardship approach to ongoing regulatory reform, where Ministers, Secretaries and Agency Heads are responsible for ensuring their regulatory settings are well designed, well implemented and subject to timely review. The challenges of outdated administrative legislative provisions has been highlighted by the Regulator Leadership Cohort, the group of senior Australian Government regulatory leaders brought together by Secretaries Board to provide a regulator's perspective on the Government's program of work to lift regulator performance. The Cohort found that outdated provisions can be a constraint on regulator effectiveness and prevent regulators from engaging with business and supporting compliance in a modern and flexible way. Effectively administered regulation supports a safe and healthy community and provides a strong setting for business, markets and the economy. Even well-designed regulation can be undone by poor implementation or culture. Regulator responsiveness during COVID-19 showcased what can be achieved when regulators are flexible and pragmatic in delivering solutions while maintaining essential safeguards. The Bill will provide an avenue for regulators to pursue identified improvements to support performance while reducing the compliance burden. In total, the Bill will amend 18 Commonwealth Acts. The Bill includes measures that: • Streamline the indexing of certain thresholds and amounts under the Bankruptcy Act 1966 to occur annually rather than bi-annually, reducing the administrative burden on the regulator and regulated community. 4

• Introduce more flexibility into how classes of products can be defined in a determination made under the Greenhouse and Energy Minimum Standards Act 2012. This enables better alignment with international standards, and could reduce double regulation of products. • Remove legal uncertainty about the internal review process for regulated entities under the National Vocational Education and Training Regulator Act 2011 and better align the process with the internal review process in the Tertiary Education Quality and Standards Agency Act 2011. This streamlines interactions for entities regulated by both the National VET Regulator and the Tertiary Education Quality and Standards Agency. • Repeal the Cockatoo and Schnapper Islands Act 1949 to remove redundant legislation and reflect contemporary management of the islands. Human rights implications This Bill engages or has the potential to engage the following rights: • Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) - the right to an effective remedy • Article 14 of the ICCPR - the right to a fair and public hearing • Article 17 of the ICCPR - the right to protection from arbitrary interference with privacy • Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - the right to physical and mental health • Article 13 of the ICESCR - the right to education. Schedule 3, Part 1 - Education, Skills and Employment: Amendments relating to vocational education and training Schedule 3, Part 1 to the Bill amends: • Subsections 17A(3) and 35(1C) of the National Vocational Education and Training Regulator Act 2011 (NVETR Act) to clarify that the requirement that an audit report must not contain personal information only applies where the report is to be published. This will streamline Commonwealth interactions by ensuring personal information can be included in non-published Regulator audit and compliance audit reports. This allows for more transparent engagement with regulated entities, and leads to improved regulatory outcomes. • Sections 201 and 203 of the NVETR Act to clarify that, where a reviewable decision is revoked on reconsideration, the Regulator may make such other decision as the Regulator thinks appropriate, and the regulated entity has the option to apply for review of this new reviewable decision directly to the Administrative Appeals Tribunal (AAT). This will: o Remove legal uncertainty about the internal review process for regulated entities by clarifying that where a new decision is made by the Regulator at internal review, the regulated entity will have the option to seek AAT review of that new decision. o Ensure closer alignment with the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) which will, in turn, streamline Commonwealth interactions for entities that are also regulated by TEQSA. 5

• Subsection 17(2) of the NVETR Act to adopt a two limbed test that requires the Regulator to consider whether the applicant is: (1) complying; or (2) will comply with subsection 17(2). This two-limbed test is designed to replicate the registration test that appears in subsection 11(b) of the Education Services for Overseas Students Act 2000 (ESOS Act) and requires the regulator to consider both current and future compliance when deciding whether to grant an application for registration under the NVETR Act. These amendments engage Article 14 of the ICCPR which relevantly provides that "In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law". The amendments to sections 201 and 203 of the NVETR Act promote Article 14 by clarifying the avenue for regulated entities to seek external AAT review of Regulator decisions, thereby promoting the right to a fair and public hearing by the AAT. These amendments also engage Article 17 of the ICCPR which relevantly provides that "No one shall be subjected to arbitrary or unlawful interference with his privacy". The amendments to subsections 17A(3) and 35(1C) of the NVETR Act would promote Article 17 by clarifying that personal information must not be included in published reports, thereby protecting the right to privacy of individuals. To the extent that these amendments place any limitation on the right to privacy, this measure is necessary and proportionate. A failure to include personal information in reports which are not published would undermine a key intention of the measures, which is to allow for more transparent engagement between the regulator and regulated entities, and lead to improved regulatory outcomes. Schedule 3, Part 2 - Education, Skills and Employment: Amendment of the Tertiary Education Quality and Standards Agency Act 2011 Schedule 3, Part 2 (Items 13-20) to the Bill amend the TEQSA Act to: • allow TEQSA to extend the legislative deadline for decisions on applications for registration and accreditation, with the applicant's written consent. • provide that a decision to reject an application for renewal of registration or for renewal of accreditation of a course of study takes effect on the date specified by TEQSA in the notice of the decision. These amendments engage the right to education, which is set out in Article 13 of the ICESCR. Article 13 recognises the important personal, societal, economic and intellectual benefits of education. Article 13 provides that secondary education in its different forms, including higher education, shall be made generally available and accessible to all by every appropriate means. The amendments promote the right to education, as they will enable TEQSA to more efficiently and effectively deal with applications for registration and course accreditation. This allows for greater opportunities for TEQSA to work with an applicant to address concerns about whether its application meets applicable legislative requirements. The Bill will also provide TEQSA with greater flexibility in supporting students to complete their studies or transition to a suitable alternative course, where a registered higher education provider or an accredited course of study does not continue to meet applicable requirements for registration or course accreditation. 6

Schedule 4, Part 2 - Health: Amendments relating to the approval of pharmacists Schedule 4, Part 2 (Items 5-14) of the Bill contains amendments to the National Health Act 1953 relating to the approval of pharmacists to supply pharmaceutical benefits under the Pharmaceutical Benefits Scheme (PBS). This would streamline the request process by which the Minister for Health and Aged Care may exercise discretion to approve a pharmacist, and minimise requests that are without merit and waste public resources, by: • combining the two stage process into a single stage process which would reduce the timeframe for processing a request from up to six months to around four months • preventing a request for the exercise of the Minister's discretion being made within 12 months of the Minister making a decision in relation to a previous request by the same applicant for the same premises. The amendments promote the right, as set out in Article 12 of the ICESCR, to the enjoyment of the highest attainable standard of physical and mental health, including the prevention, treatment and control of diseases, and assurance to all of medical service and medical attention in the event of sickness. The PBS is a benefit scheme which assists with advancement of this human right by providing subsidised access to medicines (pharmaceutical benefits) for Australians. It provides Australians with timely, reliable and affordable access to necessary and cost-effective medicines. These amendments will provide more timely access to pharmaceutical benefits where the Minister exercises discretion to approve a pharmacist, and allow for more efficient operational arrangements to support effective administration of the PBS. Schedule 5, Part 2 - Industry, Science, Energy and Resources: Amendments relating to building energy efficiency certificates Schedule 5, Part 2 (Items 6-11) to the Bill amends the Building Energy Efficiency Disclosure Act 2010 to allow the authority that issues building energy efficiency certificates to revoke and reissue building energy efficiency certificates that contain errors. It inserts a new section 13C which will involve the use of information such as the energy efficiency rating for the building, the lighting energy efficiency assessment, period of the certificate and information determined by the Secretary. Particulars of reissued certificates will be published on the Building Energy Efficiency Register under existing provisions. This will impact people who are required to hold building energy efficiency certificates, being people offering to sell or lease buildings, or parts of a building, that are used or capable of being used as an office and are determined by the Minister to be disclosure affected. These amendments may limit the right to privacy. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary interference with their privacy, and that everyone has the right to protection from such interference. Collection or publication of personal information will be limited to what is necessary to ensure the functional operation of the legislative scheme so that the intended benefits of the proposed mechanisms for reissuing certificates can be realised. The objective for the limitation is to allow errors on building energy efficiency certificates to be rectified through a process of revoking and reissuing certificates. Publication on the Building Energy Efficiency 7

Register of information corrected through the process of revoking and reissuing a certificate is necessary to administer the Building Energy Efficiency Disclosure scheme. There is therefore a rational connection between the limitation and the objective, as publishing information that is accurate and up to date enables potential purchasers and lessees to consider energy efficiency as part of their decision-making process. While the Bill may limit the right to privacy, the particulars described on the certificate and the information required by the issuing authority to reissue a certificate are unlikely to include personal information. In any event, the collection and publication of this information is necessary for the proper administration of the building energy efficiency certificate scheme. Therefore, any limitation on the right to privacy will be reasonable, necessary and proportionate. Schedule 6, Part 2 - Infrastructure, Transport, Regional Development and Communications: Amendments relating to radiocommunications etc. Schedule 6, Part 2 (Item 37) to the Bill amends the Radiocommunications Act 1992 to provide for personal information to be excluded from public inspection and subject to confidentiality in circumstances that the Australian Communications and Media Authority (ACMA) considers appropriate. In making this decision, the ACMA will consider the purpose and advantages of having this information on the Register including its role in reducing the risk of interference, facilitating compliance and promoting transparency. These benefits will be weighed against any claims made by the licensee. Schedule 6, Part 2 (Item 44) to the Bill is an application provision for item 37, providing that it applies to information entered into the register prior to the commencement of these amendments. Article 17 of the ICCPR protects the right to be free from arbitrary or unlawful interference with privacy, family, home or correspondence as well as unlawful attacks to reputation. Items 37 and 44 may promote this right as it regulates the information entered onto the Register and subjects the personal information held to greater protections. This provision neither derogates nor limits obligations under this Article. Schedule 6, Part 2 (Items 41, 42 and 43) ensure transfer refusal decisions that were made on applications under subsection 131AA(1) before the commencement time that are eligible for reconsideration or review can continue to be dealt with. This has the potential to promote Article 2(3) of the ICCPR - Right to an effective remedy. The options for reconsideration or review of existing transfer refusal decisions are designed to ensure in cases where the ACMA has refused an application, for example because it was not permitted under the matters ACMA must have regard to under subsection 131AB(2), the applicant's administrative law review rights are preserved. These items preserve and strengthen the application of the right in Article 2(3). Conclusion The Bill is compatible with human rights because it either promotes the protection of the relevant human rights, or any limitation on human rights is reasonable, necessary and proportionate. 8

ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS Term, acronym or abbreviation Meaning AAT Administrative Appeals Tribunal ACMA Australian Communications and Media Authority ACMA Act Australian Communications and Media Authority Act 2005 AFSA Australian Financial Security Authority AIP plan Australian Industry Participation plan AOC Australian Olympic Committee APS Australian Public Service Bankruptcy Act Bankruptcy Act 1966 BEEC Building Energy Efficiency Certificate BEED Act Building Energy Efficiency Disclosure Act 2010 CPI Consumer Price Index Defence Act Defence Act 1903 ELICOS Standards English Language Intensive Courses for Overseas Students Standards ESOS Act Education Services for Overseas Students Act 2000 GEMS Greenhouse and Energy Minimum Standards GEMS Act Greenhouse and Energy Minimum Standards Act 2012 IOC International Olympic Committee IP Intellectual property IRDA International Registration Designating Australia NVETR Act National Vocational Education and Training Regulator Act 2011 NVETR Transitional Provisions Act National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 OIP Act Olympic Insignia Protection Act 1987 9

Term, acronym or abbreviation Meaning PDF Portable Document Format SES Senior Executive Service TEQSA Tertiary Education Quality and Standards Agency TEQSA Act Tertiary Education Quality and Standards Agency Act 2011 the Bill Regulator Performance Omnibus Bill 2022 Trade Marks Act Trade Marks Act 1995 VET Vocational Education and Training 10

NOTES ON CLAUSES Preliminary Item 1 - Short title This item provides for the short title of the Bill upon its enactment by the Parliament to be the Regulator Performance Omnibus Act 2022. Item 2 - Commencement This item provides for the commencement of each provision in the Bill, as set out in the table. The table provides that sections 1 to 3 and anything else not covered in this table will commence the day the Bill receives the Royal Assent. Schedules 1 to 4 will commence the day after the Bill receives the Royal Assent. Schedule 5, Parts 1 to 3 will commence the day after the Bill receives the Royal Assent. Schedule 5, Part 4, Division 1 will commence the day after the Bill receives the Royal Assent. Schedule 5, Part 4, Division 2 will commence after the end of a period of six months beginning on the day the Bill receives the Royal Assent. Schedule 5, Part 4, Division 3 will commence the day after the Bill receives the Royal Assent. Schedule 5, Part 4, Divisions 4 and 5 will commence on a day or days to be fixed by Proclamation. However, if the provisions do not commence within a period of six months beginning on the day the Bill receives the Royal Assent, they will commence on the day after the end of that period. Schedule 5, Part 4, Division 6 will commence the day after the Bill receives the Royal Assent. Schedule 6 will commence the day after the Bill receives the Royal Assent. Item 3 - Schedules This item provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule and any other Item in a Sechedule operates according to its terms. 11

Schedule 1--Attorney-General Bankruptcy Act 1966 Item 1 - Subsection 5(1) (paragraphs (a) and (b) of the definition of statutory minimum) This item omits the amount of $5,000 from the definition of "statutory minimum" and substitutes it with the updated amount of $10,000 that is prescribed in the Bankruptcy Regulations 2021. Item 2 - Paragraph 12(1)(a) Item 2 reflects modern drafting practice by replacing "shall" with "must" in paragraph 12(1)(a). Item 3 - Paragraph 12(1)(c) Current paragraph 12(1)(c) provides that the Inspector-General in Bankruptcy (Inspector- General) shall from time to time obtain from Official Receivers and other officers and from registered trustees reports as to the operation of the Bankruptcy Act (the Act). Item 3 repeals paragraph 12(1)(c) and substitutes a new paragraph 12(1)(c). It removes the reference to "officers" which is outdated and includes a reference to "registered debt agreement administrators" and "the Official Trustee". This aligns with current paragraph 12(1A) which provides that both registered trustees and registered debt agreement administrators must provide a report to the Inspector-General where requested. Item 4 - Subsection 12(1A) Item 4 reflects modern drafting practice by replacing "shall" with "must" in paragraph 12(1A). Items 5-7 - Section 19B Items 5 and 6 repeal references to Official Receiver in current section 19B. They substitute it with a reference to the Inspector-General. The amendment reflects that it is the role of the Inspector-General, rather than the Official Receiver, to investigate trustees. This will facilitate the exercise of the Inspector-General's functions and duties under section 12 of the Act. Item 7 amends subsection 19B(1) to substitute a reference to "duties" with a reference to "functions or duties". This aligns with the heading of section 12 which refers to the "functions" of the Inspector-General. Item 8 - Subsection 50(1B) Current section 50 of the Act provides that a Court may direct a trustee to take interim control of a debtor's property before they become bankrupt in certain circumstances, and make orders in relation to the property. Such orders may be needed urgently, for example where there is a real risk that a debtor will dispose or transfer property beyond the reach of creditors, to hinder or delay the property becoming available in the event of bankruptcy. Under current 12

subsection 50(1), it is unclear if a Court must include a remuneration provision in orders made under this section. Item 8 inserts a new requirement into subsection 50(1B) so that if a Court directs a trustee to take control of the debtor's property, the Court must, in addition to specifying when the control is to end (new subparagraph 50(1B)(a)), make orders in relation to the trustee's remuneration (new subparagraph 50(1B)(b)). This confers on the Court a wide and general power to make orders in relation to the trustee's remuneration as it deems fit, acknowledging that making an accurate estimate of the trustee's remuneration at the time of appointment may not be possible. Items 9-11, 16 and 18-20 - Paragraph 77D(1)(a), subsections 77E(2) and (3), paragraphs 77E(4)(a) and (b), paragraph 149D(1)(c), paragraph 269(1)(a), subparagraphs 269(1)(aa)(i) and (ii), paragraphs 269(1)(ab), (ac) and (ad) These items repeal outdated indexation amounts referenced in subsection 304A(1) of the Act and substitute those amounts with the current indexed amounts as at 20 September 2021. The effect of these amendments is to ensure that references to indexable amounts wherever they occur in the Act are consistent with updated amounts specified in section 304A(1), which is also to be amended (see items 21-23 below). Item 12 - Section 139K (paragraph (a) of the definition of base income threshold amount) To replace bi-annual indexation on 20 March and 20 September each year, this item amends the definition of "base income threshold amount" to move to an annual indexation method on 1 July each year. Section 139K of the Act defines the base income threshold amount as 3.5 times the amount that is specified in column 3, item 2, Table B, point 1064-B1, Pension Rate Calculator A, in the Social Security Act 1991 (or a proportionally smaller amount if the contribution assessment period is less than one year). The actual income threshold amount that applies to a bankrupt is a set dollar amount that takes into account the number of dependants that a bankrupt has. It is calculated with reference to the base income threshold amount. The effect of the amendment is that the indexation for the base income threshold amount and annual income threshold amount will occur each financial year, from 1 July 2022, using the relevant 20 March base rate pension amount. If the particular date is on or after 1 July in a calendar year, then the relevant amount is in relation to the published figure from 20 March of that calendar year. If the particular date is before 1 July in a calendar year, then the relevant amount is in relation to the figure published in 20 March of the preceding calendar year. The move to annual indexation of various eligibility criteria and thresholds for allowable asset and income marks a departure from the current bi-annual indexation. The amendment will mean the Australian Financial Security Authority (AFSA) can provide simpler and clearer information for debtors and creditors. Also, insolvency practitioners, and broader users of the system such as financial counsellors will only need to update their systems and websites once a year. 13

Items 13-14 - Subsections 139T(2) and (4) Under subsection 139T(4), a trustee must make a determination on an income contribution liability in cases of hardship upon application ("hardship application") by a bankrupt not later than 30 days after the day on which the application is received. The effect of items 13 and 14 is to make clear that a hardship application by a bankrupt must include the satisfactory evidence required for the trustee to properly assess the application, and that the 30-day timeframe to assess the application only begins once the trustee has received an application that includes all the satisfactory evidence. In the absence of this evidence, a trustee may not be able to properly assess a hardship application. Accordingly, the 30-day timeframe will not commence until the applicant has provided satisfactory evidence to the trustee. Item 15 - Subsection 139W(4) This item repeals the requirement that a trustee must provide a bankrupt written notice setting out particulars of the assessment in all cases, and replaces it with a requirement that this only needs to occur in circumstances when the bankrupt has a contribution liability in the contribution assessment period that has been assessed. In accordance with section 139W, a trustee must calculate a bankrupt's likely income, the applicable income threshold and the income contribution a bankrupt is liable to pay after the commencement of a contribution assessment period. It is a more efficient use of time and resources for the trustee to provide details of an assessment only when the bankrupt has a contribution liability. The amendment is consistent with the duties of a trustee under section 19 of the Act to administer a bankrupt's estate as efficiently as possible by avoiding unnecessary expense. Item 17 - Subsection 185C(5) (definition of threshold amount) This item amends the definition of "threshold amount" at paragraph 185C(5) to move from bi-annual indexation to an annual indexation basis. This amendment to paragraph 185C(5) mirrors the amendments to section 139K at item 12. Section 185 of the Act sets out threshold requirements for a debtor to propose a debt agreement to the Official Receiver. There are threshold requirements with respect to income, unsecured debt and asset value. A debtor cannot propose a debt agreement if the "threshold amounts" are exceeded. Paragraph 185C(5) defines "threshold amount" as 7 times the amount that is specified in column 3, item 2, Table B, point 1064-B1, Pension Rate Calculator A, in the Social Security Act 1991. As with the amendment at item 12, the move to annual indexation marks a departure from the current method of indexation on the 20 March and 20 September each year. Items 21-23 - Subsection 304A(1) (paragraphs (a)-(j)) The amendments to these paragraphs update the indexation amounts prescribed in subsection 304A(1) to reference the current indexed amounts as at 20 September 2021. 14

Item 24 - Subsection 304A(1) (definition of index number) The amendment in item 24 to repeal the definition of index number is consequential to item 25, which establishes a new method for indexation under the Act. Item 25 - Section 304A(2) to (11) Certain dollar amounts specified in the Act are subject to indexation pursuant to section 304A such as the Official Receiver allowances and expenses specified at section 77D of the Act. Item 25 amends section 304A in order to establish a new method for indexation under the Act that will enable the indexable amounts specified at paragraph 304A(1) to be indexed on an annual basis, from 1 July 2022, using the Consumer Price Index for the preceding March quarter. In particular, subsection 304A(2) provides that, at the start of each financial year on or after 1 July 2021, a dollar amount expressed to be indexed under section 304A of the Act will be replaced by an amount worked out by multiplying the indexation factor for the indexation year with the dollar amount for the previous year. Subsection 304A(3) provides a formula for working out the indexation factor, which is calculated by dividing the Consumer Price Index for the March quarter immediately before the indexation year (known as the reference quarter) with the Consumer Price Index for the March quarter before the reference quarter (known as the base quarter). Subsection 304A(4) provides that an indexation factor is to be calculated to three decimal places. Subsection 304A(5) provides that if an indexation factor calculated in accordance with subsection (3) is less than one, the indexation factor is increased to one. Subsection 304(6) provides that calculations made under subsection (3) must be made using the index numbers published for the most recently published index reference period and must be made disregarding index numbers that are published in substitution for previously published index numbers. Subsection 304(7) to (11) are repealed as the rounding clauses are no long necessary for the purposes of the new indexation formula. This move to annual indexation marks a departure from the current method of quarterly indexation under the Act. The new methodology will allow AFSA to calculate figures in advance of their date of effect rather than on the day of CPI publication. The indexed amounts will continue to be published on the AFSA website. 15

Schedule 2--Defence Part 1--Repeal of the Cockatoo and Schnapper Islands Act 1949 The purpose of this Part is to repeal the whole of the Cockatoo and Schnapper Islands Act 1949. Cockatoo and Schnapper Islands Act 1949 Item 1 - The whole of the Act This item repeals the whole of the Cockatoo and Schnapper Islands Act 1949. 16

Part 2--Amendments to the Defence Act 1903 The purpose of this Part is to amend section 72TN of the Defence Act 1903 to correct an anomalous situation in the Woomera Prohibited Area administrative framework, so that the Minister can delegate relevant powers to the Secretary of Defence, in addition to the existing ability to delegate to Australian Public Service employees in the Department of Defence. Defence Act 1903 Item 2 - Before paragraph 72TN(1)(a) This item inserts the Secretary as someone to whom the Minister can delegate their power under section 72TF of the Defence Act. Item 3 - Before paragraph 72TN(2)(a) This item inserts the Secretary as someone to whom the Minister can delegate their power under paragraph 72TJ(1)(b) of the Defence Act. Item 4 - Subsection 72TN(2)(a) This item inserts the Secretary as someone to whom the Minister can delegate their powers to review certain decisions under section 72TM of the Defence Act. 17

Schedule 3--Education, Skills and Employment Part 1--Amendments relating to vocational education and training Division 1--Amendments National Vocational Education and Training Regulator Act 2011 Item 1 - Subsection 17(2) Current subsection 17(2) of the NVETR Act provides that, in deciding whether to grant an application, the National VET Regulator (the Regulator) must consider whether the applicant complies with: • the VET Quality Framework; and • the applicable conditions of registration set out in Subdivision B of Division 1 of Part 2 of the NVETR Act. Paragraph 11(b) of the ESOS Act provides that a provider or registered provider meets the registration requirements if, among other things, the ESOS agency for the provider is satisfied that the provider is complying, or will comply, with: • the ESOS Act; and • the national code; and • if the ELICOS Standards or Foundation Program Standards apply in relation to the provider - those Standards. This item amends subsection 17(2) to substitute the phrase "complies with" for the phrase "is complying, or will comply, with". The purpose of the amendment in Item 1 is to align the language of the test for registration under the NVETR Act with the language of the equivalent provision at paragraph 11(b) of the ESOS Act which similarly sets out the circumstances in which a provider meets the registration requirements under that Act (as outlined above). The amendment is also intended to remove any doubt that, in deciding whether to grant an application for registration or change of scope of registration, the Regulator must consider whether the applicant is complying with, or will comply with, the VET Quality Framework and registration conditions set out under the NVETR Act. Item 2 - Subsection 17A(3) This item amends subsection 17A(3) to substitute the word "The" for the phrase "If the report is published, the". The purpose of item 2 is to clarify that the requirement that an audit report prepared under subsection 17A(1) must not contain personal information only applies where the report is to be published. The amendment will streamline Commonwealth interactions by ensuring personal information can be included in non-published Regulator audit and compliance audit reports while appropriately protecting the privacy of affected individuals and entities. It will allow for more transparent engagement with regulated entities, and lead to improved regulatory outcomes. 18

Item 3 - Paragraph 33(2)(c) This item amends subsection 33(2)(c) to substitute the phrase "complies with" for the phrase "is complying, or will comply, with". The amendment to this paragraph is intended to achieve the same policy objectives as the amendment to subsection 17(2) in Item 2, but in the context of an application for change of scope of registration under the NVETR Act. Item 4 - Subsection 35(1C) This item amends subsection 35(1C) to substitute the word "The" for the phrase "If the report is published, the". The purpose of item 4 is to clarify that the requirement that a compliance audit report prepared under subsection 35(1A) must not contain personal information only applies where the report is to be published. The amendment will streamline Commonwealth interactions by ensuring personal information can be included in non-published Regulator audit and compliance audit reports while appropriately protecting the privacy of affected individuals and entities. It will allow for more transparent engagement with regulated entities, and lead to improved regulatory outcomes. Items 5-11 - Subsections 201(1), 201(2), 201(2)(a), 201(3), 203(1) (heading), 203(1) The overall purpose of the amendments under items 5 to 11 is to ensure that, where a reviewable decision is revoked on reconsideration, the Regulator may make such other decision as the Regulator thinks appropriate, and the entity subject to the decision has the option to apply for review of this decision directly to the AAT. The amendments will: • remove legal uncertainty about the internal review process for regulated entities by clarifying that where a new decision is made by the Regulator at reconsideration, the regulated entity will have the option to seek AAT review of that new decision; and • more closely align the reconsideration process under the NVETR Act with the internal review process in the TEQSA Act. This will, in turn, streamline Commonwealth interactions for entities that are also regulated by TEQSA given there is a significant overlap of education provider entities that are regulated by both schemes. Item 5 repeals subsection 201(1) and substitutes it with subsections 201(1) and 201(1A). New subsection 201(1A) allows the Regulator, when revoking a decision made under section 200, to make another decision that the Regulator considers to be appropriate. Item 6 amends subsection 201(2) to provide that the Regulator's reviewable decision must be reconsidered by persons specified by the subsection. This amendment better expresses the intent of the legislation that reconsideration is to be undertaken by the Regulator but can be delegated to the Regulator's staff in certain 19

circumstances. This will prevent any potential confusion about who is responsible for reconsidering the decision. Item 7 amends subsection 201(2)(a) to omit the phrase "under review". This amendment will ensure that references to decisions under reconsideration are consistent throughout subsection 201(2). Items 8 and 9 amend subsection 201(3) to insert the phrase "(except for the purposes of section 199)" after the phrase "has effect" and omit the phrase "original decision" in substitution for the phrase "reviewable decision". Item 10 repeals the heading of section 203(1) and substitutes it with the heading, "Review of reconsideration decision". Item 11 omits all words after "review of a" and replaces them with the words "decision of the National VET Regulator under subsection 201(1A)" to ensure that a person can seek AAT review of any reconsideration decision made under subsection 201(1A). Division 2--Application provisions National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 Item 12 - At the end of the Act Item 12 adds Schedule 6--Transitional provisions relating to Part 1 of Schedule 3 to the Regulator Performance Omnibus Act 2022 to the end of the NVETR Transitional Provisions Act. The purpose of Schedule 6 is to make transitional provisions to the NVETR Act for the purposes of the Bill. Item 1 - Definitions Item 1 defines terms for the purposes of Schedule 6. "Amending Part" means Division 1 of Part 1 of Schedule 3 to the Regulator Performance Omnibus Act 2022. "Commencement time" means the time this Schedule 6 commences. "Principal Act" means the NVETR Act. Item 2 - Application--registration Item 2 provides that the amendment made by the Bill to subsections 17(2) of the NVETR Act will apply to a registration application made after the commencement time. Item 3 - Application--audit report Item 3 provides that the amendment made by the Bill to subsections 17A(3) of the NVETR Act will apply to an audit report prepared before or after the commencement time. This will clarify that any audit reports prepared under subsection 17A(3) before or after the commencement time can include personal information where the reports will not be published. 20

Item 4 - Application--change of scope of registration Item 4 provides that the amendment made by the Bill to subsections 33(2)(c) of the NVETR Act will apply to a change of registration scope application made after the commencement time - i.e. the time the Schedule commences. Item 5 - Application--compliance audit report Item 5 provides that the amendment made by the Bill to subsection 35(1C) of the NVETR Act will apply to a compliance audit report prepared before or after the commencement time - i.e. the time the Schedule commences. This will clarify that compliance audit reports prepared under subsection 35(1C) before or after the commencement time can include personal information where the reports will not be published. Item 6 - Application--reconsideration of a reviewable decision Item 6 provides that the amendments made by the Bill to section 201 of the NVETR Act will apply to applications made under section 200 of the NVETR Act after the commencement time. These amendments will also apply before the commencement time if, immediately before the commencement time, a decision regarding the application has not already been made under section 201 of the NVETR Act. 21

Part 2--Amendment of the Tertiary Education Quality and Standards Agency Act 2011 The Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) sets out the requirements for the regulation of higher education, using a standards-based quality framework and principles relating to regulatory necessity, reflecting risk and proportionate regulation. The TEQSA Act establishes the Tertiary Education Quality and Standards Agency (TEQSA) as the regulator for the provision of education in the higher education sector, with functions including the registration of regulated entities as registered higher education providers and the accreditation of courses of study. The amendments will improve TEQSA's capacity to perform its functions by providing for additional flexibility in the treatment of applications for registration of higher education providers, accreditation of courses of study, and renewal of registration and course accreditation. This Part amends the TEQSA Act to: • allow TEQSA to extend the legislative deadline for decisions on applications for registration and accreditation, with the applicant's written consent; and • provide that a decision to reject an application for renewal of registration or for renewal of accreditation of a course of study takes effect on the date specified by TEQSA in the notice of the decision. The first measure implements the recommendation at paragraph 6.85 of Report 486: Regulatory Activities by the Joint Committee of Public Accounts and Audit. As noted in the Committee's report, allowing for an extension of the relevant legislative deadline with the applicant's written consent may reduce the necessity of applications for merits review, by allowing for an opportunity for TEQSA to receive and consider additional evidence which addresses concerns about an application. The second measure aligns the operation of relevant provisions of the TEQSA Act with section 10F of the Education Services for Overseas Students Act 2000, by providing that a decision not to renew registration or course accreditation takes effect on the date specified in the notice of the decision given to the affected provider. This measure provides for greater flexibility in assisting TEQSA to facilitate affected students to complete their course or undertake an orderly transition to a suitable alternative course. Tertiary Education Quality and Standards Agency Act 2011 Item 13 - Subsections 21(3) and (4) This item amends subsections 21(3) and (4) to allow TEQSA to determine a longer period than 9 months for a decision on an application for registration where the applicant consents, in writing, to the determination of the longer period. 22

Item 14 - Subsection 36(3) This item amends subsection 36(3) to provide that, if TEQSA decides to reject an application for renewal of registration, the decision takes effect on the day stated in the notice of the decision given to the provider applying for renewal. The amended provision does not specify a maximum period between the date on which the decision is made and the date on which the decision takes effect. However, a decision not to renew would be made in circumstances where TEQSA is not satisfied that an affected provider continues to meet the Threshold Standards. Further, the operation of Part 5A of the Act (as well as Part 5-1A of the Higher Education Support Act 2003 and Part 5 of the Education Services for Overseas Students Act 2000) provide existing mechanisms to support the transition of affected students. Accordingly, it is not intended that the period between the date of the decision and the date on which the decision takes effect will generally be longer than one month after the study period in which the notice of the decision has been given, to allow students to complete their studies and receive an award (where practicable) or transition to a suitable alternative course. Item 15 - Paragraph 37(c) This item amends paragraph 37(c) to provide that the notice of a decision about an application for renewal of registration must specify the date on which the decision takes effect. Item 16 - Subsections 49(3) and (4) This item amends subsections 49(3) and (4) to determine a longer period than 9 months for a decision on an application for accreditation of a course of study where the applicant consents, in writing, to the determination of the longer period. Item 17 - Subsection 56(3) This item amends subsection 56(3) to provide that, if TEQSA decides to reject an application for renewal of accreditation of a course of study, the decision takes effect on the day stated in the notice of the decision given to the provider applying for renewal. Matters relevant to the determination of the date on which a decision takes effect are set out at item 14 above. Item 18 - Paragraph 57(c) This item amends paragraph 57(c) to provide that the notice of a decision about an application for renewal of accreditation of a course of study must specify the date on which the decision takes effect. Items 19-20 - Section 183 (table items dealing with a decision under subsections 21(3) and 49(3)) These items amend the table at section 183, which sets out which decisions are reviewable decisions for the purposes of the Act, to replace references to subsections 21(3) and 49(3) with references to paragraphs 21(3)(a) and 49(3)(a) respectively. These amendments are made on the basis that it is unnecessary to provide for review of decisions under new paragraphs 21(3)(b) and 49(3)(b) respectively, on the basis that the applicant is the only 23

person affected by a decision under those paragraphs, and the paragraphs require the applicant's written consent for the decision to be made. Schedule 4--Health Part 1--Amendment of the Industrial Chemicals Act 2019 Industrial Chemicals Act 2019 Item 1 - Section 9 (definition of a UVCB substance) This amendment corrects an error in the definition of a UVCB substance, which is short for unknown or variable composition, complex reaction product or biological substance. Items 2-4 - Before subsection 177(1), subsection 177(1), after subsection 177(1) The Executive Director can delegate powers or functions to an Executive Level 1 officer (or a more senior officer) or equivalent, who is employed in the Department of Health, or to an Executive Level 1 officer (or more senior officer), or equivalent, in another non-corporate Commonwealth entity. Effective delegation is a fundamental component of good governance and risk management. It enables actions to be taken by people other than the named decision maker in circumstances where it is not practical or reasonable for the one decision maker to make all decisions themselves. The Industrial Chemicals Act 2019, therefore, enables delegations to be made to other officers of the Department (or other departments) at the executive level or above. Limiting delegations to people at the executive level ensures that people of appropriate seniority and experience are exercising decision-making powers, and supports a reasonable spread of workload within the organisation. The Industrial Chemicals Act 2019 also enables the Executive Director to delegate to people in other government departments. The Executive Director may do so if, for example, it is more administratively efficient and appropriate to do so, or if the relevant expertise resides in officers in the other department. The delegate must comply with any direction of the Executive Director when exercising powers or functions under a delegation. Item 3 substitutes part of existing subsection 177(1) to the effect that the Executive Director is able to delegate his or her powers and functions under any other Act or legislative instrument in addition to the Industrial Chemicals Act 2019. This amendment provides the administrative efficiency for the Executive Director to delegate his or her functions and powers under Acts other than the Industrial Chemicals Act 2019; for example, the Freedom of Information Act 1982. Item 4 adds subsection 177(1)(1A) which lists certain powers and functions of the Executive Director which are not delegable under subsection 177(1). These include the Executive Director's relevant chief executive powers and functions under the Regulatory Powers (Standard Provisions) Act 2014 and the Executive Director's powers and functions under the 24

Industrial Chemicals Environmental Management (Register) Act 2021, or rules made for the purposes of that Act. 25

Part 2--Amendments relating to the approval of pharmacists Division 1--Requests for Minister to approve pharmacists Approval of pharmacists The National Health Act 1953 (Act) provides that the Secretary of the Department of Health may upon application by a pharmacist, approve that pharmacist to supply pharmaceutical benefits at particular premises. Applications to establish a new pharmacy or relocate an existing pharmacy approved to supply pharmaceutical benefits must first be assessed against Rules determined by the Minister for Health and Aged Care (Minister) before the Secretary can consider granting approval to the pharmacist. Where an application does not meet the requirements of the Rules, section 90A of the Act provides the Minister with a discretionary power to substitute the Secretary's decision to reject an application because it did not meet the requirements of the Rules, with a decision approving the pharmacist to supply pharmaceutical benefits at particular premises. Section 90B of the Act stipulates the process by which a pharmacist may request the Minister to exercise discretionary power under section 90A to substitute a decision by the Secretary to not approve a pharmacist for the purpose of supplying pharmaceutical benefits at particular premises with a decision approving the pharmacist. These amendments reduce the timeframe in which the Minister may exercise this power by replacing the current two stage process (up to three months for each stage), with a single stage process of up to four months. This will reduce the significant administrative burden on staff resources and provide the community with more timely access to pharmaceutical benefits in circumstances where the Minister approves a request to exercise the discretionary power. In circumstances where the Minister decides not to exercise discretion to approve a request, the amendments prevent the applicant from making another request to the Minister for the same premises as the initial request, within 12 months of the initial request to the Minister, as the circumstances are unlikely to have changed. Delegation of form The Act also provides that the Minister may determine the form in which a request to the Minister must be made, and if the Minister does so, that such a request must be made on that form. The amendments provide for approval of the form to be delegated. This will remove the need for the Minister to approve what is essentially an administrative matter, and allow more timely changes to be made to the form as required. Australian Community Pharmacy Authority membership term Section 99N of the Act specifies the make-up of the membership of the Australian Community Pharmacy Authority (Authority), and the term of appointment at subsection 99N(5). The process for seeking nominations and subsequent endorsement of the nominees is administratively burdensome on nominating organisations and the Australian Government. The amendments increase the membership term from two years to three years, which will provide greater stability to the Authority and reduce administrative burden on nominating organisations and the Australian Government. 26

National Health Act 1953 Item 5 - Subsection 90A(5) This item repeals subsection 90A(5) as a consequential amendment required as a result of amendments to section 90B to repeal subsection 90B(4). Item 6 - Subsection 90B(4) This item repeals subsection 90B(4) to remove the requirement for the Minister to decide whether to consider a request to exercise the discretionary power under subsection 90A(2) within three months of the request being made. Item 7 - Subsection 90B(5) This item replaces the requirement that the Minister decide whether to exercise the discretionary power under subsection 90A(2) within 3 months of making a decision to consider a request, with a requirement that the Minister must make a decision whether or not to exercise the discretionary power under 90A(2) within 4 months after the day a request is received. Item 8 - Subsection 90B(6) This item is a consequential amendment required as a result of amendments to section 90B. Item 9 - Before subsection 90C(1) This item inserts a heading before subsection 90C(1) to identify that this subsection relates to proceedings before the Administrative Appeals Tribunal or a federal court. Item 10 - Subsection 90C(2) This item is a consequential amendment required as a result of amendments to section 90B to repeal subsection 90B(4). Item 11 - At the end of section 90C This item prevents a request to the Minister being made within 12 months of the Minister making a decision in relation to a previous request by the same applicant for the same premises on the basis that circumstances are unlikely to have changed within this period. Item 12 - Subsection 90D(1) This item is a consequential amendment required as a result of amendments to section 90B to repeal subsection 90B(4). Item 13 - Paragraph 105AE(1)(c) This item is a consequential amendment required as a result of amendments to section 90B to repeal subsection 90B(4). 27

Item 14 - Application This item provides that these amendments apply to requests made by a pharmacist under section 90B(1) on or after the commencement of this item (subject to subitem (2)), and that the restriction described under Item 7 applies where the previous request is made on or after the commencement of this item. Division 2--Other amendments National Health Act 1953 Item 15 - Paragraph 6(1)(ab) This item provides for delegation of approval of the form on a which a request to the Minister must be made by amending section 6(1) of the Act. Item 16 - Subsection 99N(5) This item provides that the term of appointment to the membership of the Authority be increased from 2 years to 3 years by amending subsection 99N(5) of the Act. Item 17 - Application This item provides that the amendment to the term of appointment for a member of the Authority applies to any appointments made by the Minister on or after the amendment described at item 16 commences, or to any appointment in force immediately before the amendment described at item 16 commences. 28

Part 3--Amendment of the Private Health Insurance Act 2007 This Part makes minor administrative amendments to various sections of the Private Health Insurance Act 2007 (the Act) to provide greater clarity around legislative timeframes. Private Health Insurance Act 2007 Item 18 - Subsections 23-15(2) and 23-30(2) This item amends the Act to remove reference to "14 days" and replaces it with "7 business days", consistent with an amendment to the timeframe made by the Chief Executive Medicare on 17 February 2020 under the Private Health Insurance (Notifications Under the Premiums Reduction Scheme) Determination 2020 (F2020L00138). Item 19 - Section 23-40 This item repeals section 23-40 which is a redundant clause no longer in operation. Items 20 - Subparagraph 75-10(a)(ii) This item removes reference to "7 days, or a longer number of days" and replaces it with "7 business days, or a longer period". This provides clarity that a reference to "seven days" means "seven business days", providing insurers and their auditors with greater certainty. Item 21 - Paragraph 99-1(2)(b) This item removes reference to "7 days" and replaces it with "7 business days". This provides clarity that a reference to "seven days" means "seven business days", providing insurers and their auditors with greater certainty. 29

Schedule 5--Industry, Science, Energy and Resources Part 1--Amendment of the Australian Jobs Act 2013 Australian Jobs Act 2013 Item 1 - After section 21 This item inserts new section 21A to the Act to provide the Australian Industry Participation Authority (the Authority) with the power to issue a notice of suspension or cancellation of an approved Australian Industry Participation plan (AIP plan). Subsection 21A(1) provides for notices of suspension or cancellation where a project does not involve establishing a new relevant facility and subsection 21A(2) provides for notices of suspension or cancellation where a project involves establishing a new relevant facility. The Authority may issue a notice in writing under subsections 21A(1) and (2), where it is satisfied that it is reasonable in the circumstances, the project has not been completed and the Authority considers the project is, has been, or is likely to be, delayed for a period of 12 months or more. For example, this section could allow for the Authority to suspend or cancel a plan where: • A project proponent has gone into administration and cannot complete the project; • A project is delayed for more than 12 months as a result of approval delays or financing issues; or • A project is put on hold for more than 12 months because of project proponent investment decisions. Subsection 21A(3) provides that the Authority may give notice under subsection 21A(1) or (2) on the Authority's own initiative or on application made to the Authority by the project proponent for the project, or if the project involves establishing a new relevant facility - on application made to the Authority by the operator of the facility. Subsection 21A(4) provides that a notice issued under subsections 21A(1) and (2) must include the reasons for the suspension or cancellation and if the plan is suspended, specify the day the suspension starts and the period of suspension and, if the plan is cancelled, the date of effect of the cancellation. Subsection 21A(5) provides for the purposes of subparagraph 21A(4)(b)(ii), how the period of suspension may be specified. A period of suspension may be specified with reference to a specified day, a fixed or ascertainable period or the occurrence of specified future event, for example, the date upon which the project proponent will receive funding for the project. Subsection 21A(6) provides that where an approved AIP plan has been suspended, a project proponent or operator of the facility will not need to comply with its obligations under sections 24 to 26 in relation to the project and if the project involves establishing a new relevant facility, the facility, during the period of suspension. This will mean project proponents and operators of facilities will not be required to comply with their AIP plan and submit compliance reports during the period of suspension. 30

Subsection 21A(7) provides that where an approved AIP plan has been cancelled, a project proponent or operator of the facility will not need to comply with the obligations under sections 24 to 26 and 43 to 49 from the date of effect of cancellation. This means project proponents and operators of facilities will not be required to comply with their AIP plan and submit compliance reports or advise the Authority if they become or cease to be project proponents or operators of the facility. If the project once again becomes subject to the Australian Jobs Act 2013, the project proponent is required to notify the Authority as per section 41. Subsection 21A(8) provides that the Authority may vary the period of suspension of an approved AIP plan for a project by notice in writing to the project proponent and if the project involves establishing a new relevant facility, the operator of the facility. For example, the project proponent has advised the Authority it is expecting further delays in making investment decisions and will not be able to recommence work on the project following the initial period of suspension. Subsection 21A(9) provides that the Authority may revoke the suspension of an approved AIP plan by giving written notice to the project proponent or operator of the facility. For example, where a project proponent has resolved its financial issues and intends to recommence work on the project before the period of suspension has ended. Item 2 - Subsection 22(3) This item inserts new subsection 22(3). The effect of the subsection is that the Authority must publish the AIP plan summary on its website as soon as practicable after receiving it from the project proponent. This amendment will allow the Authority to upload the AIP plan summary as soon as practicable as opposed to the beginning of the day after it is received. For example, in circumstances where an AIP plan summary is received on a Friday afternoon or the afternoon before a Public Holiday. Under the new subsection, the Authority will publish the summary on the website for a longer period, that is, the duration of the project or where a project establishes a new relevant facility, until the end of the 2-year period beginning when the project is completed. This allows for suppliers to view the details of the project for the project entirety. Item 3 - Section 112 (after table item 8) This item inserts new table items 8A and 8B into the reviewable decisions table after existing table item 8 as follows: • 8A A decision under section 21A to suspend or cancel an approved AIP plan. • 8B A decision under section 21A to extend a suspension of an approved AIP plan. This means an applicant can seek a review of a decision by the Authority to suspend or cancel an approved AIP plan. It also means a review can be sought of a decision by the Authority to extend a suspension of an approved AIP plan. Item 4 - Application provision--suspension or cancellation of approved AIP plan This item provides for the application of new section 21A as inserted by the Bill. Section 21A applies in relation to an approved AIP plan, regardless of when the plan was approved. 31

Item 5 - Application provision--summary of steps This item provides for the application of the amendments to section 22 made by the Bill. Section 22 applies in relation to a summary of steps given to the Authority, regardless of when the summary was given. 32

Part 2--Amendments relating to building energy efficiency certificates This Part makes limited but necessary amendments to the existing Building Energy Efficiency Disclosure Act 2010 (BEED Act) to streamline the provision of a Building Energy Efficiency Certificate (BEEC) in specific circumstances. This Part establishes a power for the issuing authority to revoke and reissue a BEEC when the original BEEC has been found to contain an error. Currently, only accredited assessors apply for a BEEC and the issuing authority does not have the power to correct BEECs once issued. The amendments avoid the requirement for the original assessor to submit a new application to fix an error in a BEEC. The amendments in this Part address a rare, but potentially significant, delay to ensure building owners can sell or lease a building in compliance with the BEED Act, including in circumstances where the original assessor is not available to complete a new application. The amendments in this Part reduce the building owner's administrative burden, and ensure they receive the updated BEEC and comply with the BEED Act in a timely way. In addition, they reduce the administrative burden on the issuing authority to engage another assessor should the original assessor be unable to complete a new application. Building Energy Efficiency Disclosure Act 2010 Item 6 - Section 3 (definition of building energy efficiency certificate) This item amends the definition of building energy efficiency certificate in section 3 of the BEED Act. The intention of the amendment is to amend the definition of a building energy efficiency certificate to include a building energy efficiency certificate re-issued by the issuing authority. Item 7 - Section 3 (definition of current) This item amends the definition of current in section 3 of the BEED Act. The intention of the amendment is to amend the definition of current to include the period set out in a building energy efficiency certificate re-issued by the issuing authority, cross-referencing the new section 13C. Item 8 - Subsection 13(1) (definition of issue day) This item amends the definition of issue day in section 13(1) of the BEED Act. The intention of the amendment is to amend the definition of issue day to include the day a building energy efficiency certificate re-issued by the issuing authority, cross-referencing the new section 13C. Item 9 - After section 13A New section 13B Issuing authority may revoke building energy efficiency certificates This item inserts a new section into the BEED Act, establishing a power for the issuing authority to revoke a building energy efficiency certificate. The intention of the amendment is to allow the issuing authority to revoke a building energy efficiency certificate where: 33

• the issuing authority has issued the building energy efficiency certificate; • the building energy efficiency certificate contains an error; and • the issuing authority has taken all reasonable steps to notify, in writing, the building owner and original assessor of its intention to revoke the building energy efficiency certificate. This amendment is required to facilitate the power for the issuing authority to correct the error and reissue a building energy efficiency certificate. Together, the new sections assist in ensuring the accuracy of building energy efficiency certificates. Errors in certificates can arise in a number of ways. For example, incorrect lighting selection or incorrect lighting counts for an area. The amendment cross-references Part 4 of the BEED Act, as a method to determine whether the building energy efficiency certificate contains an error. Under Part 4, there are well established, extensive and transparent audit processes in place under the energy efficiency and lighting energy efficiency assessment elements of the building energy efficiency certificate. Assessors are consulted throughout the audit and this new section does not seek to replicate that process. Ordinary natural justice principles would apply to making these decisions in addition to the notifications required by paragraph 13B(c). New section 13C Building energy efficiency certificates--reissue This item inserts a new section into the BEED Act, establishing a power for the issuing authority to reissue a building energy efficiency certificate if revoked under the new section 13B. The intention of the amendment is to allow the issuing authority to reissue a building energy efficiency certificate where: • a building energy efficiency certificate has been revoked, under the new section 13B; • the issuing authority is satisfied that the energy efficiency and lighting energy efficiency assessments are appropriate; and • the issuing authority has taken all reasonable steps to notify, in writing, the building owner and original assessor of its intention to reissue the building energy efficiency certificate. The reissued building energy efficiency certificates contain the same elements as a building energy efficiency certificate under the current power under section 13A of the BEED Act. This will ensure building energy efficiency certificates issued under the two powers are consistent. A building energy efficiency certificate reissued under the new power will have the same end date as the original building energy efficiency certificate. This ensures data on the building energy efficiency certificate is current. 34

Item 10 - Section 67 (after table item 1B) This item amends section 67 to include the new sections 13B and 13C. The intention of this amendment is to provide that a decision made to revoke or reissue a building energy efficiency certificate is a reviewable decision which can be appealed to the Administrative Appeals Tribunal. Item 11 - After paragraph 71(1A)(a) This item amends subsection 71(1A) to include the new sections 13B and 13C. The purpose of this amendment is to allow for the Secretary to delegate the new powers to revoke and/or reissue a building energy efficiency certificate. Currently, the power to issue building energy efficiency certificate under section 13A of the BEED Act is able to be delegated to an APS employee who holds or performs the duties of an Executive Level 2 position, or an equivalent position. As such, this amendment allows for similar powers to be delegated to the same level. The nature and complexity of the decisions to issue or reissue building energy efficiency certificates mean this level of delegation is appropriate and provides for timely decision making in the administration of the scheme. 35

Part 3--Amendments relating to the Greenhouse and Energy Minimum Standards Act 2012 This Part amends the Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) in response to an independent review of the Act and issues raised by stakeholders. The amendments make it easier for the GEMS Regulator to administer the legislation and easier for suppliers to comply with its requirements. The amendments, while minor, support the achievement of the objects of the Act by giving flexibility to help more energy efficient products be available in the Australian market. These amendments: • reduce unnecessary administrative burden for both the GEMS Regulator and suppliers; • streamline processes for those regulated by the Act; • increase flexibility to reduce regulatory burden for business; and • reduce suppliers' need to seek exemptions from requirements. The GEMS Act established a national framework for regulating the energy efficiency of products supplied or used within Australia, implementing Australian Government and Commonwealth, State and Territory Energy Ministers' commitments to establish national legislation to regulate energy efficiency and labelling standards for appliances and other products. The national framework replaced seven state and territory legislative frameworks, harmonising the regulation of equipment energy efficiency. The GEMS Act permits the Australian Government to set mandatory minimum efficiency requirements for products to drive greater energy efficiency for regulated products. The Act also allows the Australian Government to set nationally consistent labelling requirements to increase Australians' awareness of options to improve energy efficiency and reduce energy consumption, energy costs and greenhouse gas emissions. Suppliers are required to register GEMS products prior to supplying or offering to supply those products in Australia. This Part addresses some of the recommendations provided in the 2018 review of the GEMS Act. Division 1--Customised products The purpose of this Division is to make it easier for suppliers of customised products to comply with the requirements of the GEMS Act by moving the point at which the product is required to be registered with the GEMS Regulator to when the product is supplied. While they would still need to comply with the requirements of the relevant GEMS determination, the changes will remove unnecessary compliance burden for suppliers of these low volume products which are designed to meet the specifications of a particular customer. Greenhouse and Energy Minimum Standards Act 2012 Item 12 - Section 15 This item updates the guide to Part 3--Requirements for suppliers and commercial users of GEMS products in section 15 to clarify that certain kinds of customised GEMS products may 36

be offered for supply without being registered. This is a consequence of the amendments to section 17. Item 13 - After subsection 17(2) This item inserts two new subsections into section 17. The effect of item 13 is that suppliers of customised products would be required to register the product when it is supplied rather than when it is offered for supply. This would remove the burden for suppliers who are currently registering models when they offer a product for sale. For these customised products, it is not confirmed the customer will proceed with the purchase at that point, and therefore the supplier is not certain the model will actually be manufactured. The arrangements will only apply to customised models and are intended to address issues associated with registering these low-volume, bespoke products, particularly those supplied for commercial or industrial uses. These products may be made to measure (for example, in the case of commercial refrigeration) or designed to requirements for a particular setting (for example, heating and cooling a large building). Generally GEMS products need to be registered prior to being offered for supply in Australia. The current registration requirements work well for large volume consumer products regulated by the GEMS Act and these new arrangements are not intended to apply for those products. The requirements uphold consumer choice by ensuring the validity of information supporting purchasing decisions. To ensure the new arrangements continue to support consumer choice, the new section 17(2B) will allow the GEMS Regulator to prescribe by legislative instrument which GEMS determinations the customised products registration arrangements apply to. As some GEMS determinations cover both large volume standardised products as well as bespoke products, the arrangements may be limited to just some products covered by a determination. This may, for example, be based on product class or products that are sold in low volumes. The legislative instrument would be disallowable in accordance with the ordinary arrangements in the Legislation Act 2003 and the GEMS Regulator would consult before making such instruments, consistent with the requirements in that Act. Item 14 - At the end of section 17 Item 14 adds a new subsection to clarify that the supplier is responsible for proving that the model is a bespoke product in proceedings for a civil penalty order. The accompanying note clarifies that a defendant who seeks to rely on subsection (2A) bears the burden of proving that the model is a bespoke product. This is implemented for consistency with subsection 17(8) and on the basis that the defendant has the relevant information to prove whether the exception applies. Division 2--Deemed compliance The purpose of this Division is to provide greater flexibility for how suppliers of GEMS products can demonstrate compliance with a GEMS determination. 37

Greenhouse and Energy Minimum Standards Act 2012 Item 15 - After section 27 Item 15 inserts a new section 27A into the Act. Section 27A will allow the GEMS Regulator to approve, for example, alternative methods that can be used to test products to demonstrate compliance with requirements in a GEMS determination. This will support the adoption and promotion of the latest energy efficient technologies already available in other markets and remove the risk of inadvertently restricting efficient products from entering the Australian market. This is intended to provide flexibility within the scheme to recognise new testing methods that are at least equivalent and are adopted in other markets and remove the need for those suppliers to conduct testing specifically for the Australian market. The declaration may apply only in specified circumstances or if specified conditions are complied with. This allows safeguards to be imposed, which ensure that the original intent of each GEMS determination is not undermined by the declaration. The legislative instrument would be disallowable in accordance with the ordinary arrangements in the Legislation Act 2003 and the GEMS Regulator would consult before making such instruments consistent with the requirements in that Act. It is expected that entities wishing to benefit from such instruments would present their case to the GEMS Regulator for consideration of whether an instrument is made. Subsection 27A(3) ensures that any such declaration is likely to promote the objects of the Act. For example, a declaration that allowed tests with materially lower accuracy or assurance would not promote the objects of the Act. A declaration that allowed and facilitated efficient products covered by paragraph 4(b) of the Act into the Australian market, while maintaining the intent of the relevant GEMS determination, would be likely to promote the Act's objects. The GEMS Regulator must have evidence to be satisfied on this before making such a determination. Paragraph 27A(3)(b) allows for disallowable regulations to further limit the circumstances when these determinations can be made. This ensures that the boundaries of the declaration making power can remain appropriately constrained and fit for purpose. Item 16 - At the end of Divison 2 of Part 4 Item 16 inserts a new section 34A. When a GEMS determination refers to matters contained in other instruments that are subsequently amended or updated, section 34A gives the GEMS Regulator the power to declare that the updated version of the instrument applies. This only applies if the GEMS Regulator is satisfied that the changes are of a minor nature. The GEMS Regulator would have regard to the extent and substantive impact of the changes and how they impact the intent of the relevant GEMS determination in coming to this view. This is necessary because relevant testing standards for products are frequently subject to minor updates which would otherwise require a new GEMS determination to be made. Delay in applying the relevant updates could leave suppliers needing to use outdated methods or different methods than are necessary for the entry of their products into other markets. Nonetheless, it is important that any updated incorporated instrument is first assessed by the 38

GEMS Regulator to ensure that the intent of the GEMS Determination is not compromised by the update. When this power is utilised, the GEMS Regulator will provide notification through the relevant departmental website, currently energyrating.gov.au, and through targeted information channels, including through updates via the GEMS registration database to ensure everyone is aware of the alteration. The legislative instrument would be disallowable in accordance with the ordinary arrangements in the Legislation Act 2003 and the GEMS Regulator would consult before making such instruments consistent with the requirements in that Act. Division 3--Enabling timely and more targeted exemptions This Division amends section 37 to improve the timeliness of exemptions during the transition to new requirements. It will also allow exemptions to be more targeted. This would provide flexibility to grant exemptions relating to minor issues while ensuring they support the availability and promotion of energy efficient products. Greenhouse and Energy Minimum Standards Act 2012 Item 17 - Section 22 This item updates the guide to Part 4--GEMS determinations to clarify that Division 4 of the Part 4 allows product models to be exempted from requirements, or aspects of requirements, of GEMS determinations. This is a consequence of the amendments to section 37. Item 18 - Subsection 37(1) Item 18 provides the GEMS Regulator with the power to exempt products from particular aspects of any relevant requirement in a determination. This would be in addition to the GEMS Regulator's capacity to exempt products from the whole of any relevant requirement. Adding this power will allow exemptions to be more focused. Should a supplier be unable to meet one aspect of a requirement, for example a particular aspect of how testing is conducted, they could apply to be exempt from only that aspect of the requirement. An example of this could be where during testing of a dishwasher an alternate/equivalent detergent is able to be used when testing in accordance with the Standard. Currently the only exemption option available to the GEMS Regulator if the mandated test detergent is unavailable is to exempt the model from the GEMS Labelling requirement. As a result, the manufacturer would be unable to display an Energy Rating Label and there would be a negative impact to consumer choice due to reduced information at the point of sale. Item 19 - After subsection 37(1) Item 19 inserts a new subsection (1A) which allows the GEMS Regulator to grant exemptions from GEMS determinations which have been made but are not yet in force. This would provide certainty for suppliers during transitional periods when new requirements are introduced by aligning the timing for when exemptions can be granted with when products can be registered against the GEMS determination. 39

Division 4--Product classes The purpose of this Division is to introduce greater flexibility into how classes of products can be defined in a GEMS determination. This will enable better alignment with international and overseas standards when the policy intent of a GEMS determination is for harmonisation. It could also be used in GEMS determinations to reduce double regulation of products and exclude products that cannot be effectively regulated. Greenhouse and Energy Minimum Standards Act 2012 Item 20 - Subsection 11(2) (note 1) Item 20 removes the note from subsection 11(2) as the new subsection (2A) will clarify the intent. Item 21 - Subsection 11(2) (note 2) This change corrects the numbering of notes in subsection 11(2). Item 22 - After subsection 11(2) The new subsection (2A) provides further guidance on the range of ways a GEMS determination may specify a class of product. For example, this change introduces flexibility to allow intended use of a product rather than just the size specifications for registration to be the basis for a product class. The list of matters is not closed, and the subsection is intended to provide flexibility for how product classes can be described or identified. The wording is the same as the existing note under subsection 11(2) but includes the "intended or expected end use of products". Division 5--Other requirements Greenhouse and Energy Minimum Standards Act 2012 Item 23 - Subsection 27(3) This item repeals and substitutes subsection 27(3). This would allow "other requirements" (section 27) to be made under determinations which have labelling requirements but do not set minimum standards for energy use by repealing section 27(3). The existing section 27(3) limits specifying other requirements relating to the performance of products, or their impact on human health or the environment, to determinations which specify GEMS level requirements. Requirements relating to product performance and the impact on human health could usefully apply to GEMS labelling requirements rather than just GEMS level requirements. Substituting section 27(3) would align with the original intention expressed in the Explanatory Memorandum to the Greenhouse and Energy Minimum Standards Bill 2012 which included an example for product performance requirements of a washing machine being required to remove a certain amount of soil from clothes, that is, for it to be fit for its intended purpose. The amendment would avoid the need to impose GEMS level requirements in a determination when GEMS labelling requirements, with appropriate supporting section 27 requirements, would achieve the same emissions reduction outcome with lower compliance 40

costs. The relevant requirements relating to the performance of products, or their impact on human health or the environment, would need to be imposed to support the effectiveness of the GEMS labelling requirements related to energy use or greenhouse gas emissions. Division 6--Constitutional basis Greenhouse and Energy Minimum Standards Act 2012 Item 24 - Section 3 Item 24 updates the guide to the Act in section 3 to clarify that Division 5 of Part 1 of the Act sets out the constitutional application of the GEMS Act. This is a consequence of the repeal of section 21 and introduction of section 7A. Item 25 - After paragraph 4(a) A new subsection 4(aa) is inserted after subsection 4(a). This subsection includes reference to the obligations Australia has under the Paris Agreement. Under Article 4.2 of the Paris Agreement Australia has obligations to take domestic action to reduce emissions in line with its Nationally Determined Contribution. Australia has recently updated its Nationally Determined Contribution to include a commitment to net zero emissions by 2050 and seven low emissions technology stretch goals. The GEMS level requirements and GEMS labelling requirements, with associated requirements under section 27, play an important role in reducing energy use and emissions in Australia and can help support low emissions energy systems. Item 26 - Section 5 This item inserts a definition of the Paris Agreement into the Act, consistent with the definition used in other Commonwealth legislation and instruments. Item 27 - After section 7 A new section 7A is inserted after section 7. This section sets out the constitutional application of the GEMS Act in a more direct way, but consistent with, existing section 21. The drafting removes any ambiguity in how section 21 would apply and how the relevant obligations in the Act relating to supplies, offers to supply or use for commercial purposes are interpreted. While the external affairs power provides broad support for the Act and relevant requirements, it is acknowledged that the relevant activities can also be regulated by the Act consistent with other heads of legislative power, such as the corporations power and trade and commerce power. The drafting is consistent with current practice for these provisions in Commonwealth legislation. Item 28 - Section 15 This item omits a reference to Division 4, which is repealed by item 29. Item 29 - Division 4 of Part 3 Item 29 repeals Division 4 of Part 3 as the constitutional limitation provision in section 21 has been remade as section 7A. 41

Division 7--GEMS Regulator Greenhouse and Energy Minimum Standards Act 2012 Items 30-33 - Section 69, at the end of subsection 70(2), subsection 70(3), section 76 (note) These items amend relevant provisions in the Act so that the GEMS Regulator position can be occupied by a person acting as an SES employee, and that references to the GEMS regulator refer to the substantive or acting SES employee in that position. This will improve the efficiency, timeliness and effectiveness of the administration of the Act when the substantive GEMS Regulator is absent from duty or when long-term acting arrangements are in place. 42

Part 4--Amendments relating to trade marks etc. Division 1--Trade marks that contain, or consist of, olympic motto etc. This Division makes changes to the Olympic Insignia Protection Act 1987 (OIP Act) to make clear that the International Olympic Committee (IOC) and the Australian Olympic Committee (AOC) can register their own insignia as trade marks, and to provide clearer authority for the rejection of applications to register trade marks not applied for by these bodies. This will ensure the OIP Act achieves its intended purposes, one of which is to permit the registration of Olympic insignia trade marks by the AOC and IOC, while preventing registration and unauthorised use of such trade marks. Currently, Chapter 2 of the OIP Act provides protection for certain Olympic insignia such as the Olympic motto and the Olympic symbol. Section 19 currently provides that trade marks containing these Olympic insignia cannot be registered. The existing section 19 has created uncertainty around whether the IOC and AOC can obtain trade mark registration of Olympic insignia. Further, the existing section 19, which prevents registration of a trade mark, also creates a conflict with the Trade Marks Act, which requires registration of trade marks unless a ground for rejection or opposition is established. The Trade Marks Act provides grounds for rejecting a trade mark only if its use would be contrary to law, but the OIP Act prevents registration of trade marks containing relevant Olympic insignia, not their use. The intention of the amendment is to provide a more explicit ground for rejecting a trade mark during examination or opposition if it contains relevant Olympic insignia where the applicant is not the AOC or the IOC. Olympic Insignia Protection Act 1987 Item 34 - Section 1A This item amends the simplified outline of Chapter 2 of the OIP Act to reflect the changes made by this Division. Item 35 - Subsection 2(1) This item amends section 2 to provide additional definitions for the purpose of Chapter 2. The item adds a definition of protected trade mark, which is used in new section 19 to determine which trade marks' use and therefore registration would be contrary to law (if not owned by the IOC or AOC). For the purposes of the Olympic Insignia Protection Act, protected trade marks include those containing, or consisting of, certain signs: the Olympic motto, the Olympic symbol, the prescribed artistic work of an Olympic torch and flame (if any), and artistic works in relation to which designs have been registered under the OIP Act. Protected trade marks also include trade marks containing, or consisting of, signs that so nearly resemble one of the above signs as to be likely to taken for it. 43

The definition of protected trade mark covers a very similar range of trade marks to those whose registration was prohibited by old section 19, but with wording adjusted to align with the Trade Marks Act's concept of "sign" and "trade mark". The item provides a definition for the IOC in Chapter 2 that is the same as that already in Chapter 3. It also provides definitions for sign and trade mark. These definitions align the wording of the OIP Act with that of the Trade Marks Act. Item 36 - Section 19 This item repeals and replaces section 19. The new section provides that, for the purposes of the contrary to law provisions in paragraph 42(b) of the Trade Marks Act, use of a "protected trade mark" is taken to be contrary to law. The definition of "protected trade mark" is added to section 2 by the preceding item, and would cover, for example, a trade mark containing or closely resembling the Olympic motto. However, the new section also provides a clear exception where the owner of the trade mark is the AOC or the IOC. Use by these persons is not deemed contrary to law. This provision provides no exception for a person authorised to use Olympic insignia. While the AOC or IOC may authorise the use of Olympic insignia, authorised users are not permitted to register a trade mark containing Olympic insignia. In practice, this means that if a party other than the AOC or IOC applies for a protected trade mark, the Registrar of Trade Marks (the Registrar) or their delegate will be required to raise a ground for rejection under paragraph 42(b) of the Trade Marks Act in the course of examination. On the other hand, if the person is the AOC or the IOC, the ground for rejection will clearly not apply, and the trade mark can proceed to acceptance and registration (subject to the other provisions of the Trade Marks Act). Item 37 - Application provision This item provides for the circumstances in which the amendments in this Division apply. Paragraph (1)(a) provides that the provisions apply to trade mark applications which have a filing date after the commencement of this item. Paragraph (1)(b) provides for the circumstances in which these provisions apply to international registrations designating Australia (IRDAs). An IRDA is a "request made under Article 3ter(1) or (2) of the [Madrid] Protocol for extension to Australia of the protection resulting from the international registration of a mark". The provisions of this Division will apply to IRDAs as follows: • For an IRDA that is a request under Article 3ter(1) of the Madrid Protocol, the provisions of this Part will apply if the IRDA has a date of international registration after commencement of this item. 44

• For an IRDA that is a request under Article 3ter(2) of the Madrid Protocol, the provisions of this Part will apply if the IRDA has a date of recording after commencement of this item. Sub-item (2) applies the definitions in Part 17A of the Trade Mark Regulations 1995 ("Regulations") for "IRDA", "date of international registration" and "date of recording" to this item. These definitions are found in regulation 17A.2. Division 2--Renewal of registration This Division amends the Trade Marks Act to align grace periods for renewal of a trade mark registration (involving payment of a fee) to a consistent 6 month duration. Once a trade mark is registered, trade mark rights generally commence to have effect from the filing or priority date, whichever is earlier. The duration of protection is 10 years from the filing date, after which renewal is required to maintain the registration. Trade mark registrations can be renewed every 10 years. If a trade mark is not renewed before the end of its 10 year term, there is a 6 month "grace period" in which the trade mark can be renewed for an extra fee. These renewals are handled under Division 2 of Part 7 of the Trade Marks Act. In some cases, registration of a trade mark application can be delayed for more than 10 years from the date of filing of the trade mark. In those cases, the rights of registration date back to the filing or priority date more than 10 years earlier meaning it is effectively "overdue" for renewal. For those trade marks, Division 3 of Part 7 of the Trade Marks Act provides for payment of renewal fees. The grace period for renewal in these cases is currently 10 months. Nearly all trade mark applications are registered well in advance of the 10 year anniversary of their filing. However, exceptionally, some trade marks are still not yet registered (or "pending") 10 years after filing. As of September 2021, only 20 of 80,000 total pending applications were filed more than 10 years ago. The difference in grace periods and the additional 4 months for these few cases is not necessary. The intention of this amendment is to provide a consistent 6 month grace period for all trade mark registrations. Trade Marks Act 1995 Items 38-40 - Paragraph 80F(b), section 80G (heading) and paragraph 80G(1)(b) These items amend the relevant provisions of the Act to provide for a new grace period of 6 months for the late payment of a renewal fee where a registration has been delayed for more than 10 years. This replaces the previous 10 month grace period for this payment. Item 41 - Subsection 128(2) This item amends subsection 128(2), as a consequence of the change to the length of the grace period available under section 80G. Currently, subsection 128(2) prevents the bringing of an action for infringement of a trade mark if the infringement occurred after expiry of a trade mark, but before its renewal in the "10 month" period available under section 80G. As the grace period is now 6 months, this item adjusts the wording of the subsection. 45

Item 42 - Application provision This item provides for the circumstances in which the amendments in this Division apply. The provisions apply in respect of trade marks which are entered on the Register (under section 69 of the Trade Marks Act) after commencement of this Division. However, the previous provisions will apply to trade marks that were entered on the Register before the commencement of this item. Division 3--Revocation of registration This Division amends the Trade Marks Act to update provisions relating to revoking registration of a trade mark when a third party has taken steps to start an opposition, but the steps have been overlooked. If the trade mark is not opposed, or if an opposition is not processed in a timely fashion, the trade mark application proceeds to registration. Trade mark oppositions start with the filing of a notice of opposition. The Trade Marks Act allows the Regulations to prescribe that notices of opposition are filed in multiple components or "steps". The Regulations currently require a two-step process for filing notices of opposition. On rare occasions, the Registrar may fail to realise a component of a notice of opposition has been filed, and register the trade mark. Currently, section 84B of the Trade Marks Act partially addresses this situation, by requiring that a registration of a trade mark must be revoked if an opposition (or extension of time for opposition) to registration was filed within the prescribed timeframe but has not been taken account of, so long as the Registrar becomes aware of that failure within one month of the date of registration. This section aims to provide procedural fairness to opponents, whose timely filed documents should prevent registration until the opposition could be properly considered. However, currently, section 84B requires all components of the notice of opposition to be filed before revocation, when if any component of the notice is filed, fairness requires that registration should not occur. If any component is filed but disregarded, the registration should be revoked. This Division therefore amends section 84B so that failing to take into account any component of a notice of opposition (or an application to extend time to file such a component) will trigger a revocation of registration. Trade Marks Act 1995 Item 43 - Subparagraphs 84B(a)(i) and (ii) This item amends subparagraph 84B(a)(i), so that revocation of registration of a trade mark is triggered by the filing of a component of a notice of opposition, rather than requiring a notice of opposition in its entirety. 46

This item also amends subparagraph 84B(a)(ii), so that revocation of registration of a trade mark is triggered by the filing of an application to extend time to file a component of a notice of opposition, rather than just by an application for extension of time for a notice of opposition. Item 44 - Paragraph 84B(b) This item amends paragraph 84B(b), so that revocation is triggered by the Registrar's failure to take into account a component of a notice of opposition or an application to extend the time to file any such component, rather than by failing to take into account the opposition or application to extend the time to file the opposition, in its entirety. Item 45 - Application provision This item provides for the circumstances in which the amendments in this Division apply. The provisions apply in respect of trade marks which are entered on the Register (under section 69 of the Trade Marks Act) after commencement of this item. Division 4--Restoration of trade mark to Register This Division amends the Trade Marks Act to permit the restoration of a trade mark to registered status if an extension of time (EOT) is obtained to file evidence (or take other prescribed steps) in an opposition to removal of the trade mark registration for non-use. Under the Trade Marks Act, trade mark registrations that have not been used for a certain period (as specified by the Act), or for which there was no intention to use, may be removed from the Register through the filing of a non-use removal application. A non-use removal application may be opposed - typically by the owner of the trade mark. After the notice of opposition is filed, the opposition proceedings before the Registrar are dealt with according to the Regulations. A failure by the opponent to take steps required by the Regulations in the timeframes allowed can lead to the trade mark being removed from the Register. The opponent can request an EOT to extend the time periods for taking these steps in appropriate circumstances. However, in some cases the trade mark might have already been removed, and it cannot be restored to the Register. Existing section 98 of the Trade Marks Act does allow restoration after grant of an EOT for the filing of a notice of opposition to the removal, but not after an EOT for other prescribed steps required by the Regulations, including filing evidence or requesting a hearing. This could be unfair to the opponent to the non-use removal, particularly where there are compelling circumstances justifying a grant of the EOT. This amendment will require restoration of a trade mark if an EOT is granted to take a prescribed step in an opposition to a non-use removal, and the step is taken within the extended period. 47

Trade Marks Act 1995 Item 46 - Section 98 (heading) This item amends the heading of section 98, to reflect the greater range of circumstances in which restoration of a trade mark may occur. Item 47 - Section 98 This item inserts the number (1) in front of the existing provision providing for restoration, due to the addition of subsection (2) by the following item. Item 48 - At the end of section 98 (before the note) This item adds subsection (2) to section 98, requiring the restoration of a trade mark in particular prescribed circumstances. It is anticipated that prescribed circumstances will include the filing of evidence in support of an opposition, or requesting a hearing, under regulations 9.16 and 9.17 of the Regulations. The subsection can only apply if a trade mark has been removed, after: • an opposition to a non-use removal application was filed; • the opponent failed to do a "relevant thing" (as prescribed in regulations) in relation to the opposition; and • the application for non-use removal was taken to be unopposed. If these circumstances are established, the trade mark must be restored if: • the Registrar extends the time to do the "relevant thing" under the regulations; and • the "relevant thing" is in fact done within the extended time period. If a trade mark is restored, it is taken to have never been removed. The Regulations currently provide strict criteria for the EOT for taking steps in oppositions to non-use removals. This will ensure that restorations only occur in appropriate circumstances. Item 49 - Application provision This item provides for the circumstances in which the amendments in this Division apply. The provisions apply in respect of trade marks which are removed from the Register for non- use after commencement of this item. Division 5--Official Journal etc. This Division amends the Trade Marks Act to clarify that the Registrar of Trade Marks (the Registrar) may make information relating to trade marks available to the public in a flexible 48

way, including through an online search portal as a replacement for the Official Journal of Trade Marks (the Official Journal). The Trade Marks Act requires the publication of a variety of information in the Official Journal. Under current section 226 of the Trade Marks Act, the Registrar must issue the Official Journal at regular intervals. Historically, the Official Journal was made available in paper form and then electronically in PDF. To improve public access to information on IP rights, trade mark matters required to be issued, published or advertised in the Official Journal are now available to the public on IP Australia's website and via an online search portal, currently known as the Australian Trade Mark Search. The Official Journal is therefore no longer required. To ensure there is no confusion caused by potentially inconsistent information being published (and readily available) on Australian Trade Mark Search and in the Official Journal, publication of the Official Journal is to cease. This Division amends the Trade Marks Act to remove references to the Official Journal. Information that was formerly required to be issued, published or advertised in the Official Journal will instead be required to be published in accordance with the Trade Marks Regulations 1995 (the Regulations). Trade Marks Act 1995 Item 50 - Reader's guide This item omits "Official Journal" from the list of terms defined in section 6, as the term is no longer used following the amendments in this Division. Item 51 - Subsection 6(1) This item repeals the definition of "Official Journal", as the term is no longer used following the amendments in this Division. Items 52, 54, 56-57 and 59-67 - Paragraph 34(b), subsection 65A(3), paragraph 71(a), subsection 83A(3), subsection 95(2) and (3), subsection 110(3), paragraph 175(4)(b), paragraph 176(3)(b), subsection 213A(3), subsection 213B(3), subsection 213C(4), subsection 223AA(3), subsection 224(5) These items repeal the requirement to advertise particular matters in the Official Journal and replace them with the requirement to publish in accordance with the Regulations. The Registrar will still be required to make these matters public through some means, but not necessarily through a periodic journal. The Regulations will set out the relevant ways in which the information must be made public. 49

Item 53 - Section 65, 65A (heading) These items omit the term "advertised" from the headings of these sections, and replace it with "published", consistent with the changes to the text made by item 54. Items 55 and 58 - Paragraphs 65A(5)(a) and 83A(7)(a) These items omit the term "advertise" and replace it by "publish", as a consequence of the changes to subsections 65A(3) and 83A(3) by items 52 and 57. Item 68 - Section 226 This item repeals and replaces the existing section 226. Existing subsection 226(1) requires the Registrar to issue an Official Journal of Trade Marks, and this provision is repealed. Although the Registrar will no longer be required to issue an Official Journal, they will still be required to make certain information available to the public in accordance with the Regulations. New section 226 re-enacts the substance of existing subsection 226(3), which allows the Registrar to prepare, publish and sell documents relating to trade marks, as the Registrar thinks fit. Items 69-72 - Subsection 242(4), paragraph 243(4)(b), subsection 244(5), subparagraph 247(2)(a)(ii) These items omit references to "in the Official Journal" from provisions in Part 22, Division 3. Part 22, Division 3 relates to matters pending immediately before repeal of the Trade Marks Act 1955. There are no such matters remaining. The references to the Official Journal are being omitted to prevent any confusion, given all other references to the Official Journal will also be repealed. Item 73 - Application provisions This item provides for the circumstances in which the amendments in this Division apply. For decisions to be published under sections 34, 175 and 176, subitem (1) provides that this Division applies if the relevant decision is made after the commencement of this item, or if the decision has been made before the commencement, but has not been advertised as at commencement. For example, if a decision to reject a trade mark is made shortly before commencement, but has not yet been advertised at commencement, this Division applies to the publication of the rejection under section 34. For amendments to be published under sections 65A or 83A, subitem (2) provides this Division applies if the amendment is requested after commencement of this item. For registrations to be published under section 71, subitem (3) provides this Division applies if the trade mark is registered after commencement of this item. 50

For non-use applications to be published under section 95, and applications for extension of time to be published under section 224, subitem (4) provides this Division applies if the application is made after the commencement of this item. For an assignment or transmission of a trade mark registration recorded under Section 110, subitem (5) provides this Division applies if the recording occurs after commencement, whether the application was made before, on, or after the commencement of this item. For determinations made under sections 213A or 223AA, subitem (6) provides this Division applies if the determination is made after commencement of this item. For directions made under sections 213B or 213C, subitem (7) provides that this Division applies if the direction is made after commencement of this item. Division 6--Spent provisions Patents Act 1990 This Division repeals a number of the transitional and savings provisions in the Patents Act 1990. Currently the Patents Act 1990 (the 1990 Act) contains several transitional and saving provisions to ensure that patents granted under the Patents Act 1952 (the 1952 Act) would continue to be treated in the same way after the 1952 Act was repealed. These provisions are in sections 231-236 of Chapter 23. Moreover, section 238 provides that the Commissioner and Deputy Commissioner that were in office before the commencement of the 1990 Act can continue to be in office. The last patent protected under the 1952 Act expired in February 2016, and the six year statutory limitations period on actions for infringement will expire in February 2022. This has rendered sections 231-236 redundant, as there will no longer be any patent rights for which these provisions apply. Section 238 is also now redundant, as the current Commissioner and Deputy Commissioner have been appointed under sections 207 and 208 of the 1990 Act. Removing redundant transitional and savings provisions is in line with good regulatory practice and ensures that the statute remains up to date and only contains relevant provisions. Item 74 - Section 3 (list of definitions) This item omits the term "1989 Amending Act" from the list of terms defined in the dictionary in Schedule 1 to the 1990 Act. This amendment is a consequence of item 43 below that removes "1989 Amending Act" from the dictionary. Item 75 - Sections 231 to 236 and 238 This item repeals sections 231 to 236 and 238 of the 1990 Act as they are redundant and no longer required, for the reasons discussed in the introduction above. 51

Item 76 - Schedule 1 (definition of 1989 Amending Act) This item repeals the definition of "1989 Amending Act" from the dictionary. The definition is no longer used in the 1990 Act as a consequence of the amendments made by the preceding item. 52

Schedule 6--Infrastructure, Transport, Regional Development and Communications Part 1--Amendments relating to the Australian Communications and Media Authority Schedule 6 repeals the ACMA's power to create Divisions, delegate authority to Divisions, and for Divisions to delegate authority. Divisions were originally intended to improve the efficiency of decision making by the Authority at a time when the Authority was largely made up of part-time members. This power is no longer used as the structure of the Authority has changed. The removal of Divisions would simplify and modernise ACMA's governance framework and provide greater clarity for stakeholders around how ACMA makes decisions. Schedule 6 also inserts a provision that requires the Minister to have regard to the collective expertise and balance of the Authority when nominating a person for appointment. This schedule will commence on the day after this Act receives the Royal Assent. Australian Communications and Media Authority Act 2005 Item 1 - Section 3 (definition of Division) This item repeals the definition of Division in section 3. Item 2 - After subsection 20(1) This item inserts a provision for the responsible Minister to have regard to the collective expertise and balance of the Authority when nominating a person for appointment. A non- exhaustive list of relevant fields is included to guide the Minister's consideration. Item 3 - Division 3 of Part 4 This item repeals Division 3 of Part 4 removing the ability for ACMA to create Divisions. Item 4 - Sections 50 and 52 This item repeals sections 50 and 52 removing the ability for ACMA to delegate to a Division. Item 5 - Section 53 (heading) This item omits "other than Divisions" in the heading of section 53. Item 6 - Subsections 53(1) and (2) This item omits references to section 52 which is being repealed. Radiocommunications Act 1992 Item 7 - Subsection 122A(1A) This item repeals subsection 122A(1A) about delegating the power to issue certificates of proficiency to a Division of the ACMA. 53

Item 8 - Subsection 122A(2) This item repeals subsection 122A(2) and substitutes with an updated clause to remove reference to a Division of the ACMA. The provision otherwise remains unchanged in substance. Item 9 - Subsection 122A(3) This item omits part of subsection 122A(3) and substitutes with an updated clause to remove reference to a Division of the ACMA and to delegations by ACMA to a Division. The provision otherwise remains unchanged in substance. Item 10 - Subsection 238(1) This item omits part of subsection 238(1) and substitutes with an updated clause to remove reference to a Division of the ACMA and to delegations by ACMA to a Division. The provision otherwise remains unchanged in substance. Item 11 - Subsection 238(3) This item repeals subsection 238(3) about delegating to a Division of the ACMA. Item 12 - Paragraph 238(4)(a) This item omits part of paragraph 238(4)(a) to remove a reference to a redundant provision. Telecommunications Act 1997 Item 13 - Section 295H (note) This item omits part of section 295H (note) and substitutes with an updated clause to remove reference to section 50 of the ACMA Act which is being repealed. The provision otherwise remains unchanged in substance. Item 14 - Subsection 441(1A) This item repeals subsection 441(1A) about delegating to a Division of the ACMA. Item 15 - Subsection 441(2) This item omits part of subsection 441(2) and substitutes with an updated clause to remove a reference to subsection 441(1A) which is being repealed. The provision otherwise remains unchanged in substance. Item 16 - Subsection 441(3) This item repeals subsection 441(3) and substitutes with an updated clause to remove reference to a Division of the ACMA. The provision otherwise remains unchanged in substance. 54

Item 17 - Subsection 441(4) This item omits part of subsection 441(4) and substitutes with an updated clause to remove reference to subsection 441 (1A) and sections 50 and 52 of the ACMA Act, which are being repealed. The provision otherwise remains unchanged in substance. Item 18 - Subsection 459A(2) This item repeals subsection 459A(2) about delegating to a Division of the ACMA. Item 19 - Subsection 459A(3) This item repeals subsection 459A(3) and substitutes with an updated clause to remove reference to a Division of the ACMA. The provision otherwise remains unchanged in substance. Item 20 - Subsection 459A(4) This item omits part of subsection 459A(4) to remove reference to a Division of the ACMA. The provision otherwise remains unchanged in substance. Item 21 - Subsection 459A(5) This item omits part of subsection 459A(5) and substitutes with an updated clause to remove reference to sections 50 and 52 of the ACMA Act which are being repealed. The provision otherwise remains unchanged in substance. Item 22 - Paragraph 491(3)(b) This item omits part of paragraph 491(3)(b) and substitutes with an updated clause to remove reference to a Division of the ACMA. The provision otherwise remains unchanged in substance. Item 23 - Paragraph 491(5)(b) This item omits part of paragraph 491(5)(b) and substitutes with an updated clause to modernise the language. The provision otherwise remains unchanged in substance. Item 24 - Paragraph 491(5)(c) This item repeals paragraph 491(5)(c) to remove reference to delegating to a Division of the ACMA. 55

Part 2--Amendments relating to radiocommunications etc. Division 1--Amendments Radiocommunications Act 1992 Item 25 - Section 33 This item repeals section 33 of the Act, which deals with the publication of, and consultation on, a spectrum plan or a frequency band plan. When this requirement was introduced it ensured that adequate consultation would be undertaken. However, since the introduction of general consultation provisions in the Legislation Act 2003, this specific requirement for consultation is no longer required. This amendment will remove unnecessary prescription, with the ACMA having well established and understood consultation practices in place under the general obligation for rule makers under the Legislation Act 2003 providing a simpler and consistent approach. Item 26 - Section 131AA (heading) This item is consequential to the amendments made by items 27 and 28. This item repeals and substitutes the heading of section 131AA to reflect that there is no longer a requirement to apply for the transfer of apparatus licences. Item 27 - Subsection 131AA(1) This item repeals and substitutes subsection 131AA(1), so that, subject to this section and section 131AC, the licensee of an apparatus licence may, at any time before the licence is due to expire, transfer the licence to another person. The fundamental distinction between this version and the previous version is that the licensee is no longer required to apply for the transfer of apparatus licences. Furthermore, the revised subsection clarifies that section 131AA(1) is subject to the existing provisions in both 131AC and 131AA, which provide limits on permissible transfers. Item 28 - Subsections 131AA(2) and (3) This item repeals the subsections that provide authority for the ACMA to approve different forms for different applications and that place conditions on applications that if not followed would render the application invalid. Following the amendments set out in item 27 (the removal of the requirement to apply for an apparatus licence) these subsections are now obsolete. Item 29 - Section 131AB (heading) This item is consequential to the amendments in item 30. This item repeals and substitutes the heading of section 131AB to reflect that notifying the ACMA so that the registration on the Register of Radiocommunications Licences can be updated is now the necessary action by the parties to effect a transfer of an apparatus licence. Item 30 - Subsections 131AB(1) and (2) This item repeals the subsections that provide the ACMA may transfer an apparatus licence into the name of the transferee, and that specify matters that the ACMA must and may have 56

regard to in deciding whether to transfer the licence. They are replaced by the following subsections: Subsection 131AB(1) provides the parties must give to the ACMA such information about the transfer as the ACMA requires for the purpose of amending the Register of Radiocommunications Licenses to take account of the transfer. Subsection 131AB(2) provides the transfer cannot take effect before the Register is amended under Part 3.5 to take account of the transfer. Subsection 131AB(2A) provides the ACMA may vary the apparatus licence to give effect to the transfer by specifying in it as the licensee the person to whom the licence was transferred. The new arrangements establish a similar process for the transfer of apparatus licences as the process for the assignment of spectrum licences under part 3.2. The new arrangements detail the actions the ACMA must take to give effect to transfers agreed and notified by the parties. The change from applications for transfer to transfers the ACMA is required to update on the Register will facilitate faster and simpler transfers between users of the spectrum and support efficient use of the spectrum. The parties, that is the licensor and the licensee, are required to provide the ACMA with the necessary information about the transfer. Items 31-33--Section 134 and Section 136 Item 33 proposes to repeal section 136 of the Act, which deals with consultation on variations and revocations of class licences. The specific and prescriptive requirements imposed upon the ACMA by this section when seeking to vary or revoke class licences are no longer required due to the introduction of general consultation provisions in the Legislation Act 2003, with the ACMA having well established and understood consultation practices in place under these general obligations for rule makers providing a simpler and consistent approach. Item 32 inserts a new subsection into section 134, which deals with varying class licences. The new subsection 134(2) preserves requirements from the repealed subsection 136(1A). New paragraph 134(2)(a) imposes a requirement on the ACMA, before varying a class licence in accordance with subsection 33(3) of the Acts Interpretation Act 1901, if the variation of the class licence would affect the spectrum allocated, to be allocated or to be re-allocated by issuing or re-issuing spectrum licences, to be satisfied that the variation would not result in unacceptable levels of interference to the operation of radiocommunications devices operated, or likely to be operated, under spectrum licences. The ACMA must also be satisfied that the variation of the class licence would be in the public interest. New paragraph 134(2)(b) preserves the requirement from paragraph 136(1A)(b) for ACMA to consult all licensees of spectrum licences who may be affected by the proposed variation of the class licence. The retention of this provision provides certainty to spectrum licensees that they will be consulted on any proposed variations that may affect them. This is consistent with the provisions governing the issue of class licences in paragraph 138(2)(b) of the Act. Item 31 is a mechanical provision to allow for the introduction of the new subsection into section 134. 57

Item 34 - Paragraph 148(d) This item amends paragraph 148(d) to substitute "section 131AA" for "section 131AB" so that the ACMA must, as practicable, make the changes to the information in the Register about an apparatus licence that the ACMA considers are necessary or convenient in order to take into account any transfer of the licence under section 131AA. This amendment is consequential to the amendments in item 30 and item 27. Item 35 - Section 152 (heading) This item is consequential to the amendments made by item 37. This item amends the heading to reflect the change to subject specific information contained in the Register to confidentiality. Item 36 - Section 152 This item is consequential to the amendment made by item 37. This item reflects the inclusion of an additional subsection which necessitated renumbering the existing provision as subsection 152(1). Item 37 and 44 - At the end of Section 152, information in the Register This item provides for personal information to be excluded from public inspection and subject to confidentiality in circumstances that the ACMA considers appropriate. In making this decision, the ACMA will consider the purpose and advantages of having this information on the Register including its role in reducing the risk of interference, facilitating compliance and promoting transparency. These benefits will be weighed against any claims made by the licensee. Item 44 is an application provision to provide for the amendments set out in item 37 to protect the disclosure of the addresses of licensees in circumstances where the ACMA finds it appropriate regardless of when it was entered into the Register. The application of this provision relates to items 35, 36 and 37. Item 38 - Subsection 262(3) This item repeals paragraph 262(3) which required the ACMA to give a copy of each advisory guideline it makes to the Minister and substitutes it with a provision to continue the existing requirement to publish each advisory guideline in any way the ACMA thinks fit. Item 39 - Paragraph 285(ma) This item modifies paragraph 285(ma) to enable persons to apply to the ACMA for reconsideration of a refusal to vary an apparatus licence under section 131AB(2A). This amendment retains the administrative law right to challenge the ACMA's decision to refuse to vary an apparatus licence. This decision will now occur after the transfer under the new subsection 131AA(1) in item 27. 58

Division 2--Application and transitional provisions Item 40 - Definitions Item 40 of Division 2 provides relevant definitions for the Schedule. Items 41-43 - Reconsideration of transfer refusal decision if reconsideration period has not ended, pending application for reconsideration of transfer refusal decision, review by the Administrative Appeals Tribunal of pre- commencement transfer refusal decisions These items ensure transfer refusal decisions that were made on applications under subsection 131AA(1) before the commencement time that are eligible for reconsideration or review can continue to be dealt with. Item 41 permits persons to apply for reconsideration of decisions by the ACMA and the Administrative Appeals Tribunal (AAT). Item 42 provides the ACMA and AAT can continue to deal with any pending reconsideration applications after commencement. Item 43 provides the AAT can review any pre-commencement transfer refusal decision where the time for seeking review has not ended. The options for reconsideration or review of existing transfer refusal decisions are designed to ensure in cases where the ACMA has refused an application, for example because it was not permitted under the conditions of section 131AA or determinations made under section 131AC, the applicant's administrative law review rights are preserved. Item 44 - Information in the register This item provides that subsection 152(2) of the Act applies in relation to information in the Register whether it was entered into the Register before or after the commencement time. 59

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