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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023-2024
The Parliament of the
Commonwealth of Australia
THE SENATE
As read a third time
Defence Capability Assurance and
Oversight Bill 2024
No. , 2024
A Bill for an Act to establish the Defence Capability
Assurance Agency and the Inspector-General of
Defence Capability Assurance, and for related
purposes
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 3
5
Definitions ......................................................................................... 3
6
Act binds the Crown .......................................................................... 6
7
Extension to external Territories ....................................................... 6
8
Extra-territorial application ............................................................... 6
Part 2--Defence Capability Assurance Agency
7
Division 1--Introduction
7
9
Simplified outline of this Part ............................................................ 7
Division 2--Establishment and functions
9
10
Establishment .................................................................................... 9
11
Functions ........................................................................................... 9
12
Powers ............................................................................................. 11
13
Defence Capability Assurance Agency does not have
privileges and immunities of the Crown .......................................... 11
14
Access to information, premises and materiel ................................. 12
15
General directions ............................................................................ 12
16
Providing reports and advice to project staff and
decision-makers ............................................................................... 12
17
Reporting to the Defence Minister and National Security
Committee of the Cabinet ................................................................ 13
18
Reporting to the Committee ............................................................ 13
19
Industry partner ............................................................................... 14
Division 3--Director of the Defence Capability Assurance
Agency
16
20
Director............................................................................................ 16
21
Functions of the Director ................................................................. 16
22
Director to act in accordance with directions of Board .................... 16
23
Appointment .................................................................................... 17
24
Acting appointment ......................................................................... 17
25
Terms and conditions ...................................................................... 18
26
Remuneration .................................................................................. 18
27
Leave of absence ............................................................................. 18
28
Other paid work ............................................................................... 19
ii
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
29
Resignation ...................................................................................... 19
30
Termination of appointment ............................................................ 19
Division 4--Board of the Defence Capability Assurance Agency
21
Subdivision A--Establishment and functions of the Board
21
31
Establishment of the Board .............................................................. 21
32
Functions of the Board .................................................................... 21
Subdivision B--Board members
21
33
Membership ..................................................................................... 21
34
Appointment .................................................................................... 22
35
Acting appointments ........................................................................ 23
36
Terms and conditions ...................................................................... 24
37
Remuneration .................................................................................. 24
38
Leave of absence ............................................................................. 24
39
Other paid work ............................................................................... 25
40
Resignation ...................................................................................... 25
41
Termination of appointment ............................................................ 25
Subdivision C--Meetings of the Board
26
42
Convening meetings ........................................................................ 26
43
Presiding at meetings ....................................................................... 26
44
Quorum............................................................................................ 26
45
Voting at meetings ........................................................................... 27
46
Conduct of meetings ........................................................................ 27
47
Minutes ............................................................................................ 27
48
Decisions without meetings ............................................................. 27
Division 5--Staff, contractors and other persons assisting
29
49
Permanent staff ................................................................................ 29
50
Contractors ...................................................................................... 29
51
Other persons assisting the Defence Capability Assurance
Agency on a shorter-term basis ....................................................... 29
Division 6--Other matters
31
52
Requirement to be cleared for security purposes ............................. 31
53
Defence Capability Assurance Agency must comply with
defence regulatory framework ......................................................... 31
54
Delegation by Director .................................................................... 31
Part 3--Inspector-General of Defence Capability Assurance
33
Division 1--Introduction
33
55
Simplified outline of this Part .......................................................... 33
Division 2--Establishment and functions
34
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
iii
56
Inspector-General ............................................................................ 34
57
Functions of the Inspector-General.................................................. 35
Division 3--Inquiries
37
58
Conduct of inquiries ........................................................................ 37
59
Power to obtain information and documents ................................... 38
60
Entry to premises occupied by a monitored agency ......................... 40
61
Security of monitored agency documents ........................................ 40
62
Reporting of inquiry findings by the Inspector-General .................. 40
Division 4--Administrative provisions relating to the
Inspector-General
42
63
Appointment of the Inspector-General ............................................ 42
64
Acting appointments ........................................................................ 42
65
Remuneration .................................................................................. 43
66
Leave of absence ............................................................................. 43
67
Other paid work ............................................................................... 43
68
Other terms and conditions .............................................................. 44
69
Resignation ...................................................................................... 44
70
Termination of appointment ............................................................ 44
Division 5--Staff
46
71
Staff ................................................................................................. 46
72
Staff must be cleared for security purposes ..................................... 46
Part 5--Miscellaneous
47
104
Simplified outline of this Part .......................................................... 47
105
Protection from liability................................................................... 47
106
Rules ................................................................................................ 47
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
1
T
HIS
bill originated in the Senate, and,
1
having this day passed, is now ready for
2
presentation to the House of
3
Representatives for its concurrence.
4
R
ICHARD
P
YE
5
Clerk of the Senate
6
The Senate
7
7 February 2024
8
A Bill for an Act to establish the Defence Capability
9
Assurance Agency and the Inspector-General of
10
Defence Capability Assurance, and for related
11
purposes
12
The Parliament of Australia enacts:
13
Part 1--Preliminary
14
15
1 Short title
16
This Act is the
Defence Capability Assurance and Oversight Act
17
2024
.
18
Part 1
Preliminary
Section 2
2
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
106
The day after the day on which the
Consolidated Revenue Fund is appropriated
under an Act to the Department in which this
Act is administered for payment for the
purposes of this Act.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
The main objects of this Act are to:
14
(a) expedite the procurement of defence capability by providing
15
capability managers and the Australian Government a high
16
degree of confidence in the veracity and completeness of the
17
information they use to make timely, risk-informed
18
decisions; and
19
(b) provide assurance to capability managers, the Australian
20
Government and the Parliament that weapons systems will be
21
Preliminary
Part 1
Section 4
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
3
available when required and effective against extant and
1
emerging threats; and
2
(c) make existing defence procurement processes and
3
requirements more effective and efficient by ensuring:
4
(i) that risk assessment throughout the capability life cycle
5
is consistently conducted by people who have
6
appropriate qualifications and relevant experience; and
7
(ii) the assessment and reporting of risk is independent, free
8
from overt or unintended bias or influence; and
9
(iii) identified risk is transparent to decision-makers; and
10
(iv) proposed risk mitigations are effective.
11
4 Simplified outline of this Act
12
This Act provides for enhanced capability assurance of defence
13
materiel programs.
14
This Act establishes the Defence Capability Assurance Agency.
15
The Agency will conduct capability assurance of defence materiel
16
programs and establish an appropriately qualified workforce to
17
conduct test and evaluation and risk assessments for defence
18
materiel programs. The Agency also has a Defence Capability
19
Assurance Regulator function, which is to be facilitated by an
20
industry partner.
21
This Act establishes the Inspector-General of Defence Capability
22
Assurance. The Inspector-General will provide oversight of the
23
Defence Department, the Defence Force and the Defence
24
Capability Assurance Agency and can inquire into particular
25
defence materiel programs.
26
5 Definitions
27
In this Act:
28
AGO
means that part of the Defence Department known as the
29
Australian Geospatial-Intelligence Organisation.
30
Part 1
Preliminary
Section 5
4
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
ASD
means the Australian Signals Directorate.
1
Board
means the Board of the Defence Capability Assurance
2
Agency.
3
Board member
means a member of the Board and includes the
4
Chair of the Board and Deputy Chair of the Board.
5
Committee
means a Parliamentary Joint Statutory Committee with
6
oversight over defence.
7
decision-makers
, for a defence materiel program, means any of the
8
following to the extent they are engaged in making decisions
9
regarding the program:
10
(a) any officer or employee of the Commonwealth or an
11
authority of the Commonwealth (including a Minister and a
12
member of the Defence Force);
13
(c) any committee or other body comprised of such persons,
14
including the Cabinet or a Committee of the Cabinet.
15
defence agency
means:
16
(a) the Defence Department; or
17
(b) the Defence Force; or
18
(c) the Defence Capability Assurance Agency; or
19
(d) the Office of the Inspector-General of Defence Capability
20
Assurance; or
21
(e) any Commonwealth entity (within the meaning of the
Public
22
Governance, Performance and Accountability Act 2013
), not
23
mentioned in the preceding paragraphs, which is in the same
24
portfolio as the Defence Department.
25
Defence Capability Assurance Regulator function
: see
26
subsection 11(2).
27
Defence Department
means the Department of State that deals
28
with defence and that is administered by the Defence Minister.
29
defence domains
means the following defence operational
30
domains:
31
(a) information and cyber;
32
Preliminary
Part 1
Section 5
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
5
(b) maritime;
1
(c) air;
2
(d) space;
3
(e) land.
4
defence materiel program
means a project or combination of
5
projects engaged in by or on behalf of the Commonwealth for the
6
acquisition and sustainment of particular materiel for the Defence
7
Force.
8
Defence Minister
means the Minister administering section 1 of
9
the
Defence Act 1903
.
10
DIO
means that part of the Defence Department known as the
11
Defence Intelligence Organisation.
12
Director
means the Director of the Defence Capability Assurance
13
Agency.
14
head
means:
15
(a) in relation to the Defence Department--the Secretary of the
16
Department; or
17
(b) in relation to the Defence Force--the Chief of the Defence
18
Force; or
19
(c) in relation to the Defence Capability Assurance Agency--the
20
Director; or
21
(d) in relation to the Office of the Inspector-General of Defence
22
Capability Assurance--the Inspector-General; or
23
(e) in relation to any other defence agency--the person holding,
24
or performing the duties of, the principal office in respect of
25
the agency.
26
Inspector-General
means the Inspector-General of Defence
27
Capability Assurance.
28
materiel
means any major equipment or system (including aircraft,
29
vessels, vehicles, weapons and networks) intended for use for
30
defence operational purposes.
31
monitored agency
means:
32
Part 1
Preliminary
Section 6
6
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(a) the Defence Department; or
1
(b) the Defence Force; or
2
(c) the Defence Capability Assurance Agency.
3
paid work
means work for financial gain or reward (whether as an
4
employee, a self-employed person or otherwise).
5
quarter
means a period of 3 months beginning on 1 January,
6
1 April, 1 July or 1 October.
7
relevant member
, in relation to a defence agency:
8
(a) means a member of the staff of the defence agency, whether:
9
(i) an employee of the defence agency; or
10
(ii) a consultant or contractor to the defence agency; or
11
(iii) a person who is made available by another
12
Commonwealth or State authority or another person to
13
perform services for the defence agency; and
14
(b) for the Defence Force--includes a member of the Defence
15
Force; and
16
(c) for the Defence Capability Assurance Agency--includes a
17
Board member of the Defence Capability Assurance Agency.
18
rules
means rules made under section 106.
19
6 Act binds the Crown
20
(1) This Act binds the Crown in each of its capacities.
21
(2) However, this Act does not make the Crown liable to be prosecuted
22
for an offence.
23
7 Extension to external Territories
24
This Act extends to every external Territory.
25
8 Extra-territorial application
26
This Act extends to acts, omissions, matters and things outside
27
Australia.
28
Defence Capability Assurance Agency
Part 2
Introduction
Division 1
Section 9
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
7
Part 2--Defence Capability Assurance Agency
1
Division 1--Introduction
2
9 Simplified outline of this Part
3
There is to be a Defence Capability Assurance Agency.
4
The Agency's functions include:
5
(a)
conducting test and evaluation and assessing risks for
6
defence materiel programs; and
7
(b)
providing recommendations and advice on test and
8
evaluation and risk assessments to project staff and
9
decision-makers; and
10
(c)
developing and maintaining a competent test and
11
evaluation workforce with relevant qualifications and
12
experience, and fit for purpose test and evaluation
13
infrastructure; and
14
(d)
reporting to the Defence Minister and a Parliamentary
15
Joint Statutory Committee with oversight over defence.
16
In addition, the Agency has a Defence Capability Assurance
17
Regulator function, to be facilitated by an industry partner. This
18
function is to establish, maintain and regulate appropriate standards
19
for the test and evaluation workforce and test and evaluation
20
infrastructure.
21
There is to be a Director and a Board of the Defence Capability
22
Assurance Agency.
23
The Defence Capability Assurance Agency can engage staff and
24
contractors, and other persons may assist the Agency.
25
Persons performing duties for the Defence Capability Assurance
26
Agency must have security clearances as appropriate for their
27
duties.
28
Part 2
Defence Capability Assurance Agency
Division 1
Introduction
Section 9
8
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
The Defence Capability Assurance Agency must comply with any
1
applicable regulatory requirements of the Defence Force.
2
Defence Capability Assurance Agency
Part 2
Establishment and functions
Division 2
Section 10
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
9
Division 2--Establishment and functions
1
10 Establishment
2
(1) The Defence Capability Assurance Agency is established by this
3
section.
4
(2) The Defence Capability Assurance Agency:
5
(a) is a body corporate; and
6
(b) must have a seal; and
7
(c) may acquire, hold and dispose of real and personal property;
8
and
9
(d) may sue and be sued.
10
Note:
The
Public Governance, Performance and Accountability Act 2013
11
applies to the Defence Capability Assurance Agency. That Act deals
12
with matters relating to corporate Commonwealth entities, including
13
reporting and the use and management of public resources.
14
(3) The Defence Capability Assurance Agency's seal is to be kept in
15
such custody as the Board directs and must not be used except as
16
authorised by the Board.
17
11 Functions
18
(1) The Defence Capability Assurance Agency has the following
19
functions:
20
(a) to conduct test and evaluation for defence materiel programs;
21
(b) to assess risks associated with defence materiel programs,
22
based on the test and evaluation it conducts, and to prepare
23
reports in relation to those assessments;
24
(c) to provide recommendations and advice, on test and
25
evaluation, risk assessments and any other matters relating to
26
capability assurance, for the purposes of:
27
(i) informing each level of decision-makers for defence
28
materiel programs; and
29
(ii) providing input for strategic programs of the Australian
30
Government (such as the program known as the
31
Part 2
Defence Capability Assurance Agency
Division 2
Establishment and functions
Section 11
10
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
Integrated Investment Program or its equivalent)
1
relating to investment in defence capability;
2
(d) the Defence Capability Assurance Regulator function (see
3
subsection (2));
4
(e) for the purposes of enabling effective test and evaluation in
5
support of defence capability acquisition and sustainment by
6
or on behalf of the Commonwealth:
7
(i) to develop and maintain a workforce, comprised of
8
Defence Force members, APS employees and
9
contractors, with qualifications and experience in test
10
and evaluation in accordance with the workforce
11
standards mentioned in subsection (2);
12
(ii) to develop and maintain fit for purpose test and
13
evaluation infrastructure, in accordance with the
14
infrastructure standards mentioned in subsection (2);
15
(f) to report, and make recommendations, to the Committee and
16
the Defence Minister on outcomes in relation to the above
17
functions;
18
(g) to inform the Defence Department and Defence Force of
19
outcomes in relation to the above functions;
20
(h) any other functions conferred on the Defence Capability
21
Assurance Agency by this Act or any other Act;
22
(i) any other functions that are prescribed by rules made for the
23
purposes of this paragraph;
24
(j) to do anything incidental to, or conducive to, the
25
performance of the above functions.
26
Defence Capability Assurance Regulator function
27
(2) The
Defence Capability Assurance Regulator function
is to
28
develop, maintain and regulate appropriate standards for the
29
following:
30
(a) the workforce engaged in conducting test and evaluation and
31
associated activities in relation to defence materiel programs;
32
(b) the infrastructure used to conduct test and evaluation in
33
relation to defence materiel programs.
34
Note:
An industry partner is to facilitate the performance of this function:
35
see section 19.
36
Defence Capability Assurance Agency
Part 2
Establishment and functions
Division 2
Section 12
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
11
Performance of functions throughout capability life cycle
1
(3) The functions of the Defence Capability Assurance Agency, as
2
they relate to each defence materiel program, are to be performed
3
throughout the capability life cycle for the program, from the initial
4
setting of project requirements to the disposal of the relevant
5
materiel.
6
Manner of performing functions
7
(4) In determining the manner in which it performs its functions in
8
relation to a defence materiel program, including the scope and
9
priority of test and evaluation activities associated with the
10
program, the Defence Capability Assurance Agency must:
11
(a) consult with one or more persons responsible for the
12
management of the program within the Defence Department
13
and Defence Force; and
14
(b) have regard to the complexity and risk profile of the
15
program; and
16
(c) have regard to the operational imperatives affecting required
17
capability and the program schedule; and
18
(d) have regard to Australia's international human rights
19
obligations; and
20
(e) have regard to the public interest.
21
12 Powers
22
(1) The Defence Capability Assurance Agency has power to do all
23
things necessary or convenient to be done for or in connection with
24
the performance of its functions.
25
(2) The Defence Capability Assurance Agency's powers include, but
26
are not limited to, the power to enter into contracts and agreements.
27
13 Defence Capability Assurance Agency does not have privileges
28
and immunities of the Crown
29
The Defence Capability Assurance Agency does not have the
30
privileges and immunities of the Crown in right of the
31
Commonwealth.
32
Part 2
Defence Capability Assurance Agency
Division 2
Establishment and functions
Section 14
12
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
14 Access to information, premises and materiel
1
The Secretary of the Defence Department and Chief of the Defence
2
Force must each take all reasonable steps to ensure that the
3
Defence Department and Defence Force provide the Defence
4
Capability Assurance Agency with access to information, premises
5
and materiel, and any other access or assistance, as necessary for
6
the Agency to perform its functions.
7
15 General directions
8
(1) The Defence Minister may, by notifiable instrument, give
9
directions to the Defence Capability Assurance Agency about the
10
performance of its functions.
11
(2) A direction under subsection (1) must be of a general nature only.
12
(3) The Defence Capability Assurance Agency must comply with a
13
direction under subsection (1).
14
16 Providing reports and advice to project staff and decision-makers
15
(1) As soon as practicable after preparing a report for a risk assessment
16
conducted by the Defence Capability Assurance Agency in relation
17
to a defence materiel program:
18
(a) the Agency must give a copy of the report to:
19
(i) the persons within the Defence Department and Defence
20
Force who are responsible for defining capability
21
requirements in relation to the program; and
22
(ii) the persons within the Defence Department and Defence
23
Force who are responsible for the day-to-day
24
management of the program; and
25
(b) the Agency must ensure that a copy of the report is given to
26
decision-makers for the program within the Defence
27
Department and the Defence Force.
28
(2) In performing its function under paragraph 11(1)(c) in relation to a
29
particular defence materiel program, the Defence Capability
30
Assurance Agency (or its representative) is to:
31
Defence Capability Assurance Agency
Part 2
Establishment and functions
Division 2
Section 17
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
13
(a) attend meetings when decision-makers for the program are
1
considering matters relating to the program that have been
2
covered in a risk assessment report prepared by the Agency;
3
and
4
(b) provide any recommendations or advice relating to capability
5
assurance at each meeting of decision-makers for the
6
program at which matters relating to the program, that have
7
been covered in a risk assessment report prepared by the
8
Agency, are considered.
9
17 Reporting to the Defence Minister and National Security
10
Committee of the Cabinet
11
(1) The Defence Capability Assurance Agency must, within the period
12
of 14 days after the end of each month, prepare and give to the
13
Defence Minister a report that sets out a summary of the risk
14
assessments completed by the Agency during the month.
15
(2) The Defence Capability Assurance Agency must make copies of
16
full reports for each risk assessment available to the Defence
17
Minister on the Minister's request.
18
(3) The Secretary of the Defence Department must ensure that, if
19
submissions to the National Security Committee of the Cabinet
20
concern matters relating to a defence materiel program that have
21
been covered in a risk assessment report prepared by the Defence
22
Capability Assurance Agency, the submissions are accompanied by
23
a copy of the full report.
24
18 Reporting to the Committee
25
The Defence Capability Assurance Agency must, within 30 days
26
after the end of each quarter, prepare and give to the Committee a
27
report that sets out a summary of:
28
(a) the test and evaluation completed by the Agency during the
29
quarter; and
30
(b) any risks assessed during the quarter as unacceptable by the
31
Agency, or any instances during the quarter in which the
32
Agency has assessed that risk mitigation is highly desirable,
33
in relation to a defence materiel program; and
34
Part 2
Defence Capability Assurance Agency
Division 2
Establishment and functions
Section 19
14
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(c) any recommendations or advice it has provided to the
1
Defence Department and the Defence Force during the
2
quarter based on those risk assessments.
3
19 Industry partner
4
(1) The Defence Capability Assurance Agency must, on behalf of the
5
Commonwealth, enter into a written agreement with a person or
6
entity for the person or entity to do the following, in accordance
7
with the terms and conditions set out in the agreement:
8
(a) facilitate the performance of the Defence Capability
9
Assurance Regulator function, including by maintaining,
10
developing and regulating workforce and infrastructure
11
standards as mentioned in subsection 11(2);
12
(b) facilitate training to assist the Agency's implementation of
13
the workforce standards mentioned in subsection 11(2);
14
(c) provide specialist expertise across the defence domains to
15
assist the Agency in the planning, and where necessary, the
16
conduct or supervision of test and evaluation activities, as
17
required.
18
(1A) Before entering into an agreement with a person or entity under
19
subsection (1), the Defence Capability Assurance Agency must
20
take all reasonable steps to ensure that the person or entity does not
21
have any interests (pecuniary or otherwise) that could conflict with
22
the proper performance of the functions in paragraphs (1)(a) to (c).
23
(2) The Defence Capability Assurance Agency must not enter into an
24
agreement with a person or entity under subsection (1) unless the
25
Agency is satisfied that the person or entity is a sovereign
26
Australian defence industry company, as determined in accordance
27
with relevant policies of the Australian Government.
28
(3) The Defence Capability Assurance Agency must ensure that an
29
agreement under this section is in effect at all times on and after
30
the end of the period of one month beginning on the day the first
31
appointment of a Director of the Agency is made by the Board
.
32
(4) The Defence Capability Assurance Agency must, on behalf of the
33
Commonwealth, ensure that the person or entity who has entered
34
Defence Capability Assurance Agency
Part 2
Establishment and functions
Division 2
Section 19
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
15
into an agreement with the Agency under subsection (1), in
1
maintaining, developing and regulating workforce and
2
infrastructure standards as mentioned in subsection 11(2), does not
3
inhibit effective competition for the defence industry sector to
4
deliver services required by the Agency in the performance of its
5
functions.
6
Part 2
Defence Capability Assurance Agency
Division 3
Director of the Defence Capability Assurance Agency
Section 20
16
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
Division 3--Director of the Defence Capability Assurance
1
Agency
2
20 Director
3
There is to be a Director of the Defence Capability Assurance
4
Agency.
5
21 Functions of the Director
6
(1) The Director is responsible for the day-to-day administration of the
7
Defence Capability Assurance Agency.
8
(2) The Director has power to do all things necessary or convenient to
9
be done for or in connection with the performance of the Director's
10
duties.
11
(3) The Director is to act in accordance with policies and strategies
12
determined by the Board.
13
(4) All acts and things done in the name of, or on behalf of, the
14
Defence Capability Assurance Agency by the Director, or with the
15
authority of the Director, are taken to have been done by the
16
Defence Capability Assurance Agency.
17
(5) If a function or power of the Defence Capability Assurance
18
Agency is dependent on the opinion, belief or state of mind of the
19
Defence Capability Assurance Agency in relation to a matter, the
20
function or power may be exercised upon the opinion, belief or
21
state of mind of a person or body acting as mentioned in
22
subsection (4) in relation to that matter.
23
22 Director to act in accordance with directions of Board
24
(1) The Board may give written directions to the Director, not
25
inconsistent with any direction given to the Defence Capability
26
Assurance Agency under section 15, about the performance of the
27
Director's duties.
28
(2) The Director must comply with a direction under subsection (1).
29
Defence Capability Assurance Agency
Part 2
Director of the Defence Capability Assurance Agency
Division 3
Section 23
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
17
(3) Subsection (2) does not apply to the extent that the direction relates
1
to the Director's performance of functions or exercise of powers
2
under the
Public Service Act 1999
in relation to the Defence
3
Capability Assurance Agency.
4
(4) A direction under subsection (1) is not a legislative instrument.
5
23 Appointment
6
(1) The Director is to be appointed by the Board by written instrument,
7
after consultation with the Defence Minister, on a full-time basis.
8
Note:
The Director may be reappointed: see section 33AA of the
Acts
9
Interpretation Act 1901
.
10
Qualification for appointment
11
(2) A person must not be appointed as the Director unless the Board is
12
satisfied that the person has:
13
(a) appropriate qualifications and experience as both a
14
practitioner and senior leader in an organisation conducting
15
developmental test and evaluation, in relation to one or more
16
domains relevant to defence; and
17
(b) experience in the field of engineering, or the field of
18
operations, in relation to one or more domains relevant to
19
defence.
20
Period of appointment
21
(3) The Director holds office for the period specified in the instrument
22
of appointment. The period must not exceed 5 years.
23
(4) The Director must not be a Board member.
24
24 Acting appointment
25
The Board may, by written instrument and after consultation with
26
the Defence Minister, appoint a person (other than a Board
27
member) to act as the Director:
28
(a) during a vacancy in the office of Director (whether or not an
29
appointment has previously been made to the office); or
30
Part 2
Defence Capability Assurance Agency
Division 3
Director of the Defence Capability Assurance Agency
Section 25
18
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(b) during any period, or during all periods, when the Director:
1
(i) is absent from duty or from Australia; or
2
(ii) is, for any reason, unable to perform the duties of the
3
office.
4
Note:
For rules that apply to acting appointments, see sections 33AB and
5
33A of the
Acts Interpretation Act 1901
.
6
25 Terms and conditions
7
The Director holds office on the terms and conditions (if any) in
8
relation to matters not covered by this Act that are determined by
9
the Board.
10
26 Remuneration
11
(1) The Director is to be paid the remuneration that is determined by
12
the Remuneration Tribunal. If no determination of that
13
remuneration by the Tribunal is in operation, the Director is to be
14
paid the remuneration that is prescribed by the rules.
15
(2) The Director is to be paid the allowances that are prescribed by the
16
rules.
17
(3) This section has effect subject to the
Remuneration Tribunal Act
18
1973
.
19
27 Leave of absence
20
(1) The Director has the recreation leave entitlements that are
21
determined by the Remuneration Tribunal.
22
(2) The Chair of the Board may grant the Director leave of absence,
23
other than recreation leave, on the terms and conditions as to
24
remuneration or otherwise that the Chair determines.
25
(3) The Chair of the Board must notify the Defence Minister if the
26
Chair grants to the Director leave for a period that exceeds one
27
month.
28
Defence Capability Assurance Agency
Part 2
Director of the Defence Capability Assurance Agency
Division 3
Section 28
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
19
28 Other paid work
1
The Director must not engage in paid work outside the duties of the
2
Director's office without the Chair of the Board's approval.
3
29 Resignation
4
(1) The Director may resign the Director's appointment by giving the
5
Board a written resignation.
6
(2) The resignation takes effect on the day it is received by the Board
7
or, if a later day is specified in the resignation, on that later day.
8
(3) If the Director resigns under this section, the Chair of the Board
9
must notify the Defence Minister of the resignation.
10
30 Termination of appointment
11
(1) The Board may terminate the appointment of the Director:
12
(a) for misbehaviour; or
13
(b) if the Director is unable to perform the duties of the
14
Director's office because of physical or mental incapacity.
15
(2) The Board may terminate the appointment of the Director if:
16
(a) the Director:
17
(i) becomes bankrupt; or
18
(ii) applies to take the benefit of any law for the relief of
19
bankrupt or insolvent debtors; or
20
(iii) compounds with the Director's creditors; or
21
(iv) makes an assignment of the Director's remuneration for
22
the benefit of the Director's creditors; or
23
(b) the Director is absent, except on leave of absence, for 14
24
consecutive days or for 28 days in any 12 months; or
25
(c) the Director engages, except with the Chair of the Board's
26
approval, in paid work outside the duties of the Director's
27
office (see section 28).
28
Note:
The appointment of the Director may also be terminated under
29
section 30 of the
Public Governance, Performance and Accountability
30
Act 2013
(which deals with terminating the appointment of an
31
Part 2
Defence Capability Assurance Agency
Division 3
Director of the Defence Capability Assurance Agency
Section 30
20
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
accountable authority, or a member of an accountable authority, for
1
contravening general duties of officials).
2
(3) If the Board terminates the appointment of the Director, the Board
3
must notify the Defence Minister of the termination.
4
Defence Capability Assurance Agency
Part 2
Board of the Defence Capability Assurance Agency
Division 4
Section 31
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
21
Division 4--Board of the Defence Capability Assurance
1
Agency
2
Subdivision A--Establishment and functions of the Board
3
31 Establishment of the Board
4
The Board of the Defence Capability Assurance Agency is
5
established by this section.
6
32 Functions of the Board
7
(1) The functions of the Board are:
8
(a) to decide, within the scope of any directions given to the
9
Defence Capability Assurance Agency under section 15, the
10
objectives, strategies and policies to be followed by the
11
Agency; and
12
(b) to ensure the proper, efficient and effective performance of
13
the Agency's functions; and
14
(c) any other functions conferred on the Board by this Act.
15
(2) The Board has the power to do all things necessary or convenient
16
to be done for or in connection with the performance of its
17
functions.
18
Subdivision B--Board members
19
33 Membership
20
(1) The Board consists of the following members:
21
(a) the Director;
22
(b) up to 6 Board members (including the Chair of the Board and
23
the Deputy Chair of the Board).
24
Note:
As a member of the governing body, the Director is a member of the
25
accountable authority of a Commonwealth entity for the purposes of
26
the
Public Governance, Performance and Accountability Act 2013
:
27
see the definition of
accountable authority
in section 12 of that Act.
28
Part 2
Defence Capability Assurance Agency
Division 4
Board of the Defence Capability Assurance Agency
Section 34
22
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(2) The performance of a function or the exercise of a power of the
1
Board is not affected by a vacancy in the membership of the Board.
2
34 Appointment
3
(1) Board members are to be appointed by the Defence Minister by
4
written instrument, on a part-time basis.
5
Note:
Board members may be reappointed: see section 33AA of the
Acts
6
Interpretation Act 1901
.
7
(2) A Board member holds office for the period specified in the
8
instrument of appointment. The period must not exceed 3 years.
9
(3) The Defence Minister must appoint one Board member to be the
10
Chair of the Board and another Board member to be the Deputy
11
Chair of the Board.
12
(4) A person must not be appointed as a Board member unless the
13
Defence Minister is satisfied that the person has relevant
14
qualifications and experience in at least one of the following fields:
15
(a) engineering, in relation to one or more domains relevant to
16
defence;
17
(b) operations, in relation to one or more domains relevant to
18
defence;
19
(c) corporate governance.
20
(5) In appointing the Board members, the Defence Minister must:
21
(a) to the extent practicable, ensure that the Board members are
22
an appropriate mix of persons with qualifications and
23
experience referred to in subsection (4); and
24
(b) ensure that a majority of Board members have qualifications
25
and relevant experience in the conduct and management of
26
test and evaluation; and
27
(c) ensure that at least one Board member has been appointed on
28
the recommendation of the Secretary of the Defence
29
Department and the Chief of the Defence Force, and has
30
experience in defence operations and a strong understanding
31
of the needs of end-users of materiel.
32
Defence Capability Assurance Agency
Part 2
Board of the Defence Capability Assurance Agency
Division 4
Section 35
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
23
35 Acting appointments
1
Acting by operation of law
2
(1) The Deputy Chair of the Board is to act as the Chair of the Board:
3
(a) during a vacancy in the office of Chair of the Board (whether
4
or not an appointment has previously been made to the
5
office); or
6
(b) during any period, or during all periods, when the Chair of
7
the Board:
8
(i) is absent from duty; or
9
(ii) is, for any reason, unable to perform the duties of the
10
office.
11
Note:
For rules that apply to persons acting as the Chair of the Board, see
12
section 33A of the
Acts Interpretation Act 1901
.
13
Acting appointments
14
(2) The Defence Minister may, by written instrument, appoint a Board
15
member to act as the Deputy Chair of the Board:
16
(a) during a vacancy in the office of Deputy Chair of the Board
17
(whether or not an appointment has previously been made to
18
the office); or
19
(b) during any period, or during all periods, when the Deputy
20
Chair of the Board:
21
(i) is acting as the Chair of the Board; or
22
(ii) is absent from duty; or
23
(iii) is, for any reason, unable to perform the duties of the
24
office.
25
Note:
For rules that apply to acting appointments, see sections 33AB and
26
33A of the
Acts Interpretation Act 1901
.
27
(3) The Defence Minister may, by written instrument, appoint a person
28
to act as a Board member (other than the Chair or Deputy Chair of
29
the Board):
30
(a) during a vacancy in the office of a Board member (whether
31
or not an appointment has previously been made to the
32
office); or
33
Part 2
Defence Capability Assurance Agency
Division 4
Board of the Defence Capability Assurance Agency
Section 36
24
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(b) during any period, or during all periods, when a Board
1
member:
2
(i) is acting as the Deputy Chair of the Board; or
3
(ii) is absent from duty; or
4
(iii) is, for any reason, unable to perform the duties of the
5
office.
6
Note:
For rules that apply to acting appointments, see sections 33AB and
7
33A of the
Acts Interpretation Act 1901
.
8
Qualifications etc. of acting members
9
(4) Subsection 34(4) applies to an appointment under this section in
10
the same way as it applies to an appointment under section 34.
11
36 Terms and conditions
12
A Board member holds office on the terms and conditions (if any)
13
in relation to matters not covered by this Act that are determined
14
by the Defence Minister.
15
37 Remuneration
16
(1) A Board member is to be paid the remuneration that is determined
17
by the Remuneration Tribunal. If no determination of that
18
remuneration by the Tribunal is in operation, the Board member is
19
to be paid the remuneration that is prescribed by the rules.
20
(2) A Board member is to be paid the allowances that are prescribed
21
by the rules.
22
(3) This section has effect subject to the
Remuneration Tribunal Act
23
1973
.
24
38 Leave of absence
25
(1) The Defence Minister may grant leave of absence to the Chair of
26
the Board on the terms and conditions that the Defence Minister
27
determines.
28
Defence Capability Assurance Agency
Part 2
Board of the Defence Capability Assurance Agency
Division 4
Section 39
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
25
(2) The Chair of the Board may grant leave of absence to any other
1
Board member on the terms and conditions that the Chair
2
determines.
3
39 Other paid work
4
A Board member must not engage in any paid work that, in the
5
Defence Minister's opinion, conflicts or could conflict with the
6
proper performance of the member's duties.
7
40 Resignation
8
(1) A Board member may resign the Board member's appointment by
9
giving the Defence Minister a written resignation.
10
(2) The resignation takes effect on the day it is received by the
11
Defence Minister or, if a later day is specified in the resignation, on
12
that later day.
13
41 Termination of appointment
14
(1) The Defence Minister may terminate the appointment of a Board
15
member:
16
(a) for misbehaviour; or
17
(b) if the Board member is unable to perform the duties of the
18
member's office because of physical or mental incapacity.
19
(2) The Defence Minister may terminate the appointment of a Board
20
member if:
21
(a) the Board member:
22
(i) becomes bankrupt; or
23
(ii) applies to take the benefit of any law for the relief of
24
bankrupt or insolvent debtors; or
25
(iii) compounds with the Board member's creditors; or
26
(iv) makes an assignment of the Board member's
27
remuneration for the benefit of the Board member's
28
creditors; or
29
(b) the Board member is absent, except on leave of absence,
30
from 3 consecutive meetings of the Board; or
31
Part 2
Defence Capability Assurance Agency
Division 4
Board of the Defence Capability Assurance Agency
Section 42
26
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(c) the Board member engages in paid work that, in the Defence
1
Minister's opinion, conflicts or could conflict with the proper
2
performance of the Board member's duties (see section 39).
3
Note:
The appointment of a Board member may also be terminated under
4
section 30 of the
Public Governance, Performance and Accountability
5
Act 2013
(which deals with terminating the appointment of an
6
accountable authority, or a member of an accountable authority, for
7
contravening general duties of officials).
8
Subdivision C--Meetings of the Board
9
42 Convening meetings
10
(1) The Board must hold such meetings as are necessary for the
11
efficient performance of its functions.
12
(2) The Chair of the Board:
13
(a) may convene a meeting at any time; and
14
(b) must convene at least 4 meetings each calendar year; and
15
(c) must convene a meeting within 30 days after receiving a
16
written request to do so from another Board member.
17
43 Presiding at meetings
18
(1) The Chair of the Board
must preside at all meetings at which the
19
Chair is present.
20
(2) If the Chair
of the Board is not present at a meeting, the Deputy
21
Chair of the Board presides.
22
(3) If neither the Chair of the Board nor the Deputy Chair of the Board
23
is present at a meeting, the Board members present must appoint
24
one of themselves to preside.
25
44 Quorum
26
(1) At a meeting of the Board, a quorum is constituted by a majority of
27
Board members.
28
(2) However, if:
29
Defence Capability Assurance Agency
Part 2
Board of the Defence Capability Assurance Agency
Division 4
Section 45
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
27
(a) a Board member
is required by rules made for the purposes
1
of section 29 of the
Public Governance, Performance and
2
Accountability Act 2013
not to be present during the
3
deliberations, or to take part in any decision, of the Board
4
with respect to a particular matter; and
5
(b) when the Board member leaves the meeting concerned there
6
is no longer a quorum present;
7
the remaining Board members at the meeting constitute a quorum
8
for the purpose of any deliberation or decision at that meeting with
9
respect to that matter.
10
(3) For the purposes of this section,
Board member
includes the
11
Director.
12
45 Voting at meetings
13
(1) A question arising at a meeting of the Board is to be determined by
14
a majority of the votes of the Board members present and voting.
15
(2) The person presiding at a meeting of the Board has a deliberative
16
vote and, if the votes are equal, a casting vote.
17
(3) For the purposes of this section,
Board member
includes the
18
Director.
19
46 Conduct of meetings
20
The Board may, subject to this Division, regulate proceedings at its
21
meetings as it considers appropriate.
22
Note:
Section 33B of the
Acts Interpretation Act 1901
contains further
23
information about the ways in which Board members may participate
24
in meetings.
25
47 Minutes
26
The Board must keep minutes of its meetings.
27
48 Decisions without meetings
28
(1) The Board is taken to have made a decision at a meeting if:
29
Part 2
Defence Capability Assurance Agency
Division 4
Board of the Defence Capability Assurance Agency
Section 48
28
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(a) without meeting, a majority of the Board members entitled to
1
vote on the proposed decision indicate agreement with the
2
decision; and
3
(b) that agreement is indicated in accordance with the method
4
determined by the Board under subsection (2); and
5
(c) all the Board members were informed of the proposed
6
decision, or reasonable efforts were made to inform all the
7
Board members of the proposed decision.
8
(2) Subsection (1) applies only if the Board:
9
(a) has determined that it may make decisions of that kind
10
without meeting; and
11
(b) has determined the method by which Board members are to
12
indicate agreement with proposed decisions.
13
(3) For the purposes of paragraph (1)(a), a Board member is not
14
entitled to vote on a proposed decision if the Board member would
15
not have been entitled to vote on that proposal if the matter had
16
been considered at a meeting of the Board.
17
(4) The Board must keep a record of decisions made in accordance
18
with this section.
19
(5) For the purposes of this section,
Board member
includes the
20
Director.
21
Defence Capability Assurance Agency
Part 2
Staff, contractors and other persons assisting
Division 5
Section 49
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
29
Division 5--Staff, contractors and other persons assisting
1
49 Permanent staff
2
(1) The staff of the Defence Capability Assurance Agency must be
3
persons:
4
(a) who are engaged under the
Public Service Act 1999
; or
5
(b) who are members of the Defence Force posted to the Defence
6
Capability Assurance Agency.
7
(2) For the purposes of the
Public Service Act 1999
:
8
(a) the Director and the staff referred to in paragraph (1)(a)
9
together constitute a Statutory Agency; and
10
(b) the Director is the Head of that Statutory Agency.
11
50 Contractors
12
The Defence Capability Assurance Agency may engage persons
13
under a written agreement to assist the Agency to perform or
14
exercise the functions or powers of the Agency.
15
51 Other persons assisting the Defence Capability Assurance Agency
16
on a shorter-term basis
17
In addition to the persons mentioned in sections 49 and 50, the
18
Defence Capability Assurance Agency may be assisted by the
19
following in the performance or exercise of its functions or powers:
20
(a) persons engaged under the
Public Service Act 1999
and made
21
available by the Secretary of the Defence Department;
22
(b) other members of the Defence Force whose services are
23
made available for the purpose under an arrangement
24
between the Chief of the Defence Force and the Defence
25
Capability Assurance Agency;
26
(c) persons engaged as a contractor to perform services for the
27
Defence Department or Defence Force, and whose services
28
are made available for the purpose under an arrangement
29
between the Secretary of the Department, or the Chief of the
30
Part 2
Defence Capability Assurance Agency
Division 5
Staff, contractors and other persons assisting
Section 51
30
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
Defence Force, and the Defence Capability Assurance
1
Agency.
2
Defence Capability Assurance Agency
Part 2
Other matters
Division 6
Section 52
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
31
Division 6--Other matters
1
52 Requirement to be cleared for security purposes
2
If a person performing duties for the Defence Capability Assurance
3
Agency is to deal with security classified information in that
4
capacity, the person must be cleared for security purposes to a level
5
that is appropriate having regard to the person's duties.
6
53 Defence Capability Assurance Agency must comply with defence
7
regulatory framework
8
To the extent that the performance of the Defence Capability
9
Assurance Agency's functions involve the operation or use of
10
materiel, the Agency must ensure that it (and any person or entity
11
assisting or engaged by it) complies with any applicable regulatory
12
requirements of the Defence Force.
13
54 Delegation by Director
14
(1) The Director may, in writing, delegate all or any of the Director's
15
functions or powers under this Act to:
16
(a) a member of the staff referred to in section 49 who is an SES
17
employee, or acting SES employee; or
18
(b) a member of the staff referred to in section 49 who is a
19
member of the Defence Force holding a rank not lower than:
20
(i) in the case of the Royal Australian Navy--the rank of
21
Commodore; or
22
(ii) in the case of the Australian Army--the rank of
23
Brigadier; or
24
(iii) in the case of the Royal Australian Air Force--the rank
25
of Air Commodore.
26
Note 1:
SES employee
and
acting SES employee
are defined in section 2B of
27
the
Acts Interpretation Act 1901
.
28
Note 2:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
29
provisions relating to delegations.
30
Part 2
Defence Capability Assurance Agency
Division 6
Other matters
Section 54
32
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(2) In performing a delegated function or exercising a delegated
1
power, the delegate must comply with any written directions of the
2
Director.
3
Inspector-General of Defence Capability Assurance
Part 3
Introduction
Division 1
Section 55
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
33
Part 3--Inspector-General of Defence Capability
1
Assurance
2
Division 1--Introduction
3
55 Simplified outline of this Part
4
There is to be an Inspector-General of Defence Capability
5
Assurance.
6
The Inspector-General's functions include inquiring at the request
7
of the Defence Minister or on the Inspector-General's own
8
initiative into:
9
(a)
the Defence Department's and the Defence Force's
10
engagement with the Defence Capability Assurance
11
Agency, including responses to risks identified by the
12
Agency; and
13
(b)
the Defence Department's funding of the Defence
14
Capability Assurance Agency; and
15
(c)
particular defence materiel programs.
16
The Inspector-General can engage staff. The staff must have
17
appropriate security clearances.
18
Part 3
Inspector-General of Defence Capability Assurance
Division 2
Establishment and functions
Section 56
34
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
Division 2--Establishment and functions
1
56 Inspector-General
2
(1) There is to be an Inspector-General of Defence Capability
3
Assurance.
4
(2) For the purposes of the finance law (within the meaning of
5
the
Public Governance, Performance and Accountability Act
6
2013
):
7
(a) the following group of persons is a listed entity:
8
(i) the Inspector-General;
9
(ii) the staff assisting the Inspector-General referred to in
10
section 71;
11
(b) the listed entity is to be known as the Office of the
12
Inspector-General of Defence Capability Assurance; and
13
(c) the Inspector-General is the accountable authority of the
14
listed entity; and
15
(d) the persons referred to in paragraph (a) are officials of the
16
listed entity; and
17
(e) the purposes of the listed entity include the functions of the
18
Inspector-General referred to in section 57.
19
Limitation on appointment of Inspector-General
20
(3) A person must not be appointed as Inspector-General if the person
21
is, or the person's most recent position was, any of the following:
22
(a) the Secretary of the Defence Department;
23
(b) an SES Band 3 position, or an equivalent or higher position,
24
in the Defence Department;
25
(c) an SES Band 2 position, or equivalent, in the Defence
26
Department in a role that is primarily responsible for
27
capability acquisition and sustainment;
28
(d) the Chief of the Defence Force;
29
(e) the Vice Chief of the Defence Force;
30
(f) an officer of the Royal Australian Navy who holds the rank
31
of Vice-Admiral or a higher rank;
32
Inspector-General of Defence Capability Assurance
Part 3
Establishment and functions
Division 2
Section 57
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
35
(g) an officer of the Australian Army who holds the rank of
1
Lieutenant-General or a higher rank;
2
(h) an officer of the Royal Australian Air Force who holds the
3
rank of Air Marshal or a higher rank.
4
57 Functions of the Inspector-General
5
The Inspector-General has the following functions:
6
(a) at the request of the Defence Minister or on the
7
Inspector-General's own initiative, to inquire into any matter
8
that relates to whether the Defence Department and Defence
9
Force have done the following:
10
(i) engaged with the Defence Capability Assurance Agency
11
in a timely manner as part of each update of any
12
strategic programs mentioned in
13
subparagraph 11(1)(c)(ii), and at the commencement of
14
each defence materiel program or project forming part
15
of such a program;
16
(ii) incorporated the Defence Capability Assurance
17
Agency's risk assessments into those strategic programs
18
and project planning, management and outcomes;
19
(iii) transparently ensured the Defence Capability Assurance
20
Agency's risk assessments are reported to each level of
21
decision-makers across the capability life cycle relating
22
to a particular defence materiel program;
23
(iv) documented actions taken to mitigate risks identified by
24
the Defence Capability Assurance Agency, or
25
documented the justification for not accepting the
26
Agency's recommendations;
27
(v) given the Defence Capability Assurance Agency an
28
opportunity to provide advice on the probable
29
consequences of such actions or justifications in
30
response to the risks the Agency has identified;
31
(b) at the request of the Defence Minister or on the
32
Inspector-General's own initiative, to inquire into any matter
33
relating to whether the Defence Department and Defence
34
Force have provided the Defence Capability Assurance
35
Agency sufficient funding to perform its functions:
36
Part 3
Inspector-General of Defence Capability Assurance
Division 2
Establishment and functions
Section 57
36
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(i) whether via a given project or via an agreement to
1
maintain a minimum level of capability for the Defence
2
Capability Assurance Agency; and
3
(ii) taking into account the scope of work for test and
4
evaluation that has been determined in consultation with
5
the Defence Department and Defence Force;
6
(c) without limiting paragraph (a)--at the request of the Defence
7
Minister or on the Inspector-General's own initiative, to
8
conduct inquiries into particular defence materiel programs
9
(whether the relevant program began or ended before or after
10
the commencement of this section);
11
(d) any other functions conferred on the Inspector-General by
12
this Act or any other Act;
13
(e) any other functions that are prescribed by rules made for the
14
purposes of this paragraph;
15
(f) to report, and make recommendations, to the Defence
16
Minister and the Committee on outcomes in relation to any of
17
the above functions;
18
(g) to inform the Defence Department and Defence Force of
19
outcomes in relation to the above functions;
20
(h) to do anything incidental to, or conducive to, the
21
performance of the above functions.
22
Inspector-General of Defence Capability Assurance
Part 3
Inquiries
Division 3
Section 58
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
37
Division 3--Inquiries
1
58 Conduct of inquiries
2
(1) An inquiry by the Inspector-General must be conducted in private
3
and, subject to this Division, in such manner as the
4
Inspector-General thinks fit.
5
(2) The Inspector-General may, for the purposes of this Act, obtain
6
information from such persons, and make such inquiries, as the
7
Inspector-General thinks fit.
8
(3) Subject to subsections (4) and (5), it is not necessary for a person
9
to be afforded an opportunity to appear before the
10
Inspector-General or before any other person in connection with an
11
inquiry by the Inspector-General under this Act.
12
(4) The Inspector-General must not make a report in relation to an
13
inquiry conducted under this Act in which the Inspector-General
14
sets out opinions that are, either expressly or impliedly, critical of a
15
monitored agency unless the Inspector-General has, before
16
completing the inquiry, given the head of the agency a reasonable
17
opportunity to appear before the Inspector-General and to make,
18
either orally or in writing, submissions in relation to the matters
19
that are the subject of the inquiry.
20
(5) If the Inspector-General proposes to set out in a report in relation to
21
an inquiry conducted under this Act opinions that are, either
22
expressly or impliedly, critical of a person, the Inspector-General
23
must, unless doing so would, in the opinion of the
24
Inspector-General, prejudice security, the defence of Australia or
25
Australia's relations with other countries, give the person a
26
reasonable opportunity to appear before the Inspector-General and
27
to make, either orally or in writing, submissions in relation to the
28
matters that are the subject of the inquiry.
29
(6) If the Inspector-General gives, under subsection (4) or (5), the head
30
of a monitored agency or another person an opportunity to appear
31
before the Inspector-General, the person may, with the approval of
32
the Inspector-General, be represented by another person.
33
Part 3
Inspector-General of Defence Capability Assurance
Division 3
Inquiries
Section 59
38
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(7) The Inspector-General may, at any time before completing an
1
inquiry under this Act into a matter relating to a monitored agency,
2
if it is appropriate to do so, consult with the Defence Minister on
3
any matter that is relevant to the inquiry.
4
(8) If the Inspector-General forms the opinion that there is evidence
5
that a person who is a member of a monitored agency has been
6
guilty of a breach of duty or of misconduct and that the evidence is
7
of sufficient weight to justify the Inspector-General doing so, the
8
Inspector-General must bring the evidence to the notice of:
9
(a) in a case where the person is a head of a defence agency--the
10
Defence Minister; or
11
(b) in any other case--the head of that agency.
12
59 Power to obtain information and documents
13
(1) If the Inspector-General has reason to believe that a person is
14
capable of giving information or producing documents relevant to
15
a matter that is being inquired into by the Inspector-General under
16
this Act, the Inspector-General may, by notice in writing given to
17
the person, require the person, at such reasonable place and within
18
such reasonable period as are specified in the notice:
19
(a) to give to the Inspector-General, by writing signed by that
20
person or, in the case of a body corporate, on behalf of the
21
body corporate, any such information; or
22
(b) to produce to the Inspector-General any such documents.
23
(2) If documents are produced to the Inspector-General in accordance
24
with a requirement under subsection (1), the Inspector-General:
25
(a) may take possession of, and may make copies of or take
26
extracts from, the documents; and
27
(b) may retain possession of the documents for such period as is
28
necessary for the purposes of the inquiry to which the
29
documents relate; and
30
(c) during that period must permit a person who would be
31
entitled to inspect any one or more of the documents if they
32
were not in the possession of the Inspector-General to inspect
33
at all reasonable times such of the documents as the person
34
would be so entitled to inspect.
35
Inspector-General of Defence Capability Assurance
Part 3
Inquiries
Division 3
Section 59
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
39
(3) If the Inspector-General has reason to believe that a person is able
1
to give information relevant to a matter that is being inquired into
2
by the Inspector-General under this Act, the Inspector-General
3
may, by notice in writing given to the person, require the person to
4
attend before the Inspector-General, at such reasonable time and
5
place as are specified in the notice, to answer questions relevant to
6
the matter under inquiry.
7
(4) The Inspector-General may administer an oath or affirmation to a
8
person required to attend before the Inspector-General under
9
subsection (3) and may examine the person on oath or affirmation.
10
(5) The oath or affirmation to be taken or made by a person for the
11
purposes of this section is an oath or affirmation that the evidence
12
the person will give will be true.
13
(6) A person commits an offence if the person:
14
(a) fails to be sworn or to make an affirmation or to give
15
information or produce a document when required to do so
16
under this section; or
17
(b) after being given a notice under subsection (3), fails to
18
comply with the notice or to answer a question that the
19
Inspector-General requires the person to answer.
20
Penalty:
21
(a) for an individual--10 penalty units or imprisonment for 6
22
months, or both; or
23
(d) for a body corporate--50 penalty units.
24
(7) Subsection (6) does not apply if the person has a reasonable
25
excuse.
26
Note:
A defendant bears an evidential burden in relation to the matter in
27
subsection (7) (see subsection 13.3(3) of the
Criminal Code
).
28
(8) A person is not liable to any penalty under the provisions of any
29
law of the Commonwealth or of a Territory by reason only of the
30
person having given information, produced a document or
31
answered a question when required to do so under this section.
32
Part 3
Inspector-General of Defence Capability Assurance
Division 3
Inquiries
Section 60
40
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
60 Entry to premises occupied by a monitored agency
1
The Inspector-General may, after notifying the head of a monitored
2
agency, at any reasonable time, enter any place occupied by the
3
agency for the purposes of an inquiry under this Act.
4
61
Security of monitored agency documents
5
If:
6
(a) the Inspector-General requires access to documents in the
7
possession of a monitored agency for the purposes of an
8
inquiry by the Inspector-General under this Act; and
9
(b) those documents have a national security or other protective
10
security classification, or the head of the monitored agency is
11
satisfied that they are commercial-in-confidence;
12
the Inspector-General must, if the Inspector-General intends to
13
remove those documents from the possession of the agency, make
14
arrangements with the head of the agency for the protection of
15
those documents while they remain in the Inspector-General's
16
possession and for the return of those documents.
17
62 Reporting of inquiry findings by the Inspector-General
18
(1) For each inquiry conducted by the Inspector-General under this
19
Act, the Inspector-General must give a copy of the report made in
20
relation to the inquiry to each monitored agency as soon as
21
practicable after completing the inquiry.
22
(2) If the Inspector-General makes a report in relation to an inquiry
23
under this Act that sets out opinions that are:
24
(a) either expressly or impliedly, critical of a monitored agency;
25
or
26
(b) otherwise indicate that the Defence Department or Defence
27
Force (or both) have not adequately engaged with the
28
Defence Capability Assurance Agency in the performance of
29
its functions, or responded to risks identified by the Agency
30
in a sufficiently transparent way;
31
the Inspector-General must give a copy of the report to the Defence
32
Minister as soon as practicable.
33
Inspector-General of Defence Capability Assurance
Part 3
Inquiries
Division 3
Section 62
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
41
(3) The Inspector-General must give the Defence Minister periodic
1
summaries of inquiry reports not covered by subsection (2), in a
2
manner the Inspector-General considers appropriate for the
3
purposes of informing the Minister of its inquiry activities.
4
(4) The Inspector-General must, within the period of one month after
5
the end of each calendar year, give the Committee a report on the
6
outcomes of inquiries completed by the Inspector-General under
7
this Act during the year.
8
Part 3
Inspector-General of Defence Capability Assurance
Division 4
Administrative provisions relating to the Inspector-General
Section 63
42
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
Division 4--Administrative provisions relating to the
1
Inspector-General
2
63 Appointment of the Inspector-General
3
(1) The Inspector-General of Defence Capability Assurance is to be
4
appointed by the Governor-General by written instrument, on a
5
full-time or part-time basis.
6
(2) A person is not eligible to be appointed to the office of
7
Inspector-General more than twice.
8
(3) Before the Prime Minister makes a recommendation to the
9
Governor-General for the appointment of a person as
10
Inspector-General, the Prime Minister must consult with the
11
Leader of the Opposition in the House of Representatives.
12
(4) The Inspector-General holds office for the period specified in the
13
instrument of appointment. The period must not exceed 5 years.
14
64 Acting appointments
15
(1) The Defence Minister may, by written instrument, appoint a person
16
to act as the Inspector-General:
17
(a) during a vacancy in the office of Inspector-General (whether
18
or not an appointment has previously been made to the
19
office); or
20
(b) during any period, or during all periods, when the
21
Inspector-General:
22
(i) is absent from duty or from Australia; or
23
(ii) is, for any reason, unable to perform the duties of the
24
office.
25
Note:
For rules that apply to acting appointments, see sections 33AB
26
and 33A of the
Acts Interpretation Act 1901
.
27
(2) Before the Defence Minister appoints a person to act as the
28
Inspector-General, the Prime Minister must consult with the
29
Leader of the Opposition in the House of Representatives about the
30
appointment.
31
Inspector-General of Defence Capability Assurance
Part 3
Administrative provisions relating to the Inspector-General
Division 4
Section 65
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
43
65 Remuneration
1
(1) The Inspector-General is to be paid the remuneration that is
2
determined by the Remuneration Tribunal. If no determination of
3
that remuneration by the Tribunal is in operation, the
4
Inspector-General is to be paid the remuneration that is prescribed
5
by the rules.
6
(2) The Inspector-General is to be paid the allowances that are
7
prescribed by the rules.
8
(3) This section has effect subject to the
Remuneration Tribunal Act
9
1973
.
10
66 Leave of absence
11
(1) If the Inspector-General is appointed on a full-time basis, the
12
Inspector-General has the recreation leave entitlements that are
13
determined by the Remuneration Tribunal.
14
(2) If the Inspector-General is appointed on a full-time basis, the
15
Defence Minister
may grant the Inspector-General leave of
16
absence, other than recreation leave, on the terms and conditions as
17
to remuneration or otherwise that the Defence Minister determines.
18
(3) If the Inspector-General is appointed on a part-time basis, the
19
Defence Minister may grant leave of absence to the
20
Inspector-General on the terms and conditions that the Defence
21
Minister determines.
22
67 Other paid work
23
(1) If the Inspector-General is appointed on a full-time basis, the
24
Inspector-General must not engage in paid work outside the duties
25
of the Inspector-General's office without the Defence Minister's
26
approval.
27
(2) If the Inspector-General is appointed on a part-time basis, the
28
Inspector-General must not engage in any paid work that, in the
29
Defence Minister's opinion, conflicts or could conflict with the
30
proper performance of the Inspector-General's duties.
31
Part 3
Inspector-General of Defence Capability Assurance
Division 4
Administrative provisions relating to the Inspector-General
Section 68
44
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
68 Other terms and conditions
1
The Inspector-General holds office on the terms and conditions (if
2
any) in relation to matters not covered by this Act that are
3
determined by the Defence Minister.
4
69 Resignation
5
(1) The Inspector-General may resign the Inspector-General's
6
appointment by giving the Governor-General a written resignation.
7
(2) The resignation takes effect on the day it is received by the
8
Governor-General or, if a later day is specified in the resignation,
9
on that later day.
10
70 Termination of appointment
11
(1) The Governor-General may terminate the appointment of the
12
Inspector-General:
13
(a) for misbehaviour; or
14
(b) if the Inspector-General is unable to perform the duties of the
15
Inspector-General's office because of physical or mental
16
incapacity.
17
(2) The Governor-General may terminate the appointment of the
18
Inspector-General if:
19
(a) the Inspector-General:
20
(i) becomes bankrupt; or
21
(ii) applies to take the benefit of any law for the relief of
22
bankrupt or insolvent debtors; or
23
(iii) compounds with the Inspector-General's creditors; or
24
(iv) makes an assignment of the Inspector-General's
25
remuneration for the benefit of the Inspector-General's
26
creditors; or
27
(b) if the Inspector-General is appointed on a full-time basis--
28
the Inspector-General is absent from duty, except on leave of
29
absence, for 14 consecutive days or for 28 days in any period
30
of 12 months; or
31
Inspector-General of Defence Capability Assurance
Part 3
Administrative provisions relating to the Inspector-General
Division 4
Section 70
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
45
(c) if the Inspector-General is appointed on a part-time basis--
1
the Inspector-General is absent from duty, except on leave of
2
absence, for 7 consecutive days or for 14 days in any period
3
of 12 months; or
4
(d) if the Inspector-General is appointed on a full-time basis--
5
the Inspector-General engages, except with the Defence
6
Minister's approval, in paid work outside the duties of the
7
Inspector-General's office (see subsection 67(1)); or
8
(e) if the Inspector-General is appointed on a part-time basis--
9
the Inspector-General engages in paid work that, in the
10
Defence Minister's opinion
,
conflicts or could conflict with
11
the proper performance of the Inspector-General's duties (see
12
subsection 67(2)).
13
Note:
The appointment of an Inspector-General may also be terminated
14
under section 30 of the
Public Governance, Performance and
15
Accountability Act 2013
(which deals with terminating the
16
appointment of an accountable authority, or a member of an
17
accountable authority, for contravening general duties of officials).
18
Part 3
Inspector-General of Defence Capability Assurance
Division 5
Staff
Section 71
46
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
Division 5--Staff
1
71 Staff
2
(1) The staff necessary to assist the Inspector-General are to be
3
persons who are engaged under the
Public Service Act 1999
.
4
(2) For the purposes of the
Public Service Act 1999
:
5
(a) the Inspector-General and the APS employees assisting the
6
Inspector-General together constitute a Statutory Agency;
7
and
8
(b) the Inspector-General is the Head of that Statutory Agency.
9
72 Staff must be cleared for security purposes
10
Each member of the staff assisting the Inspector-General under
11
section 71 must be cleared for security purposes to a level that is
12
appropriate having regard to the information that the member of
13
staff will deal with in that capacity.
14
Miscellaneous
Part 5
Section 104
No. , 2024
Defence Capability Assurance and Oversight Bill 2024
47
Part 5--Miscellaneous
1
2
104 Simplified outline of this Part
3
This Part deals with miscellaneous matters such as protection from
4
liability for certain protected persons and the making of rules.
5
105 Protection from liability
6
(1) This section applies to the following persons (
protected persons
):
7
(a) the Defence Capability Assurance Agency;
8
(b) the Director;
9
(c) a person acting under the Director's authority;
10
(d) the Inspector-General;
11
(e) a person acting under the Inspector-General's authority.
12
(2) A protected person is not liable to civil proceedings for loss,
13
damage or injury of any kind suffered by another person as a result
14
of the performance or exercise, in good faith, of the protected
15
person's functions, powers or duties under or in relation to this
16
Act.
17
106 Rules
18
(1) The Defence Minister
may, by legislative instrument, make rules
19
prescribing matters:
20
(a) required or permitted by this Act to be prescribed by the
21
rules; or
22
(b) necessary or convenient to be prescribed for carrying out or
23
giving effect to this Act.
24
(2) To avoid doubt, the rules may not do the following:
25
(a) create an offence or civil penalty;
26
(b) provide powers of:
27
(i) arrest or detention; or
28
Part 5
Miscellaneous
Section 106
48
Defence Capability Assurance and Oversight Bill 2024
No. , 2024
(ii) entry, search or seizure;
1
(c) impose a tax;
2
(d) set an amount to be appropriated from the Consolidated
3
Revenue Fund under an appropriation in this Act;
4
(e) directly amend the text of this Act.
5