Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
DEFENCE CAPABILITY ASSURANCE AND OVERSIGHT BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved by Senator Fawcett
(Circulated by authority of Senator Fawcett)
Defence Capability Assurance and Oversight Bill 2023
OUTLINE
This Bill creates an independent statutory body responsible for assessing the complex risks
associated with materiel procurement and sustainment, including but not limited to
technical risks pertaining to performance and certification.
The objective of the Bill is to:
a. expedite the procurement of defence capability by providing capability
managers and the Australian Government a high degree of confidence in the
veracity and completeness of the information they use to make timely, risk
informed decisions,
b. provide assurance to capability managers, the Australian Government and the
Parliament that weapons systems will be available for use when required and
effective against extant and emerging threats, and
c. make existing defence procurement processes and requirements more effective
and efficient by ensuring:
i. that risk assessment throughout the capability life cycle is consistently
conducted by people who have appropriate qualifications and relevant
experience,
ii. the assessment and reporting of risk is independent, free from overt or
unintended bias or influence,
iii. identified risk is transparent to decision makers, and
iv. proposed risk mitigations are effective.
Amendments from Senator Fawcett
Senator Fawcett's amendments (sheet 2289) include amendments to the Bill to:
• remove Part 4 which establishes a Parliamentary Joint Committee on Defence;
• specify an obligation on the Defence Capability Assurance Agency to ensure that
the long-term industry partner is not able to use its regulatory role in the Agency to
create a monopoly or diminish competition from the broader industry sector.
These amendments respond to recent Government announcements and concerns raised
during the inquiry into the Bill.
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AMENDMENTS OF THE DEFENCE CAPABILITY ASSURANCE AND
OVERSIGHT BILL 2023 (sheet 2289)
NOTES ON AMENDMENTS
Amendment (1)--Title, page 1, (lines 2 to 4)
1. This amendment removes the reference to the Parliamentary Joint Committee on
Defence from the long title. This is consequential on the removal of Part 4 by amendment
(7).
Amendment (2)--Clause 4, page 3, (lines 27 to 31),
2. This amendment removes the reference to the Parliamentary Joint Committee on
Defence from the simplified outline of the Act in clause 4. This is consequential on the
removal of Part 4 by amendment (7).
Amendment (3)--Clause 5, page 4 (line 10)
3. This amendment removes the reference to the Parliamentary Joint Committee on
Defence from the definition of 'Committee' in clause 5. The effect of this amendment is
that 'Committee' would be defined as 'a Parliamentary Joint Statutory Committee with
oversight over defence'. This is consequential on the removal of Part 4 by amendment (7).
Amendment (4)--Clause 5, page 4 (lines 11 and 12)
4. This amendment removes the definition of 'Committee member' which is no longer
required. This is consequential on the removal of Part 4 by amendment (7).
Amendment (5)--Clause 9, page 8 (lines 15 and 16)
5. This amendment removes the reference to the Parliamentary Joint Committee on
Defence from the simplified outline of Part 2 in clause 9. This is consequential on the
removal of Part 4 by amendment (7).
Amendment (6)--Clause 19, page 15 (after line 27)
6. This amendment adds a new subclause (4) at the end of clause 19.
7. During the inquiry into the Defence Capability Assurance and Oversight Bill 2023,
concern was raised by industry stakeholders that the Industry Partner could exercise its role
in a manner that effectively created a monopoly. Interaction with witnesses highlighted that
while the Explanatory Memorandum clarified that the Defence Capability Assurance
Agency was Commonwealth Agency which would be responsible for the award of contracts,
further clarification would be welcome.
8. Subclause 19(4) would place a specific obligation on the Defence Capability Assurance
Agency to ensure that the Industry Partner, in maintaining, developing and regulating
workforce and infrastructure standards as mentioned in subsection 11(2), does not inhibit
effective competition for the broader industry sector to deliver services required to achieve
the Agency's Functions.
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9. In practice, as discussed during the inquiry, it is intended that this will require the Defence
Capability Assurance Agency (and where appropriate the Board):
- to ensure test and evaluation (T&E) qualification and practice standards are
benchmarked with relevant professional associations and peer organisations (such
as the International Test and Evaluation Association (ITEA) and Director-
Operational Test and Evaluation (DOT&E) to ensure that they reflect international
best practice and do not advantage any particular industry stakeholder;
- to ensure that, as a Commonwealth Agency, it remains responsible for the selection
and award of contracts for T&E services;
- to engage with industry stakeholders during the establishment of the Defence
Capability Assurance Agency, and at least annually thereafter, to ensure that there
is an effective mechanism to provide open and fair competition; and
- to give effect to paragraphs 35 and 36 of the Explanatory Memorandum, with
particular note to the sections underlined below:
o Paragraph 35: The industry partner will also provide specialist expertise to
the DCAA across all relevant domains. It is envisaged that this would be
achieved by creating a Centre of Excellence for the T&E conducted by the
DCAA to ensure best practice risk assessments by utilising best practice
T&E methods and enabling facilities. This is analogous to the role played
by DASA in having a workforce with deep professional mastery in areas
such as aerostructures which can support weapon systems programs offices
across the groups and services,
o Note: the DASA personnel providing professional mastery do not replace
the workforce in weapons systems program offices delivering engineering
services. Likewise, the DCAA Centre of Excellence will not compete with
ADF, APS or industry T&E practitioners but support them with deep
expertise in extant and emerging T&E design and practice to ensure best
practice outcomes for Defence.
o Paragraph 36: The staff comprising the T&E Centre of Excellence are to be
available to front load capability projects with a depth of T&E experience
where there is no other DCAA staff, assigned Defence member or industry
personnel available with the requisite qualifications and experience. The
aim would then be to expedite the appointment of a T&E practitioner who
with appropriate levels of mentoring and supervision from the T&E Centre
of Excellence, is deemed suitable by the DCAR to undertake the remainder
of the task.
o Note: Following consultation with defence and industry stakeholders, the
DCAA as a Commonwealth Agency will be responsible to determine if a
capacity or competence gap for a particular project exists. If a priority risk
assessment will be delayed as a consequence, the DCAA may make the
decision to task the T&E Centre of Excellence to provide a short-term
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capability. Such a decision would be an exception rather than normal
practice and must be coupled to a plan to transfer suitable qualifications
and experience to an ADF, APS or industry contractor.
Amendment (7)--Part 4, clauses 73 to 103, page 46 (line 1) to page 65 (line 5),
10. This amendment removes Part 4, which established the Parliamentary Joint Committee
on Defence.
11. Subsequent to the introduction of the Defence Capability Assurance and Oversight Bill
2023, the Government tabled its response to the JSCFADT Inquiry into international
armed conflict decision making on 08 Aug 2023. The Government response supported the
establishment of a Joint Statutory Committee on Defence as recommended by the
JSCFADT. The establishment of this committee makes Part 4 of the Bill (the establishment
of a Parliamentary Joint Committee on Defence) redundant as the roles and powers would
be substantially the same.
12. When available, the Government's bill for the establishment of the Joint Statutory
Committee on Defence will be scrutinised and if required, amendments will be moved by
Senator Fawcett to ensure the Committee's functions include oversight of the Defence
Capability Assurance Agency and the Inspector General of Defence Capability Assurance.
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Supplementary Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Senator Fawcett's Amendments to the Defence Capability Assurance and Oversight
Bill 2023
Amendment (7) removes Part 4 relating to the establishment of the Parliamentary Joint
Committee on Defence. The majority of the concerns raised by the Senate Standing
Committee for the Scrutiny of Bills (14 Jun 23) went to the provisions in this Part relating
to offences for publishing certain evidence of documents. On the same day the
Parliamentary Joint Committee on Human Rights noted (without specifying specific
clauses) that the Bill "appears to engage and may limit human rights" While these offence
provisions mirror the existing provisions in the Intelligence Services Act 2001 relating to
the Parliamentary Joint Committee on Intelligence and Security, this amendment removes
the entire Part and all subordinate provisions dealing with offences and punishment.
These amendments are 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.
Senator The Hon David Fawcett
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