CHAPTER 3

UNDUE DEPENDENCE UPON INSUFFICIENTLY DEFINED ADMINISTRATIVE POWERS

Application of criterion set out in Standing Order 24 (1)(a)(ii)

Legislation may contain provisions which make rights and liberties unduly dependent on insufficiently defined administrative powers in a number of ways. For example:

(a) It might give administrators ill-defined and wide powers.

(b) It might delegate power to a person without any qualification on who that person is to be.

(c) It may fail to provide for people to be notified of their rights of appeal against administrative decisions.

Explanations of the above are detailed in order below.

(a) Ill-defined and Wide Powers

Since its establishment in the early 1980s, the Committee has drawn the Senate's attention to legislation which gives administrators seemingly ill-defined and wide powers. An example is a bill which authorised a person to take 'necessary ... measures'. [1] Another is one which provided for the exercise of very wide discretions. [2] The Committee is happy to report that during the 37th Parliament, no legislation came before the Committee that caused it to make comments on this issue.

(b) Delegation of Power to 'A Person'

Since its establishment, the Committee has consistently drawn attention to legislation which allows significant and wide-ranging powers to be delegated to anyone who fits the all-embracing description of 'a person'. Generally, the Committee likes to see a limit set on either the sorts of powers that can be delegated or the categories of people to whom they are given. It considers that those to whom powers are delegated should be confined to the holders of nominated offices or to members of the Senior Executive Service or to persons holding specified qualifications.

An example of the Committee's approach to this issue is in its treatment of the Primary Industries Legislation Amendment Bill 1994, which is set out in its Thirteenth Report of 1994. [3] That bill proposed to amend the Australian Meat and Live-stock (Quotas) Act 1990 to enable the Australian Meat and Livestock Corporation to delegate all or any of its powers under the Act to 'a person'.

The Committee commented that there was no limitation as to the persons or classes of persons to whom the Corporation could delegate these various powers and functions. The Committee noted that, although the explanatory memorandum mentioned that the staff of the Corporation would be empowered to exercise delegated authority, neither the bill nor the explanatory memorandum sought to justify the width of the provision in the legislation.

The Committee agreed with the explanatory memorandum that the bill sought to bring the power to delegate under the Quotas Act into line with the situation pertaining under the Australian Meat and Live-stock Corporation Act 1977. However, the Committee asked that the proposed clause be modified so that power could be delegated only to specified staff of the Corporation. It invited the Minister to consider amending the earlier legislation, which had been enacted prior to the Committee's existence, so that power could be delegated only to a limited class of persons.

The Minister in response said that the proposed amendments to the Australian Meat and Live-stock (Quotas) Act 1990 had been withdrawn. He told the Committee that any future amendment providing for a delegation of power would limit the range of people to whom that power could be given. The Minister said that the Committee's view that there ought to be a limit on the power to delegate provided for in Australian Meat and Live-stock Corporation Act 1977 would be taken into account when future legislation dealing with the industry was under consideration. This was likely to happen following consultation with relevant interests in respect of the Report on the Industry Commission Inquiry into Meat Processing.

(c) Notification of Appeal Rights

Where legislation provides for an appeal from a ruling by a decision maker, the Committee likes to see it direct that the person affected be told of his or her right to pursue one.

The Committee has dealt with this issue in the past. [4] It is happy to say that the question did not arise during the course of the 37th Parliament.

Footnotes

[1] See, for example, Senate Standing Committee for the Scrutiny of Bills, First Report of 1982, (Parliamentary Paper No. 1/1982), (Criminal Investigation Bill 1981), p. 10.

[2] See, for example, Senate Standing Committee for the Scrutiny of Bills, Seventh to Twelfth Reports of 1984 (Parliamentary Paper No. 302/1984), (Air Navigation (Charges) Amendment Bill 1984), p.37.

[3] Senate Standing Committee for the Scrutiny of Bills, First to Eighteenth Reports of 1994 (Parliamentary Paper No. 472/1994), pp. 241-243.

[4] See, for example, Senate Standing Committee for the Scrutiny of Bills, One to Eight Reports of 1985, (Parliamentary Paper No. 511/1985), (Horticultural-Plant Variety Rights Bill 1984 [1985]), p. 3.