CHAPTER 3

UNDUE DEPENDENCE UPON INSUFFICIENTLY DEFINED ADMINISTRATIVE POWERS

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

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

• give administrators ill-defined and wide powers;
• delegate power to a person without setting criteria which that person must meet; or
• fail to provide for people to be notified of their rights of appeal against administrative decisions.

3.2 Each of these situations is dealt with in more detail below.

Ill-defined and wide powers

3.3 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. Examples from previous Parliaments include a bill which authorised a person to take “necessary … measures”, [1] and a bill which gave the Minister, the Secretary or an authorised Departmental officer an unfettered discretion to remit or refund all or part of a charge or penalty payable under the Act. [2]

3.4 In its examination of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997, the Committee considered a provision which authorised the Minister to certify that some administrative decisions were not reviewable by the Migration Review Tribunal on `national interest' grounds. Other similar provisions enabled the Minister, acting personally, to refuse to grant or to cancel a visa, or to overturn a decision granting a visa, where he or she reasonably suspected that a person did not pass the `character test' and such action was in the `national interest'. In each case, the Committee queried whether the adoption of a `national interest' test made rights and liberties unduly dependent on insufficiently defined legislative powers.

3.5 The Minister responded that, in his view, “Australia's national interest is a better test than the existing public interest test for direct Ministerial intervention in the review process because Australia's national interest encompasses a broader range of conduct and consideration than does the public interest”. [3]

3.6 The Committee sought clarification of the differences in meaning between these terms, and, in particular, whether the definition of public interest might be expanded to include considerations of the national interest.

3.7 On this issue, the Minister subsequently advised that judicial comments indicated that “it is not possible to give an exhaustive definition about what can be said to be in the national interest”, but that the use of this term “generally allows regard to be had to more specific governmental concerns related to public safety, national security, defence and Australia's reputation abroad”. There was little point in expanding the definition of `public interest' as the Character and Conduct Bill proposed to replace it with a test based on the `national interest'. [4]

Delegation of power to `a person'

3.8 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 prefers to see a limit set either on the sorts of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The Committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service.

Example: Primary Industries and Energy Legislation Amendment Bill (No 2) 1996

3.9 In Alert Digest No 5 of 1996, the Committee noted that Schedule 6 to this Bill, if enacted, would amend various provisions of the Imported Food Control Act 1992. These amendments would enable the appointment of officers of the Australian Quarantine and Inspection Service (AQIS) and any other person as authorised officers for the purpose of exercising certain powers under the Act. These powers could include powers of search and seizure and the power to require answers to questions (with a penalty of up to 6 months imprisonment for failing to comply without a reasonable excuse).

3.10 The Minister's Second Reading Speech referred to the possibility that quarantine officers of the States and Territories, appointed as authorised officers, might be involved in food inspection. This would achieve the laudable purpose of avoiding what would otherwise be a duplication of tasks. Such a purpose posed no difficulties for the Committee, but neither the Bill nor the Explanatory Memorandum demonstrated the need for a power of appointment of such apparent width.

3.11 The Committee drew this provision to the attention of Minister, who responded that AQIS had sought a broad ranging provision in an effort to achieve “greater service flexibility” but had not intended its breadth to be excessive:

While the Committee quite correctly identified that AQIS sought the amendment in order that quarantine officers of the various States and Territories could be appointed as authorised officers under the Act, and thus be involved in the inspection of imported food, there will be occasions when persons other than those mentioned need to be appointed as authorised officers. An example of such an occasion would be when samples need to be taken from a consignment of imported food in a remote location and there are no AQIS officers nearby, but the services of an Environmental Health Officer (employed by a local council) could be utilised. In such circumstances the proposed provision would provide considerable program flexibility and benefits to industry. To more narrowly define the intended class of appointees would restrict the intention of the amendment …

In acknowledgment of the Committee's concerns on this issue AQIS has advised that it has now instructed the Office of Parliamentary Counsel to amend the provision in the Bill to limit those enforcement powers of concern to the Committee to AQIS authorised officers only. [5]

3.12 The Committee noted with approval the proposed amendment to limit the class of potential delegates, and thanked the Minister for his helpful explanation.

Example: Comprehensive Nuclear Test-Ban Treaty Bill 1998

3.13 In Alert Digest No 6 of 1998, the Committee noted that clause 69 of this Bill permitted the Minister to delegate all or any or his or her powers under the Act. No limitations were imposed as to the qualifications or attributes of any potential delegate.

3.14 The Committee drew this provision to the attention of Minister, who responded:

To accommodate the Committee's preference, I have since moved an amendment to clause 69 of the Bill which confines the power of the Minister to delegate authority under the Act to a limited class of persons including the Secretary of the Department of Foreign Affairs and Trade, the Director of the Australian Comprehensive Test Ban Office and members of the Senior Executive Service of the Department of Foreign Affairs and Trade. [6]

Some further examples

3.15 During the Parliament, the Committee queried a number of similar provisions. For example, in Alert Digest No 2 of 1996, the Committee noted that an amendment included in the Workplace Relations And Other Legislation Amendment Bill 1996 proposed to permit the Employment Advocate to delegate some apparently very general functions to `any person'. In response, the Minister pointed out that the functions to be delegated were the provision of advice and assistance – these were delegated because they did not extend to altering anyone's entitlements or exercising any coercive powers. [7]

3.16 In Alert Digest No 1 of 1997, the Committee considered various provisions of the Telecommunications Bill 1996. Clause 439 of the bill enabled the Australian Communications Authority (ACA) to make a plan for the numbering of carriage services in Australia and the use of numbers in connection with the supply of such services. Clause 451 permitted the ACA to delegate any or all of the powers conferred on it by the numbering plan to “a body corporate”. The Committee considered that “as the numbering plan has yet to be made, the powers capable of being delegated are unknown and therefore without limit. Equally `a body corporate' is an unknown quantity”. It therefore sought the advice of the Minister on whether the bill could be amended to confine this open-ended discretion.

3.17 In response, the Minister observed that there were restrictions on what might be included in a numbering plan, and on the exercise of any discretions provided by the plan, and that the ACA was obliged to publicly consult on a draft of the plan. In addition, the Explanatory Memorandum indicated that the plan would provide for the review of any decisions of an administrative character. Finally, clause 451(2) provided a further safeguard in that anyone exercising delegated power was subject to the written directions of the ACA. It was anticipated that the body corporate to which the ACA might delegate its powers would be formed by industry and would be representative of the stakeholder interests involved in the management of the numbering plan. He saw the inclusion of review rights and the ACA's power of direction as adequate safeguards against any possible problem that might arise from allowing the delegation of yet-to-be-defined discretions under the numbering plan to a body corporate. [8]

3.18 The Committee noted that, while the ACA's power of direction was included in the bill, review rights were merely a promise. The Committee therefore suggested amending the bill to provide that the ACA's written directions must include a direction to establish the foreshadowed merits review of administrative decisions. In the event, the bill was passed unamended.

Notification of appeal rights

3.19 The Committee takes the view that, when legislation provides for the notification of a decision, it should also include a statement of any right of appeal available to the parties adversely affected by that decision.

3.20 The Committee has dealt with this issue on a number of occasions in the past. [9] It is happy to say that the issue did not directly arise during the course of the 38th Parliament.

Footnotes

[1] Scrutiny of Bills Committee, First Report of 1982, p 10, commenting on the Criminal Investigation Bill 1981.

[2] Scrutiny of Bills Committee, Seventh to Twelfth Reports of 1984, p 37, commenting on the Air Navigation (Charges) Amendment Bill 1984.

[3] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, p 225.

[4] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, p 227.

[5] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, p 107.

[6] Scrutiny of Bills Committee, First to Eleventh Reports of 1998, pp 155-6.

[7] Scrutiny of Bills Committee, First to Thirteenth Reports of 1996, pp 75-6.

[8] Scrutiny of Bills Committee, First to Nineteenth Reports of 1997, p 80

[9] See, for example, Scrutiny of Bills Committee, One to Eight Reports of 1985, p 3, concerning the Horticultural-Plant Variety Rights Bill 1984 [1985].