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 that make rights and liberties unduly dependent upon 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.

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

Ill-defined and wide powers

3.2       Since its establishment in the early 1980s, the Committee has drawn the Senate’s attention to legislation that gives administrators seemingly ill-defined and wide powers. Examples from previous Parliaments include the Criminal Investigation Bill 1981, which authorised a person to take ‘necessary... measures’,[1] and the Air Navigation (Charges) Amendment Bill 1984, 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]

3.3       During the 41^st Parliament, the Committee commented on proposed new subsection 25-4D(1) of the Aged Care Act 1997, to be inserted by item 16 of
Schedule 1 of the Aged Care Amendment (Residential Care) Bill 2007. This subsection provided that, if the Secretary of the Department of Health and Ageing required further information to decide whether to lift an approved provider’s suspension from making aged care appraisals and reappraisals, the Secretary ‘may give the applicant a written notice requiring the applicant to give the further information within fourteen days after receiving the notice, or within such shorter period as is specified in the notice.’[3] The Committee noted that if a provider failed to give the additional information within the time specified by the Secretary, their application to have their suspension lifted would be taken to have been withdrawn.

3.4       Where a bill confers powers of this nature on an official, the Committee has an expectation that these powers will be exercised in a way that is not arbitrary or unreasonable. The Committee noted that, as drafted, proposed new subsection
25-4D(1) would allow the Secretary to request information within very short timeframes, should he or she choose to do so, without having regard to the circumstances of the approved provider or what would be considered reasonable in the normal course of events. The Committee sought the Minister’s advice as to why it was considered necessary for the Secretary to be able to specify a period of less than fourteen days for the production of additional information and whether it might be possible to limit this power in some way so as to ensure that it was not used in an arbitrary or unreasonable manner.[4]

3.5       The Minister for Ageing responded, drawing the Committee’s attention to provisions under section 96-7 of the Aged Care Act 1997, which ‘allow for the period for giving information to be extended at the applicant’s request.’[5] The Minister also emphasised that the introduction of new sections 25-4A to 25-4E of the Act was aimed at giving approved providers ‘an opportunity by encouraging them to take an active approach to improvement through the provision of training and assistance provided by the appointment of an adviser.’[6]

3.6       The Committee thanked the Minister for this response and noted that it would have been helpful if this information had been included in the explanatory memorandum to the bill.

Delegation of power to ‘a person’

3.7       Since its establishment, the Committee has consistently drawn attention to legislation that allows significant and wide-ranging powers to be delegated to anyone who fits the all-embracing description of ‘a person’.

3.8       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: Employment and Workplace Relations Legislation Amendment (Welfare to Work and Vocational Rehabilitation Services) Bill 2006

3.9       In Alert Digest No. 1 of 2007, the Committee noted that proposed new paragraph 34(1)(a) of the Disability Services Act 1986, to be inserted by item 16 of Schedule 1 of this bill, would permit the Secretary to the Department to ‘delegate to an officer all or any of the powers of the Secretary under Part III’ of that Act. Item 2 of Schedule 1 would amend section 4 of the Disability Services Act 1986 to define ‘officer’ as including a person or company who or which ‘performs services on behalf of the Department under a contract made between [the person or company] and the Commonwealth’ or an employee of such a person or company. The Committee noted that the Secretary would, therefore, be given the power to delegate all or any of his or her powers to any employee of a company to which the Department has outsourced the provision of services, without reference to the capabilities or qualifications of such an employee. The Committee sought the Minister’s advice as to whether this very broad power of delegation should not be limited in some way.

3.10         The Minister for Workforce Participation responded that ‘the Secretary’s powers of delegation will be sufficiently limited by a range of legislative and contractual safeguards for any powers that the Secretary may delegate.’[7] The Minister advised that such safeguards would include:

• the development of legislative guidelines, which could be disallowed by the Parliament, to guide the Secretary in the administration of Part III of the Act;

• a clause within the bill requiring that, in exercising any delegated powers, the delegate must comply with directions of the Secretary;

• decisions under Part III of the Act being subject to review mechanisms, including review by the Administrative Appeals Tribunal;

• contractual arrangements that would set out in detail the manner in which any delegation was to be exercised; and

• consideration of the qualifications and experience of the tenderer’s staff (to whom powers may be delegated) when assessing tenders for the provision of Vocational Rehabilitation Services.[8]

3.11         The Committee thanked the Minster for this response, noting the advice that guidelines would be developed to guide the Secretary and that those guidelines would be disallowable instruments. However, the Committee remained concerned about the contractual safeguards outlined by the Minister, as neither the Committee nor the Senate as a whole would have any knowledge of the content of the contracts nor, possibly, how successful they were in ensuring that the delegations were kept within proper bounds. The Committee therefore sought the Minister’s further advice regarding whether the legislative guidelines would include information on the proposed contractual safeguards, thus making them subject to the scrutiny of the Parliament or, if not, whether the Minister might give further consideration to limiting in some other way the very wide discretion given to the Secretary under proposed new paragraph 34(1)(a).[9]

3.12         The Minister advised the Committee that the guidelines would be developed in consultation with community organisations, people with disabilities and their advocates and would be subject to disallowance by the Parliament. However, the detailed requirements of providers of Vocational Rehabilitation Services would be set out in the contract as ‘it would be impractical to include this level of detail in the... Guidelines.’[10] The Minister further assured the Committee that:

...VRS [Vocational Rehabilitation Services] providers must comply with the Disability Services Standards, which set out a range of standards that must be met in the provision of a rehabilitation programme. The Standards are a legislative instrument under s. 5A of the DSA [Disability Services Act], and are themselves disallowable under the Legislative Instruments Act 2003. The requirement to comply with the Standards will be included in the contract with VRS providers. Compliance with the Standards is independently assessed.[11]

3.13         The Committee thanked the Minister for this further response. The Committee noted the Minister’s assurance that the contracts under which the providers of Vocational Rehabilitation Services would operate would oblige those providers to comply with the Disability Services Standards and that this compliance would be independently assessed. The Committee concluded that this addressed its concerns.

Example: Education Services for Overseas Students Legislation Amendment Bill 2007

3.14         In Alert Digest No. 4 of 2007, the Committee commented on proposed new paragraph 48(3)(b) of the Education Services for Overseas Students Act 2000, to be inserted by item 1 of Schedule 1 of this bill.  This provision would permit the Minister responsible for administering the Christmas Island Act 1958 to delegate all or any of his or her functions or powers as a designated authority under the Education Services for Overseas Students Act 2000 either to a member of the Senior Executive Service in the Australian Public Service or to ‘an officer or employee of a State’. The Committee noted that this provision gave the relevant Minister a very wide discretion in determining who to delegate powers and functions to in respect of State based employees, as it placed no limits on the qualifications or attributes of the intended delegate.

3.15         The Committee noted that rank profiles in State Public Service structures may vary between jurisdictions and, as a result, it may be difficult to include any requirement about the rank of a state government employee delegate that is analogous to the Senior Executive Service in the Australian Public Service. This was the reason given for a similar drafting of a delegation provision in the Offshore Petroleum Amendment (Greater Sunrise) Bill 2007, which the Committee accepted. Unlike that bill, however, the Committee noted that the explanatory memorandum to the Education Services for Overseas Students Legislation Amendment Bill 2007 did not proffer any explanation for the wide delegation of powers to state government officials. The Committee sought the Minister’s advice as to the reason for this wide discretion and whether it should be limited in some way.[12]

3.16         The Minister for Education, Science and Training responded that:

Australian Government policy is to, wherever possible, be consistent in both the provision of services and legislative powers between the mainland and the external territories. This proposed amendment is consistent with the schema for the role of the designated authority under the ESOS [Education Services for Overseas Students] Act. If the delegation power in the ESOS Act for the Territories Minister was limited it would result in an inconsistency between the way that approval of education providers is carried out on the external territories of Christmas Island and Cocos (Keeling) Islands and the way that it can be done in other states and territories.

It is the responsibility of the Territories Minister, as it is for state and territory governments, to determine the best way to exercise a function in respect of a territory. The most appropriate way for the function to be carried out may change over time and the proposed provision must allow for flexibility to accommodate any such changes. I therefore do not consider it necessary to limit the delegation power.[13]

3.17         The Committee thanked the Minister for this response and noted that it would have been helpful if an explanation had been included in the explanatory memorandum to the bill. The Committee reiterated its concern about the increasing tendency to delegate powers to too large a section of the public service, with no reference to the qualifications or experience of the intended delegate.[14]

Example: Australian Centre for International Agricultural Research Amendment Bill 2007

3.18         In Alert Digest No. 6 of 2007, the Committee commented on proposed new
section 41 of the Australian Centre for International Agricultural Research Act 1982, to be inserted by this bill, which would permit the Minister to delegate to ‘any person’ all or any of the Minister’s functions or powers under the Act. The Committee noted that the explanatory memorandum sought to justify this very wide power of delegation on the basis that ‘there may be circumstances where it would not be appropriate for the Minister to delegate those functions or powers to the [Chief Executive Officer of the Centre].’ While acknowledging that this may be the case, the Committee was concerned that the solution adopted was to allow delegation to ‘any person’ rather than to attempt to limit the power to delegate in some way by identifying the various classes of persons, for example, CEO, Commissioner etc, to whom such delegations might reasonably be made. The Committee sought the Minister’s advice whether this very wide power of delegation should be limited in some way.

3.19         The Minister for Foreign Affairs responded, advising the Committee that the power of delegation provided by item 36 of this bill was no wider than the existing delegation in section 41 of the Australian Centre for International Agricultural Research Act 1982 (which was to be repealed by item 36). The Minister advised that he did not believe that the new delegation provision should be limited as: 

the ability to delegate to ‘any person’ provides the Minister with flexibility to ensure that any of his powers are delegated to a person with the requisite skills and experience, which could be to a person working within the organisation, or elsewhere within the foreign affairs portfolio.[15]

3.20         The Committee thanked the Minister for this response, but indicated that, in the Committee’s view, the fact that the existing power of delegation under section 41 of the Act was not limited to a particular class of persons did not justify a similar provision under item 36 of this bill. The Committee reiterated its concern that this provision gave the Minister a completely unfettered discretion to delegate his or her powers, which was not subject to review in any way by the Parliament.

3.21         Noting the Minister’s advice that the delegate would be an employee within the Australian Centre for International Agricultural Research or elsewhere within the foreign affairs portfolio, the Committee sought the Minister’s further advice as to whether these limitations could be included in the bill.[16]

3.22         The Minister responded that:

I have considered the Committee’s views and advise that I do not wish to limit item 36 of the bill as suggested. I note the Committee’s concerns that such a broad power may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee’s terms of reference. However, I draw to your attention that there are some precedents for this approach, including section 53 of the Australian Citizenship Act 2007 and section 49 of the Offshore Petroleum Act 2006.[17]

3.23         The Committee thanked the Minister for this further response. The Committee noted that in his original response of 19 June 2007, the Minister indicated that:

the ability to delegate to ‘any person’ provides the Minister with flexibility to ensure that any of his powers are delegated to a person with the requisite skills and experience, which could be to a person working within the organisation, or elsewhere within the foreign affairs portfolio.[18]

3.24         The Committee indicated that had the provision included these modifiers, ie. allowed the Minister to delegate powers to a person ‘with the requisite skills and experience’ and/or ‘working within the Australian Centre for International Agricultural Research’ or the ‘foreign affairs portfolio’, it would have been reassured. However, as drafted, the provision would permit the Minister to delegate his or her powers to whomever he or she thinks fit, regardless of the delegate’s qualifications, experience or place of employment. As such, the Committee continued to draw the provision to the attention of Senators, on the basis that it may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee’s terms of reference.[19]

3.25         The Committee also commented on the Minister’s reference to precedents in other bills, noting that the similarly wide power of delegation in section 53 of the Australian Citizenship Act 2007 was a provision on which the Committee commented in Alert Digest No. 14 of 2005. On receiving the response from the Minister that any limitation on the width of the power of delegation ‘would unreasonably limit the existing capacity of the Minister to pursue effective and efficient administration of the Act’, the Committee responded, in its First Report of 2006, that ‘the question of whether a completely unfettered discretion, as provided for by Clause 53, is justified, remains unanswered’ and continued to draw that provision to the attention of Senators.

3.26         The Australian Centre for International Agricultural Research Amendment Bill 2007 was passed without amendment.

 

Notification of appeal rights

3.27         The Committee takes the view that when legislation provides for the notification of a decision, it should also include a statement of any rights of appeal available to the parties adversely affected by that decision. The Committee has dealt with this issue on a number of occasions in the past,[20] but is happy to report that the issue did not arise during the course of the 41^st Parliament.   

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