Principle (c): Administrative powers and functions

Overview

Senate standing order 23(3)(c) requires the committee to scrutinise each instrument as to whether it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers. Under this principle, the committee will typically be concerned with provisions in instruments which:

  • broadly delegate administrative powers and functions;
  • confer broad discretionary powers; or
  • facilitate automated administrative decision-making.

Conferral of broad discretionary powers

Instruments frequently confer discretionary powers on a person, for example, on the minister to make a decision. Where an instrument confers broad discretionary powers on a person, the instrument should set out the factors which the person must consider in exercising those powers. The explanatory statement should also address the following matters:

  • the purpose and scope of the discretionary powers, including why they are considered necessary;
  • an explanation of who will be exercising the discretion, including whether they possess the appropriate qualifications and necessary skills;
  • the nature and source of any limitations and safeguards relevant to the exercise of the powers, including whether they are contained in law or policy; and
  • the availability of independent merits review at the Administrative Appeals Tribunal or any other body, noting this issue is considered in more detail under principle (i).

Delegation of administrative powers and functions

Instruments may authorise a person to delegate their powers or functions to another person. Where an instrument confers the power to delegate administrative powers or functions on another person, the explanatory statement should address the following matters:

  • the purpose and scope of the delegation, including why it is considered necessary; and
  • an explanation of who will be exercising the delegated powers and functions, including whether they possess the appropriate qualifications and necessary skills; and
  • the nature and source of any limitations and safeguards relevant to the delegation, including whether they are contained in law or policy.

In addition, where the instrument authorises a person to delegate administrative powers or functions to a member of the Australian Public Service, the committee expects that the delegation will be limited to members of the Senior Executive Service (SES) or equivalent. Consequently, the explanatory statement should provide a thorough justification for any delegation of powers to officers below the SES level.

Automated decision-making

Provisions which facilitate automated administrative decision-making may also raise concerns under this principle, as they may fetter the exercise of discretionary power. Accordingly, the committee considers that, whilst technology may be used to assist in the decision-making process, instruments should not provide for the automation of discretionary decisions, themselves.

For this reason, the committee generally considers the use of automated systems to make decisions is only suitable in relation to non-discretionary decisions, except where the scope of discretion is very narrow with objective criteria. The committee's concerns regarding automated assistance in decision making will be heightened where independent merits review is not available (see principle (i) for further detail).

Where an instrument provides for automated assistance in a decision-making process, the explanatory statement should:

  • clearly explain that automated assistance/decision making is involved as well as the nature and extent of the automated element;
  • explain why it is considered necessary and appropriate to provide for automated assistance in the decision-making process;
  • explain what safeguards are in place to ensure the decision-maker exercises their discretionary powers personally and without fetter; and
  • explain whether rights are available for review of automated decisions by a human decision-maker, clear pathways to seek such review, and whether there are mechanisms in place to enable errors to be corrected.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument’s explanatory statement under scrutiny principle (c).

Purpose, scope and necessity of the provisions

The instrument’s explanatory statement should explain the purpose, scope and necessity of including provisions which confer broad discretionary powers on a person or authorise a person to delegate administrative powers or functions to others.

Qualifications and skills of the persons exercising the power

The instrument’s explanatory statement should explain why it is appropriate for the person or delegate to exercise administrative powers or functions, including whether they would possess the appropriate qualifications and necessary skills.

Limitations and safeguards

The instrument’s explanatory statement should explain the nature and source of any limitations or safeguards relevant to the exercise of the administrative powers or functions, including whether those safeguards or limitations are contained in law or policy. Where the instrument authorises the delegation of administrative powers or functions to a member of the Australian Public Service, the explanatory statement should provide a thorough justification for any delegation of powers to officers below the SES level.

Automated decision-making

Specifically, where an instrument facilitates automated decision making, the explanatory statement should explain:

  • the nature and extent of the automated decision-making;
  • why it is considered necessary and appropriate to provide for automated assistance in the decision-making process;
  • explain what safeguards are in place to ensure the decision-maker exercises their discretionary powers personally and without fetter, as well as in relation to review rights and correction of errors.

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