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.
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 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]
Some examples from the 40th Parliament are outlined below.
Example: Aviation Transport Security Bill 2003
3.4
In Alert Digest No. 1 of 2004, the Committee commented on
a number of amendments to this bill that were made by the House of
Representatives on
3 December 2003. In particular, the Committee commented on subclause 95B(2) of
the bill, which provided that a screening officer could conduct a frisk search
of a person ‘to the extent necessary to complete the proper screening of the
person.’[3]
The Committee noted that ‘the extent of the search would appear to be left to
the discretion of the screening officer’ and sought the Minister’s advice as to
whether guidelines would be developed to assist screening officers in such
situations.
3.5
The Minister for Transport and Regional Services responded that
under the existing legislative regime the Secretary was required to make an
instrument setting out the manner and occasion of screening of people, vehicles
and goods and that this bill provided a similar requirement, although in this
case it could be in the form of either a regulation or an instrument made by
the Secretary. The Minister further advised that:
such an instrument will be made following commencement of the Bill
and will deal in detail with the exercise of powers under Clauses 95A and 95B.
This instrument will become the Australian screening standard and will be
adhered to by all screening authorities.
Further, the manner of screening instrument is used by screening
authorities to develop standard operating practices (SOPs). The SOPs provide a
greater level of detail and are designed to be used in the workplace.[4]
3.6
The Committee thanked the Minister for this advice but expressed
concern that guidance on the conduct and extent of a frisk search could be
determined by instruments that would not be subject to the same level of
transparency and scrutiny as the bill. The Committee noted that, under the Acts
Interpretation Act 1901, an instrument made by the Secretary would not be
subject to parliamentary scrutiny. Nor would such instruments be subject to
parliamentary scrutiny under the Legislative Instruments Act 2003, unless
they were determined to be of a legislative character or were declared to be
disallowable.[5]
3.7
The Committee indicated that they believed that there was merit
in providing for the disallowance of such instruments ‘as this allows the
expertise of the Regulations and Ordinances Committee to be brought to bear
should any contentious issues arise in the administration of the scheme.’[6]
The Committee left it for the Senate as a whole to determine whether such
instruments made by the Secretary should be subject to parliamentary scrutiny. The
Committee also noted that it would have been useful if the information provided
by the Minister had been included in the supplementary explanatory memorandum
to the bill. The Senate did not amend the bill to address the Committee’s
concern.
Example: Superannuation Safety Amendment Bill 2003
3.8
In Alert Digest No. 16 of 2003, the Committee commented on
provisions in the Superannuation Safety Amendment Bill 2003 that provided for
the Australian Prudential Regulation Authority (APRA) to cancel the licence of
a registrable superannuation entity if APRA had reason to believe that the
licensee would breach a condition imposed on the licence or fail to comply with
a direction under section 29EB of the Superannuation Industry (Supervisions)
Act 1993. The Committee noted that ‘it appears from these provisions that a
decision to cancel a licence may be made simply because APRA believes something
is not going to happen.’[7]
The Committee also noted that the explanatory memorandum did not provide any
advice about the basis on which APRA would make such decisions or whether there
would be a process whereby a licensee would receive prior notification of the
intention to cancel the licence and have an opportunity to remedy any alleged
breach or make submissions to APRA.
3.9
The Minister for Revenue and Assistant Treasurer responded to the
Committee in a letter dated 1 March 2004. The Minister advised that:
- the provisions would give APRA powers similar to those it already
had in relation to Approved Trustees under section 28 of the Superannuation
Industry (Supervisions) Act 1993;
-
a decision to cancel the licence of a registrable superannuation
entity would require the prior consent of the Minister before it was effected;
and
- APRA would, under normal circumstances, require the licensee to
show cause as to why its licence should not be cancelled and allow the licensee
time to respond. However, in extreme circumstances, where members’
superannuation assets were at immediate risk, this practice could be dispensed
with.[8]
3.10
The Committee thanked the Minister for this response, which
addressed its concerns.
Delegation of power to ‘a person’
3.11
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’.
3.12
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: General Insurance Reform Bill 2001[9]
3.13
In Alert Digest No. 11 of 2001, the Committee commented on
a number of amendments to this bill that had been made in the House of
Representatives. Among other things, the Committee sought advice on proposed
new paragraph 59(1)(b) of the Insurance Act 1973, which authorised an
inspector to delegate his or her powers to an APRA staff member or to ‘a person
included in a class of persons approved in writing by APRA.’[10]
The Committee noted that no explicit provision had been made requiring that a
delegate have appropriate training, qualifications or experience and sought the
Minister’s advice as to why such a wide and apparently unfettered power of
delegation was considered appropriate.
3.14
In a letter dated 21 June 2002, the Minister for Revenue and
Assistant Treasurer responded that:
The justification for not including explicit criteria in the
provisions outlining required levels of training, qualifications and experience
that the delegate must meet is for the same reason no provisions outline
explicit criteria for the inspector. Flexibility is required to tailor the
investigation to the particular circumstances of each case. To pose criteria in
the relevant provisions on the skills and experience of the delegates could
potentially limit the scope of a particular investigation. For this reason,
APRA is seeking discretion to approve the class of persons to which an inspector
could delegate powers.[11]
3.15
The Minister also noted that ‘in
most cases APRA does not envisage the investigator would be required to make
such delegations, as experience has shown that the majority of insurers are
willing to co-operate during an investigation.’
3.16
The Committee thanked the Minister for this response.
Example: Age Discrimination Bill 2003
3.17
In its Alert Digest No. 8 of 2003, the Committee commented
on a provision in this bill that would permit the Human Rights and Equal
Opportunities Commission (HREOC) to delegate ‘all or any of the powers and
functions conferred on it by this measure to another person or body of
persons’.[12]
The Committee noted that the explanatory memorandum failed to provide any
reason for this provision and sought the Attorney-General’s advice as to the
reason for the breadth of the discretion contained in the provision.
3.18
The Attorney-General responded that clause 55 of the bill
permitted the HREOC to delegate all or any of the powers conferred on it to
certain persons, including to a member of the Commission or a member of the
staff of the Commission (clauses 55(a) and (b) of the bill). Clause 55(c) was
worded very broadly, allowing the Commission to delegate all or any of its
powers to ‘another person or body of persons’ so as to allow the Commission to
delegate its powers to particular specialists as necessary. The
Attorney-General asserted that:
The breadth of paragraph 55(c) is intended
to expand the circumstances where the Commission may delegate its powers
beyond the specific circumstances mentioned in clause 55 in appropriate cases.
It is important that the Commission has sufficient flexibility to delegate its
powers to persons with particular expertise. This will enable the Commission to
undertake its responsibilities in the most effective manner. A similar
delegation power is present in all existing Commonwealth anti-discrimination laws
and has been used by the Commission in the performance of its functions under
those laws.[13]
3.19
To illustrate how this provision might be used, the
Attorney-General provided an example of where a similar broad delegation had
been used in the past, namely to delegate some of the HREOC’s powers to
specialists in child psychology, to assist with the Commission’s Inquiry into
Children in Detention.
3.20
The Committee thanked the Attorney-General for this response but
noted that it would have been helpful if this explanation had been included in
the explanatory memorandum to the bill.
Example: Environment Protection and Biodiversity
Conservation Act 1999
3.21
The bill for this Act was considered by the Committee in Alert
Digest No. 10 of 1998, in which it made various comments. The Minister for the
Environment and Heritage responded to those comments in the Committee’s Seventh
Report of 1999. Subsequently, the Committee’s attention was drawn to
subsection 515(3) of the Act, which authorises the Director of National Parks
to delegate all or any of his or her powers or functions under the Act ‘to a
person’. The Committee sought the Minister’s advice as to the reason for this
wide power of delegation and inquired whether it would be possible to limit the
categories of persons or bodies to whom (or which) such a delegation could be
made.[14]
3.22
The Minister for the Environment and Heritage responded that:
Commonwealth reserves and conservation zones managed by the
Director under the EPBC Act are located throughout Australia’s jurisdiction.
Many of these areas are remote and the issues faced in their administration and
management are numerous and varied. These issues include joint management
arrangements with Indigenous communities and the possibility of having local
people rapidly respond to emergency situations.
Confining delegations to holders of nominated offices or to
members of the Senior Executive Service would not provide the Director with
sufficient capacity to appropriately and effectively authorise the exercise of
his powers and functions...[15]
3.23
The Committee thanked the Minister for this response, noting that
it provided ample justification for providing the Director of National Parks
with a broad power to delegate. However, the Committee considered that ‘the
question of whether a completely unfettered discretion is justified’ remained
unanswered.[16]
3.24
While the Committee accepted that it may not always be possible
to delegate powers to nominated officers or to SES level employees, it
reiterated the general principle that a discretion to delegate ought to be
limited to a particular class of persons (for instance, persons with particular
expertise) or limited to a particular range of powers and functions. The
Committee considered that it may be appropriate for the Act to be amended at
some stage to reflect this principle, but noted that this was a question best
left to the Parliament.[17]
No such amendment was made during the 40th Parliament.
Notification of appeal rights
3.25
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,[18]
but is happy to report that the issue did not arise during the course of the 40th
Parliament.
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