Petroleum and Other Fuels Reporting Bill 2017 [2017] AUSStaCSBSD 136 (10 May 2017)

• Petroleum and Other Fuels Reporting Bill 2017
• Broad delegation of coercive powers 97

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Petroleum and Other Fuels Reporting Bill 2017

Purpose	This bill seeks to establish a mandatory reporting regime for fuel information
Portfolio	Environment and Energy
Introduced	House of Representatives on 30 March 2017

Broad delegation of coercive powers ^[97]

1.123 This bill seeks to establish a mandatory reporting regime for fuel information. Clause 34 empowers the Secretary to appoint any APS employee in the department and private consultants and contractors to exercise coercive powers in order to review, audit and verify information provided under the regime. The coercive powers include entering premises with the consent of the occupier or under warrant and other compliance monitoring powers.

1.124 The committee has consistently drawn attention to legislation that allows the delegation of coercive powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope 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 officers or to members of the Senior Executive Service or, where relevant, to persons with specific training. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.125 The committee's scrutiny concerns in relation to the broad delegation of coercive powers is heightened when the delegation is extended to non-APS persons, as such decision-makers may not be subject to the same level of accountability and oversight that apply to members of the public service. For example, the APS Code of Conduct applies only to employees of the Australian Public Service. The justification for delegating these powers to consultants and contractors in this instance is addressed in the explanatory memorandum in some detail:

The Secretary could engage consultants and contractors as authorised persons as the necessary expertise to review and audit information received under clause 11 may not be available within the Department. Authorised persons would need skills and experience in one or more of auditing, engineering, geology and the fuel market to be effective. It is envisioned that the Department may need to engage more than one contractor or consultant in the future as different issues may require different skills and experience. It is envisioned that if a consultant or contractor was engaged by the Secretary as an authorised person that:
• the authorised person would be subject to a contractual relationship with the Department;
• the authorised person would maintain the appropriate professional qualification/s and membership/s associated with their relevant expertise;
• the authorised person would be sufficiently senior and experienced to perform the functions they are expected to perform; and
• the Secretary would issue directions to ensure the authorised person used their powers appropriately. For example, a requirement that the contracted auditor not use, record or disclose protected information they obtain through their position except in accordance with their role and function as an auditor would be expected to be a common condition.^[98]

1.126 A general limitation on the delegation of these coercive powers is provided in subclause 34(2) which provides that the Secretary must not appoint a person as an authorised person unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the relevant powers. In addition, the explanatory memorandum states that 'it is envisioned that relevant factors for the Secretary's consideration would include any training or experience as an inspector or auditor, experience in fuel or fuel-related markets and any experience exercising monitoring powers'.^[99]

1.127 While the committee welcomes the general limitation in subclause 34(2) regarding the appointment of persons as authorised persons, the committee still requests the Minister's advice as to:

• why it is necessary to allow these coercive powers to be delegated to an APS employee at any level (and whether the bill can be amended to limit the delegation of these powers to SES-level employees, or at least Executive level employees, or employees with specific training); and

• whether the bill can be amended to provide more specific legislative guidance on the face of the bill as to the circumstances and conditions under which the Secretary may appoint a person as an authorised person, for example, to provide that a person can only be appointed as an authorised person if they have training or experience as an inspector or auditor or in exercising monitoring powers, and to provide that a contracted auditor must not use, record or disclose protected information they obtain through their position except in accordance with their role and function as an auditor.

Pending the Minister's reply, the committee draws Senators' attention to the provision, as 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.

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[97] Clause 34.

[98] Explanatory memorandum, p. 31.

[99] Explanatory memorandum, p. 30.