Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017 [2017] AUSStaCSBSD 142 (10 May 2017)

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Purpose	This bill seeks to amend various Acts relating to veterans' entitlements and military rehabilitation and compensation to: • amend the Veterans' Review Board's operations; • amend the Specialist Medical Review Council operation by: o simplifying the nomination and appointment process for councillors; o enabling online lodgement of claims; o amending the notice of investigation requirements; and o providing for reimbursement of certain travel expenses; • enable the Minister for Veterans' Affairs to enter into arrangements with a broader range of countries; • clarify the vocational rehabilitation assistance under the Employer Incentive Scheme; • allow information sharing between the Military Rehabilitation and Compensation Commission and the Commonwealth Superannuation Corporation with respect to certain service related compensation claims; • amend the Military Rehabilitation and Compensation Act 2004 to provide for the delegation of the Minister for Veterans' Affairs' powers and functions; • exempt certain legislative instruments from subsection 14(2) of the Legislation Act 2003; and • make a number of minor amendments
Portfolio	Veterans' Affairs
Introduced	House of Representatives on 30 March 2017

Broad delegation of administrative powers^[121]

1.147 Item 1 of Schedule 6 seeks to provide the Minister with the power to delegate any of his or her powers and functions under the Military Rehabilitation and Compensation Act 2004 (MRCA) to a commissioner of the Military Rehabilitation and Compensation Commission (MRCC) or to a person appointed or engaged under the Public Service Act 1999. This would enable the delegation of any power or function to a public servant at any level and in any government department.

1.148 The committee has consistently drawn attention to legislation that allows the delegation of administrative 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. 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.

1.149 The explanatory materials do not explain why it is necessary to provide for such a broad delegation to a person of any level of the public service. The explanatory memorandum sets out the powers and functions that may be delegated, which includes the approval of determinations by the MRCC concerning variations to and the revocation of the MRCA Education and Training Scheme; Treatment Principles; and the MRCA Pharmaceutical Benefits Scheme.^[122] It states that it is proposed that the delegation of these powers is to be on the basis that only the Chief Operating Officer in the Department can approve these instruments.^[123] However, there is nothing in the bill that would limit it in this way. The explanatory memorandum also states that the other functions or powers contain 'relatively minor matters' that may need to be exercised by the employees of other departments.^[124] However, no justification is provided as to why these matters could be delegated to an APS employee at any level.

1.150 It is noted that the committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level.

1.151 The committee requests the Minister's advice as to why it is necessary to allow all of the Minister's powers and functions to be delegated to any APS employee at any level and seeks the Minister's advice as to whether the bill can be amended to provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated.

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.

Incorporation of external material into the law^[125]

1.152 Schedule 7 makes a number of amendments to Veteran's Affairs portfolio legislation to enable certain legislative instruments to incorporate matters contained in other instruments or written materials as in force from time to time. This is achieved by exempting these instruments from subsection 14(2) of the Legislation Act 2003 which provides that unless specific legislative instruments are exempted they 'may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time'.

1.153 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

1.154 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[126] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

1.155 In explaining why it is proposed to allow these particular instruments to incorporate external material, the explanatory memorandum states that the restriction on incorporation in subsection 14(2) of the Legislation Act 'causes significant administrative issues for the Department'. For example, where there is a change in an incorporated document as a result of a policy imperative:

1.156 There are two categories of documents as in force from time to time which it is envisaged will be incorporated if these legislative instruments are exempted from the restriction in subsection 14(2) of the Legislation Act.

1.157 First, non-legislative documents prepared by the Department, such as Fee Schedules. The explanatory memorandum states that all of these documents 'can be easily accessed on-line via the Department's website or via links on the Department's website', although there is no legislative requirement for this to occur.^[128]

1.158 The second category of documents are 'well known publications such as the Diagnostic and Statistical Manual of Mental Disorders made by the American Psychiatric Association and the Pharmacopoeia published by the UK and US governments and the European Union'. The explanatory memorandum states that these are 'reference documents that are widely available'.^[129] It is not clear whether all documents in the second category will be freely available.

Pending the Minister's reply, the committee draws Senators' attention to the provisions, as they may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.

[126] Access to Australian Standards Adopted in Delegated Legislation, June 2016.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests