Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 209 (14 June 2017)

• Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017
• Broad delegation of administrative powers 102
• Incorporation of external material into the law106

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Veterans' Affairs Legislation Amendment (Omnibus) Bill 2017

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
Bill status	Before House of Representatives
Scrutiny principles	Standing Order 24(1)(a)(ii) and (iv)

2.241 The committee dealt with this bill in Scrutiny Digest No. 5 of 2017. The Minister responded to the committee's comments in a letter dated 24 May 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 1.

Broad delegation of administrative powers ^[102]

Initial scrutiny – extract

2.242 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.

2.243 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.

2.244 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.^[103] 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.^[104] 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.^[105] However, no justification is provided as to why these matters could be delegated to an APS employee at any level.

2.245 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.

2.246 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.

Minister's response

2.247 The Minister advised:

The amendments were drafted to align the Military Rehabilitation and Compensation Act 2004 (MRCA) delegation powers with those of the Veterans' Entitlements Act 1986 (VEA) delegation powers.
The existing Ministerial powers in the VEA are not subject to any specific restrictions. Therefore in practice, it would be preferred that a similar approach would be adopted in respect to the MRCA.
However, in light of the concern expressed by the SCSB, it is proposed to make Government amendments to the Bill, subject to approvals being obtained, to appropriately limit the delegation of certain functions and powers to certain senior staff in the Department, such as officers at the SES or equivalent level.

Committee comment

2.248 The committee thanks the Minister for this response. The committee notes the Minister's advice that it is proposed to make government amendments to the bill, subject to approvals being obtained, to appropriately limit the delegation of certain functions and powers to certain senior staff in the Department, such as officers at the SES or equivalent level.

2.249 The committee welcomes the Minister's undertaking to amend the bill to appropriately limit the categories of people to whom the Minister's powers and functions under the Military Rehabilitation and Compensation Act 2004 may be delegated. The committee would also welcome amendments to similarly limit the delegation of ministerial powers and functions under the Veterans' Entitlements Act 1986.

2.250 In light of the Minister's commitment to amend the bill, the committee makes no further comment in relation to this matter.

Incorporation of external material into the law^[106]

Initial scrutiny – extract

2.251 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'.

2.252 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:

• raises the prospect of changes being made to the law in the absence of Parliamentary scrutiny;

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

2.253 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.^[107] 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.

2.254 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:

The policy change that arises because of the availability of a new rehabilitation appliance will delay the availability of the appliance because the legislative instrument (the 'Treatment Principles') that incorporates the document under which the appliance may be provided will need to be amended to refer to the changed date of that document.^[108]

2.255 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.

2.256 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.^[109]

2.257 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'.^[110] It is not clear whether all documents in the second category will be freely available.

2.258 The committee requests the Minister's advice as to:

• whether a legislative requirement could be included that each document incorporated which has been prepared by the Department must be made freely available on the Department's website; and

• what is the availability of documents which fall into the second category of well-known reference publications, including whether arrangements can be made so that these documents are freely and readily available to the public.

Minister's response

2.259 The Minister advised:

Currently the Treatment Principles, MRCA Treatment Principles, Repatriation Pharmaceutical Benefits Scheme and the MRCA Pharmaceutical Benefits Scheme incorporate documents by reference.
The incorporation of such documents benefits veterans as it enables a service provider to provide treatment using the most up to date information available. An exemption for these legislative instruments would not disadvantage veterans and other eligible persons.
Service providers will be familiar with all of the incorporated documents that are relevant to them and the location of the documents on the Department's website or the website of the relevant Department (usually the Department of Health).
The Department is currently creating a legislation webpage that will include details about new legislation. The site will be commence with details of the Omnibus Bill and will be online this week.
In addition, the Department proposes to use this webpage to provide links to legislative instruments, including the documents incorporated by reference into those legislative instruments. In this way, such documents will be freely available to the public.
At the present time, no documents are incorporated by reference into the remaining legislative instruments for which an exemption to subsection 14(2) of the Legislation Act 2003 has also been sought:

• the Guide to the Assessment of Rate of Veterans' Pensions (made under section 29 of the VEA with the equivalent made under section 67 of the MRCA);

• the Repatriation Private Patent Principles (made under section 90A of the VEA and the MRCA Private Patient Principles under section 286 of the MRCA).

The exemption for those documents was sought on the basis that there may be a future need to incorporate by reference non-legislative documents as in force from time to time. It is envisaged that such documents would be of a type that is readily available and not restricted by subscription.

Committee comment

2.260 The committee thanks the Minister for this response. The committee notes the Minister's advice that the incorporation of documents into delegated legislation benefits veterans as it enables a service provider to provide treatment using the most up to date information available. The committee also notes the advice that service providers will be familiar with all of the incorporated documents that are relevant to them.

2.261 The committee takes this opportunity to reiterate that it is fundamental principle of the rule of the law that every person subject to the law should be able to freely and readily access its terms. As a result, the committee will have scrutiny concerns when external materials that are incorporated into the law are not freely and readily available to persons to whom the law applies, or who may otherwise be interested in the law.

2.262 The committee notes the Minister's advice that the Department proposes to develop a legislation webpage which will provide links to legislative instruments, including the documents incorporated by reference into those legislative instruments. The Minister advises that, as a result, such documents will be freely available to the public. The committee welcomes this approach as it will greatly improve accessibility to material incorporated by reference and notes that if all documents incorporated by reference, including those in the second category of documents referred to above,^[111] are made freely available to the public the committee's scrutiny concerns in relation to this matter will be addressed.

2.263 The committee also takes this opportunity to highlight the expectations of the Senate Standing Committee on Regulations and Ordinances that delegated legislation which applies, adopts or incorporates any matter contained in an instrument or other writing should:

• clearly state the manner in which the documents are incorporated—that is, whether the material is being incorporated as in force or existing from time to time or as in force or existing at the commencement of the legislative instrument. This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material (see also section 14 of the Legislation Act 2003); and

• contain a description of the documents and indicate how they may be obtained (see paragraph 15J(2)(c) of the Legislation Act 2003).

2.264 The committee welcomes steps being undertaken by the Department of Veterans' Affairs to increase accessibility to material incorporated by reference in delegated legislation. The committee would appreciate receiving further advice from the Minister when the links to legislative instruments, including the documents incorporated by reference into those legislative instruments, have been included on the Department's legislation webpage. Based on the advice that all material incorporated into the law will be freely available to the public, the committee makes no further comment in relation to this matter at this stage.

2.265 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

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[102] Schedule 6, item 1.

[103] Explanatory memorandum, p. 25.

[104] Explanatory memorandum, p. 26.

[105] Explanatory memorandum p. 26.

[106] Schedule 7.

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

[108] Explanatory memorandum, p. 27.

[109] Explanatory memorandum, p. 28.

[110] Explanatory memorandum, p. 28.

[111] Reference 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.