Transport Security Legislation Amendment Bill 2016 [2017] AUSStaCSBSD 21 (8 February 2017)

• Transport Security Legislation Amendment Bill 2016
• Broad delegation of administrative powers 57

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Transport Security Legislation Amendment Bill 2016

Purpose	This bill seeks to introduce regulation making powers in the Aviation Act that will enable aviation security screening to be undertaken on people, vehicles and goods operating within a restricted area or zone at a security controlled airport
Portfolio/Sponsor	Infrastructure and Regional Development
Introduced	House of Representatives on 1 December 2016

Broad delegation of administrative powers ^[57]

1.86 Items 7 and 8 will allow the Secretary of the Department of Infrastructure and Regional Development to, by writing, delegate most of his or her powers and functions under the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to any APS employee in the Department. Currently these delegations are limited to departmental officers at the Executive 2 level or above. These include some very significant powers and functions, including the giving of security directions or determinations of adverse aviation security status.^[58]

1.87 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.

1.88 The only explanation provided for allowing the delegation of most of the Secretary's functions to APS employees of any level is that it would 'give the Department greater administrative flexibility and capacity to process increased numbers of regulatory submissions from industry participants within statutory timeframes and to adapt administrative practices to changes in the security environment'.^[59] 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.

1.89 The committee requests the Minister's detailed advice as to why the bill proposes to allow most of the Secretary's powers and functions to be delegated to APS employees at any level. In particular, the committee notes that some very significant powers and functions will be able to be delegated to any APS employee and seeks the Minister's advice as to whether further exceptions to this broad delegation of administrative power could be added to subsection 127(2) of the Aviation Act and subsection 202(2) of the Maritime Act so that the delegation is more appropriately constrained.

Pending the Minister's reply, the committee draws Senators' attention to the provisions, as they 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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[57] Schedule 1, item 7, subsection 127(2) of the Aviation Transport Security Act 2004 and Schedule 1, item 8, subsection 202(2) of the Maritime Transport and Offshore Facilities Security Act 2003.

[58] See, for example, s 44(3) (Requirements for screening and clearing—written notices), ss 51 & 59 (Secretary may permit by class—weapons/prohibited items), s 67 (Secretary may give special security directions), s 74G (Secretary may determine that a person has an adverse aviation security status), and ss 109 & 111 (Secretary may require security compliance information/aviation security information) of the Aviation Act and s 22 (Secretary may declare maritime security level 2 or 3), ss 33, 36 & 36A (Secretary may give security directions), ss 88 & 100ZE (Secretary may delegate powers and functions), ss 99 & 100ZM (Secretary may give control directions), ss 125 & 132 (Secretary may permit by class—weapons/prohibited items), ss 136, 145D & 147 (Appointment of inspectors and duly authorised officers), and s 184 (Secretary may require security compliance information) of the Maritime Act. Please note these provisions are provided as examples only and are not an exhaustive list of the significant powers and functions within these Acts.

[59] Explanatory memorandum, p. 2.