Defence Legislation Amendment (Instrument Making) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 391 (15 November 2017)

• Defence Legislation Amendment (Instrument Making) Bill 2017
• Significant matters in delegated legislation30
• Broad delegation of administrative power35
• Use of force37

---

Defence Legislation Amendment (Instrument Making) Bill 2017

Purpose	This bill seeks to amend the instrument making powers in the Defence Act 1903 (the Act) to ensure that, when re-making certain instruments made under the Act in the future, the instruments can reflect policy requirements and approaches to drafting
Portfolio	Defence
Introduced	House of Representatives on 14 September 2017
Bill status	Before the Senate
Scrutiny principles	Standing Order 24(1)(a)(ii), (iv)

2.65 The committee dealt with this bill in Scrutiny Digest No. 12 of 2017. The Minister responded to the committee's comments in a letter dated 26 October 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 available on the committee's website.^[29]

Significant matters in delegated legislation^[30]

Initial scrutiny – extract

2.66 Part 1 of Schedule 1 seeks to amend the regulation-making powers in the Defence Act 1903 relating to inquiries. Currently the regulation-making power enables regulations to be made for or relating to the appointment, procedures and powers of courts of inquiry, boards of inquiry, Chief of Defence Force commissions of inquiry and inquiry officers. The proposed amendments would instead provide for a more general power to make regulations relating to inquiries into matters concerning the Defence Force, including their appointment, procedures and powers.

2.67 The committee notes that the power to appoint a commission of inquiry and the detail of the inquiry's procedures and powers contain matters that go beyond mere technical detail. The committee notes the regulations currently made using the existing powers contain offence provisions and significant detail about how an inquiry is to be conducted.^[31] The committee's view is that significant matters such as these should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

2.68 The committee notes that the explanatory memorandum simply states that the bill does not make any changes to the ability to make regulations to compel a person to appear before and answer questions at an inquiry.^[32] It does not state whether consideration was given as to whether the details regarding commissions of inquiry would be more appropriate for inclusion in the primary legislation.

2.69 In addition, Part 2 of Schedule 1 provides that the regulations may prescribe matters relating to the regulation or prohibition of all types of hazards to aviation and aviation-related communications within a defence aviation area, including what objects can be brought within defence aviation areas. It also provides that provisions of the regulations are subject to monitoring under the Regulatory Powers (Standard Provisions) Act 2014.^[33] The explanatory memorandum states that consideration was given to whether the scheme as a whole should be moved into the principal Act, rather than being established in delegated legislation, but it was decided that it was appropriate to continue the scheme in delegated legislation to provide the necessary flexibility and consistency with similar legislation.^[34] However, the committee notes that the regulation of all types of hazards to aviation and aviation-related communications, which includes prohibiting the construction or use of buildings, structures or objects within a defence aviation area, is a significant matter that may be more appropriate for inclusion in primary legislation, noting that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

2.70 The committee's view is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this regard, the committee:

• seeks the Minister's advice as to why details regarding the appointment, procedures and powers of a defence force commission of inquiry are left to delegated legislation rather than set out in primary legislation (Part 1 of Schedule 1); and

• leaves to the Senate as a whole the appropriateness of leaving to delegated legislation the power to regulate or prohibit matters in defence aviation areas (Part 2 of Schedule 1).

Minister's response

2.71 The Minister advised:

I understand the Committee is seeking advice as to why details regarding the appointment, procedures and powers of a Defence Force commission of inquiry are left to delegated legislation rather than set out in primary legislation (Part 1 of Schedule 1 of the Bill).
Matters relating to the appointment, procedures and powers of inquiries concerning the Defence Force have been dealt with under Regulations for many decades. Defence is not aware that any of the numerous reviews about military justice (including inquiry arrangements) recommended that delegated legislation relating to Defence inquiries be incorporated in primary legislation, or proposing a model which would maintain sufficient flexibility to meet the needs of the Defence Force in respect of such inquiries.
The Defence Act 1903 (the Defence Act) has long permitted such regulations by expressly authorising provisions in regulations that, for example, create offences and compel individuals to provide evidence to Defence inquiries. When compared to current provisions in the Defence Act, this Bill does not propose changes that would permit increased powers concerning the appointment, procedures and powers of inquiries in Defence, including their capacity to affect personal rights and liabilities.
The current arrangements permit a necessary degree of flexibility for the Australian Government to determine forms of inquiry in the Defence Force, having regard to administrative, organisational and operational changes that occur from time to time. At the same time, appropriate Parliamentary oversight of the content of such regulations is maintained by the Senate Standing Committee on Regulations and Ordinances, as well as sunsetting arrangements under the Legislation Act 2003.
Further, it is noted that as recently as 2015, the regulation making powers in the Defence Act were modified to enable the creation of a separate regulation permitting the Inspector General Australian Defence Force (IGADF) to conduct inquiries into a range of matters concerning the Defence Force, including the procedures, powers and reporting requirements concerning such inquiries.
Lastly, it is noted that in its correspondence, the Committee referred to commissions of inquiry. This type of inquiry was generally used to inquire into Service-related deaths in the Defence Force. Following the recent amendments to the Defence Act in 2015, IGADF is now responsible for inquiring into Service-related deaths under the Inspector-General of the Australian Defence Force Regulation 2016, which means that commissions of inquiry have largely moved on from their original intended purpose.

Committee comment

2.72 The committee thanks the Minister for this response. The committee notes the Minister's advice that matters relating to the appointment, procedures and powers of inquiries concerning the Defence Force have been dealt with under regulations for many decades, no reviews have recommended that these matters be dealt with by primary legislation and this bill does not propose increasing any powers. The committee also notes the Minister's advice that the current arrangements permit a necessary degree of flexibility to determine forms of inquiry having regard to administrative, organisational and operational changes that occur from time to time.

2.73 The committee notes that the fact that certain powers have been contained in delegated legislation for many years without any recommendation that they be moved to primary legislation does not address the question of whether they would be more appropriate for inclusion in primary legislation.

2.74 The committee reiterates its view that the power to appoint a commission of inquiry and the detail of the inquiry's procedures and powers contain matters that go beyond mere technical detail and the committee's longstanding view is that significant matters such as these should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the justification provided is that the current arrangements permit a necessary degree of flexibility to determine forms of inquiry. However, the committee notes that it would appear to be possible to include significant matters regarding an inquiry's procedures and powers in primary legislation while leaving the details that may be affected by changes that may occur from time to time to the administrative, organisational and operational requirements to delegated legislation.

2.75 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of leaving the appointment, procedures and powers of Defence Force inquiries to delegated legislation rather than setting these out in primary legislation.

Broad delegation of administrative power^[35]

Initial scrutiny – extract

2.76 Proposed section 117AE triggers the monitoring powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to provisions of the regulations made for the purpose of proposed section 117AD. Proposed subsection 117AE(4) provides that an authorised person may be assisted 'by other persons' in exercising powers or performing functions or duties in relation to monitoring. The committee notes that the powers conferred on a person assisting also include a power to use force against things when executing a monitoring warrant. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers and the bill does not confine who may exercise the powers by reference to any particular expertise or training.

2.77 The committee therefore requests the Minister's advice as to why it is necessary to confer monitoring powers on any 'other person' to assist an authorised person and whether it would be appropriate to amend the bill to require that any person assisting an authorised person have specified skills, training or experience.

Minister's response

2.78 The Minister advised:

I understand the Committee is also seeking a detailed justification as to why it is necessary and appropriate to confer monitoring powers on any 'other person' to assist an authorised person in a defence aviation area, and whether it would be appropriate to amend the Bill to require that any person assisting an authorised person have specified skills, training or experience.
Authorised persons for the purpose of the scheme are appointed by the Secretary or the Chief of the Defence Force, and must have the knowledge, training or experience necessary to properly exercise the powers of an authorised person in a defence aviation area.
In the majority of cases, Defence is able to reach agreements with landowners in relation to aviation hazards. However, there may be limited circumstances where it is necessary to engage an external expert to assist Defence in assessing the situation and determining what actions are appropriate and necessary. For example, Defence may require the assistance of:

• a qualified surveyor to provide Defence with specialist advice on a structure's height;

• an engineer to provide general advice on the site; and/or

• an arborist to provide advice in relation to tree lopping.

The intent of the proposed measure is allow Defence to use external experts with specialist skills that Defence may not have internally, in dealing with a particular situation. Further, it is intended that a person assisting an authorised person is only authorised to use force against 'things' (e.g. hazards and obstacles), not 'persons'.
The nature of defence aviation and the nature of hazards to aviation are rapidly changing. It is critical that the regulation of those hazards is flexible enough to address change as it happens. The current arrangements permit a necessary degree of flexibility for Defence to determine the specific skills, training or experience required to assist Defence in dealing with aviation hazards, particularly in emergency situations. Therefore, it would not be appropriate to amend the Bill to require that any person assisting an authorised person have specific skills, training or experience. This matter is best dealt with on a case by case basis, depending on the particular hazard, site or situation.

Committee comment

2.79 The committee thanks the Minister for this response. The committee notes the Minister's advice that there may be limited circumstances in which it is necessary to engage an external expert, such as a qualified surveyor, engineer or arborist, to assist Defence in assessing the situation and determining what actions are appropriate and necessary. The committee also notes the Minister's advice that the nature of defence aviation and its hazards are rapidly changing and the current arrangements permit a degree of flexibility for Defence to determine the specific skills, training or experience required to assist Defence in dealing with aviation hazards, particularly in emergency situations. The committee also notes the advice that a person assisting an authorised person is authorised only to use force against 'things' not 'persons'.

2.80 The committee's consistent scrutiny position in relation to the exercise of coercive powers is that persons authorised to use such powers should have received appropriate training. The committee understands the need for flexibility in determining who may be appropriate 'other persons' in the particular circumstances of a defence aviation area. However, the committee remains concerned that 'other persons' will be authorised to assist in monitoring, and in this case use force against things, without any requirement for them to have received training in the use of the relevant monitoring powers.

2.81 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing 'other persons' to assist authorised persons in exercising potentially coercive powers,^[36] including the use of force against 'things', in circumstances where there is no legislative guidance about the appropriate skills and training required of those 'other persons'.

Use of force^[37]

Initial scrutiny – extract

2.82 Proposed subsection 117AF(3) provides that in executing a monitoring warrant for the purpose of ensuring compliance with a relevant provision of the regulations, an authorised person may use such force against persons and things, and a person assisting may use such force against things, as is necessary and reasonable in the circumstances. This goes beyond the standard powers available in relation to monitoring as provided for in the Regulatory Powers (Standard Provisions) Act 2014.

2.83 The explanatory memorandum explains that it is necessary to modify the relevant Part of the Regulatory Powers (Standard Provisions) Act 2014 as it is necessary to enable authorised persons to enter land and premises for a range of purposes, including removing or marking hazardous objects, such as removing destroying or modifying a building, structure or object.^[38] The explanatory memorandum also states that it is important to ensure there is a mechanism to deal with hazardous objects if people are unwilling to comply with requirements. Thus, it may be inferred that a provision enabling the use of force against 'things' may be necessary. However, no explanation is given as to why a provision enabling the use of force against 'persons' is necessary. The committee notes that the Guide to Framing Commonwealth Offences states that the use of force against persons and things should be examined and justified separately, and that generally it will be easier to demonstrate a need for a provision authorising the use of force against things to execute a warrant, than it will be to demonstrate the need for a provision authorising the use of force against persons for regulatory regimes governing compliance.^[39]

2.84 The committee seeks the Minister's detailed justification as to why it is necessary and appropriate to empower an authorised person to use force against persons in executing a monitoring warrant in a defence aviation area.

Minister's response

2.85 The Minister advised:

I understand the Committee is also seeking detailed justification as to why it is necessary and appropriate to empower an authorised person to use force against persons in executing a monitoring warrant in a defence aviation area.
The proposed measures provide for authorised persons to enter land and premises for a range of purposes, including removing or marking hazardous objects. These powers are important aspects of the scheme ensuring that there is a mechanism to deal with hazardous objects if people are unwilling to comply with requirements.
In the vast majority of cases, Defence is able to reach agreement with landowners in relation to aviation hazards. However, there may be situations where an authorised person may be required to enter land to inspect or remove a hazard against the wishes of a landowner. For example:

• a crane operator under pressure from a client may not wish to have their crane lowered to a safe level;

• a landowner may refuse to move obstacles that have been erected without approval; and/or

• a landowner may try to stop an authorised officer investigating or dismantling an obstacle or lopping a hazardous tree.

It is critical that authorised persons are able to use necessary and reasonable force against persons or things, given the potential significant impact on aviation safety and Defence operation capability.
I have been advised that civilian authorities currently have similar powers in the Civil Aviation (Buildings Control) Regulations 1988 which provides that 'the Authority may authorise any necessary action and the use of any reasonable force for the purpose of preventing a contravention of, or securing compliance with, these Regulations' (see subsection 15(2)).

Committee comment

2.86 The committee thanks the Minister for this response. The committee notes the Minister's advice that the proposed measures provide for authorised persons to enter land and premises for a range of purposes, including removing or marking hazardous objects and there may be situations where authorised persons may be required to enter property against the wishes of a landowner. The committee notes the examples given by the Minister as to when an authorised person may need to enter without the landowners consent and the Minister's view that it is 'critical that authorised persons are able to use necessary and reasonable force against persons or things, given the potential significant impact on aviation safety and Defence operation capability'.

2.87 The committee notes that the examples provided by the committee appear to demonstrate the need for an authorised person to be able to use force against 'things' but does not necessarily provide a justification for empowering an authorised person to use force against 'persons'. The Minister's response does not specifically explain what use of force against persons could be required in the examples provided. It is unclear to the committee from the Minister's response whether, if persons are refusing to allow authorised persons to move equipment or obstacles or lop hazardous trees, it is intended that the authorised person could, using force, physically restrain or detain the landowner.

2.88 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.89 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of empowering authorised persons to use force against persons when executing a monitoring warrant in a defence aviation area.

---

[29] See correspondence relating to Scrutiny Digest No. 12 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest

[30] Items 1-5 of Schedule 1 and item 7 of Schedule 2, proposed section 117AD. The committee draws Senators' attention to these provisions pursuant to principle 1(a)(iv) of the committee's terms of reference.

[31] See Defence (Inquiry) Regulations 1985.

[32] See explanatory memorandum, p. 8.

[33] See item 7 of Schedule 2, proposed section 117AE.

[34] Explanatory memorandum, p. 10.

[35] Schedule 1, item 7, proposed subsection 117AE(4). The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.

[36] See Part 2 of the Regulatory Powers (Standard Provisions) Act 2014.

[37] Schedule 1, item 7, proposed subsection 117AF(3). The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.

[38] Explanatory memorandum, pp 12-13.

[39] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 80.