Australian Institute of Health and Welfare Amendment Bill 2018 [2018] AUSStaCSBSD 105 (9 May 2018)

• Australian Institute of Health and Welfare Amendment Bill 2018

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Australian Institute of Health and Welfare Amendment Bill 2018

Purpose	This bill seeks to amend the Australian Institute of Health and Welfare Act 1987 to replace the current representative-based structure of the Australian Institute of Health and Welfare Board with membership consisting of a collective mix of skills from a range of different fields
Portfolio	Health
Introduced	House of Representatives on 28 March 2018

Broad delegation of administrative powers ^[15]

1.17 Proposed section 28 of the bill seeks to enable the Chief Executive Officer (CEO) of the Australian Institute of Health and Welfare (AIHW) to delegate any or all of the CEO's functions or powers under the Australian Institute of Health and Welfare Act 1987 (AIHW Act) to:

• a member of the staff of the AIHW (which may be any APS-level employee);^[16] or

• with the written approval of the Board of the AIHW—any other person or body.

1.18 Under proposed section 17A, the CEO would be responsible for the day-to-day administration of the AIHW. That section also seeks to confer on the CEO the power to do all things necessary or convenient to be done in connection with the CEO's duties, and to provide that all acts done in the name of, or on behalf of, the AIHW by the CEO shall be deemed to have been done by the AIHW. Proposed section 28 therefore appears to permit the delegation of a number of significant powers related to the administration of the AIHW to a very broad range of persons or bodies. Neither the bill nor the AIHW Act appears to limit the scope of the powers and functions that may be delegated. Further, the only restriction on the persons to whom powers and functions may be delegated is that the Board must give written approval to delegate powers and functions to persons other than AIHW staff.

1.19 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a 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 should be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are necessary should be included in the explanatory memorandum.

1.20 In this instance, the explanatory memorandum does not explain why it is necessary to provide the CEO with a broad power of delegation, including to persons or bodies outside of the Australian Public Service. It merely restates the operation and effect of the relevant provisions.

1.21 The committee requests the minister's detailed justification for permitting the CEO of the Australian Institute of Health and Welfare to delegate any or all of his or powers and functions to a member of staff of the institute or, with the permission of the Board, to any person or body.

1.22 The committee considers it may be appropriate to amend the bill to require that the CEO and/or the Board be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated, and requests the minister's advice in relation to this matter.

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[15] Schedule 1, item 25, proposed section 28. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[16] See section 19 of the Australian Institute of Health and Welfare Act 1987.