Emergency Response Fund Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 118 (16 October 2019)

• Emergency Response Fund Bill 2019
• Broad discretionary powers 8
• Merits review12
• Significant matters in non-disallowable legislative instruments 15
• Broad delegation of administrative powers18

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Emergency Response Fund Bill 2019

Purpose	This bill seeks to establish the Emergency Response Fund to fund emergency response and recovery following natural disasters in Australia that have a significant or catastrophic impact
Portfolio	Finance
Introduced	House of Representatives on 11 September 2019
Bill status	Before the Senate

Broad discretionary powers ^[8]

2.28 In Scrutiny Digest 6 of 2019 the committee requested the minister's advice as to why it is considered necessary and appropriate to confer on the Emergency Management Minister a broad power to make grants of financial assistance, in the absence of clear guidance on the face of the bill as to how this power is to be exercised.

2.29 The committee also requested the minister's advice as to the appropriateness of amending the bill to include at least high-level guidance as to the terms and conditions on which financial assistance may be granted.^[9]

Minister's response^[10]

2.30 The minister advised:

The Emergency Response Fund Bill 2019 (Bill) ensures that any financial assistance provided under the Emergency Response Fund (ERF) will be subject to appropriately transparent decision-making processes.
Spending from the ERF will only be accessed as an additional source of funding for emergency response and recovery from natural disasters that have a significant or catastrophic impact on Australian communities and where the Government determines that existing programs are insufficient to meet the scale of the response required. The Bill does not provide for regular disbursements from the ERF which is consistent with the arrangements for other natural disaster recovery programs. This is due to the uncertainty of when funding will be required. Funding will only be accessed following a decision of the Government after a large scale natural disaster of national significance.
Funding from the ERF will complement existing sources of funding for emergency response and natural disaster recovery, such as the Disaster Recovery Funding Arrangements, the Australian Government Disaster Recovery Payment and the Disaster Recovery Allowance^[11]. The ERF will also complement strategic work being undertaken to reduce disaster risk, in line with the National Disaster Risk Reduction Framework.
In developing a proposal to access the ERF, the Emergency Management Minister will be informed by advice from the Director General of Emergency Management Australia. The Director General is highly qualified for this role, as the senior official responsible for coordinating Australia's responses to crises, including providing both physical and financial support to those impacted by natural disasters. The Director General will provide advice to the Emergency Management Minister on when the ERF should be accessed and the design of funding arrangements for recovery from natural disasters.
In preparing advice for the Emergency Management Minister, the Director General will rely on the Australian Government's well-established crisis management arrangements, which include whole-of-government recovery consultative committees that bring together relevant government agencies at the Commonwealth and State and Territory levels. The Director General will also consult with local governments and communities affected by the disaster or any other expert, to determine the needs of the community and identify any additional recovery assistance that would be beneficial.
All decisions of the Government to access the ERF will be published as a Budget or Mid-Year Economic and Fiscal Outlook (MYEFO) measure that outlines the purpose and amount of funding to be provided. Following a Government decision of this nature, the Emergency Management Minister may make grants or arrangements as permitted by the legislation.
The Bill provides that the Emergency Management Minister can only make arrangements or grants for specified purposes - the carrying out of a project, the provision of a service, the adoption of technology or for a matter incidental or ancillary to one of those purposes. Any grants or arrangements made must be directed towards achieving the goal of recovery from a natural disaster and/or post-disaster resilience. These requirements in the Bill ensure that the Minister can only provide funding for purposes that are directed towards achieving the intent of the legislation.
Where appropriate, ERF funding programs will have guidelines published on the Department of Home Affairs' website to ensure that applicants are treated equitably, and that funding recipients are selected based on merit addressing the program's objectives. Grant programs under the ERF will be developed in accordance with the Commonwealth Grant Rules and Guidelines 2017 (CGRG) and the requirements of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). Grant guidelines will be developed for all new grant opportunities and approved grants will be reported on the GrantConnect website no later than 21 days after the grant agreement takes effect. ERF grant administration will be conducted in a manner consistent with the CGRG's principles of:

• robust planning and design;

• collaboration and partnership;

• proportionality;

• an outcomes orientation;

• achieving value with relevant money;

• governance and accountability; and

• probity and transparency.

Procurements under the ERF will be undertaken in accordance with the Commonwealth Procurement Rules 2019 and the procurement policy framework. ERF procurements will be accountable and transparent, while meeting the core procurement principle of achieving value for money.
The terms and conditions of grants or arrangements will be set out in a written agreement between the Commonwealth and the relevant funding recipient. This approach is consistent with the CGRGs, which state that grant agreements should provide for:

• a clear understanding between the parties on required outcomes, prior to commencing payment of the grant;

• appropriate accountability for relevant money, which is informed by risk analysis;

• agreed terms and conditions in regards to the use of the grant, including any access requirements; and

• the performance information and other data that the grantee may be required to collect as well as the criteria that will be used to evaluate the grant, the grantee's compliance and performance.

The Bill also requires the Emergency Management Minister to publish detailed and up-to-date information about grants and arrangements made under the ERF on the Department of Home Affairs' website. This information, which may include amounts paid and payable to recipients as well as the names of recipients, is in addition to the reporting obligations under the CGRGs and Commonwealth Procurement Rules 2019. This information will not need to be reported for recipients that are individuals, to protect personal privacy.
I do not consider an amendment is necessary or that it would add to the effective administration of the ERF. The design of the funding arrangements will be informed by the Commonwealth's expert on natural disaster management, who will consult with appropriate stakeholders to determine the needs of the community and identify any additional recovery assistance that would be beneficial. Due to the unpredictability of the timing and scale of natural disasters, the ERF has been designed to be accessed only when the Government determines that that existing recovery programs are insufficient to meet the scale of the response required. There are sufficient reporting obligations in the Bill that, when combined with the existing requirements in existing Commonwealth legislation and frameworks, ensure that detailed information on grants and arrangements is transparently available to the general public.
I consider the Bill includes sufficient high-level guidance on the terms and conditions for financial assistance to be granted. As outlined above, financial assistance will be granted through a well-informed decision-making process. The process includes expert advice from the Director General of Emergency Management Australia, consideration through the Government's Budget process and a consistent approach for making arrangements or grants for emergency response and recovery from natural disasters.
Where appropriate, terms and conditions will be included in grant guidelines and funding agreements with recipients, rather than placing it within the primary legislation...
Scope also exists to provide grants to state and territory governments to support recovery from natural disasters and post-disaster resilience. In these scenarios, grants would be channelled through the COAG Reform Fund. Financial assistance will be paid in accordance with the terms and conditions set out in Schedule D of the Intergovernmental Agreement on Federal Financial Relations and through a written agreement between the Commonwealth and the State or Territory, which will be made publicly available on the Federal Financial Relations website.
The details of financial assistance provided from the ERF will be published on the Department of Home Affairs' website and provided in the department's annual report, providing transparency of the outcomes.

Committee comment

2.31 The committee thanks the minister for this response, and notes the minister's advice that the bill ensures that any financial assistance provided under the Emergency Response Fund (ERF) will be subject to appropriately transparent decision-making processes, and that all funding must be directed toward purposes that achieve the intent of the legislation (that is, disaster recovery and/or post-disaster resilience).

2.32 In this respect, the committee notes the minister's advice that, in developing proposals to access the ERF, the Emergency Management Minister will be informed by expert advice from the Director-General of Emergency Australia and that, in preparing this advice, the Director will rely on the Australian Government's well-established crisis management arrangements. The committee also notes the advice that the Director will consult with local governments and communities affected by the disaster, to determine needs and to identify any additional recovery assistance that would be beneficial.

2.33 The committee also notes the minister's advice that all decisions to access the ERF will be published as a Budget or Mid-Year Economic and Fiscal Outlook measure, which outlines the purpose and amount of the funding to be provided.

2.34 The committee also notes the minister's advice that the bill provides that the Emergency Management Minister may only make arrangements or grants for specified purposes: carrying out a project, providing a service, adopting a technology, or a matter incidental or ancillary to one of those purposes. This suggests that there is at least high-level guidance on the face of the bill as to the purposes for which funding may be provided.

2.35 The committee further notes the minister's advice that ERF funding programs will have published guidelines to ensure that grant applicants are treated equitably, and funding recipients will be selected on merit according to a program's objectives. The committee also notes the advice that guidelines will be developed in accordance with the Commonwealth's Grant Rules and Guidelines 2017 and the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and that all procurements under the ERF will be undertaken in accordance with the Commonwealth Procurement Rules 2019 and the procurement policy framework.

2.36 Finally, the committee notes the minister's advice that the terms and conditions applicable to grants and funding arrangements would be set out in a written agreement between the Commonwealth and the relevant funding recipient.

2.37 The committee acknowledges that funding provided in accordance with the bill would to be subject to a number of controls designed to prevent arbitrary decision-making and promote transparency. However, from a scrutiny perspective, the committee remains concerned that the bill would permit the expenditure of a substantial amount of Commonwealth money, with limited guidance on the face of the bill as to the terms and conditions on which funds may be granted. In relation to the grants of funds to a state or territory, the committee also reiterates that the Constitution confers on the Parliament the power to make such grants and to determine associated terms and conditions. Where the Parliament delegates this power, the committee considers that its exercise should be subject to at least some level of parliamentary scrutiny.

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

2.39 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of conferring on the Emergency Response Minister a broad power to make grants of financial assistance, including to the States and Territories, with only limited guidance on the face of the bill as to how the power is to be exercised.

Merits review^[12]

2.40 In Scrutiny Digest 6 of 2019 the committee requested the minister's advice as to:

• the processes by which grants would be provided, and arrangements would be entered into, in accordance with clause 20 of the bill;

• whether decisions in relation to the provision of grants and entering into arrangements would be subject to independent merits review; and

• if not, the characteristics of those decisions that would justify excluding merits review.^[13]

Minister's response

2.41 The minister advised:

As outlined above, financial assistance will be granted through well-informed decision-making processes. The process includes:

• the requirement that the Emergency Management Minister can only make grants or arrangements that are directed towards recovery from a natural disaster and/or post-disaster resilience;

• the provision of advice on the design of ERF funding programs from the Commonwealth's expert on natural disaster management in consultation with appropriate stakeholders;

• the publication of program guidelines that outline the administration of the ERF and set out high-level principles to assist the Emergency Management Minister in considering when to bring forward proposals to access the Fund;

• the publication of all decisions of the Government to access the ERF, as a Budget or MYEFO measure that outlines the purpose and amount of funding to be provided; and

• a requirement that grants or arrangements made by the Emergency Management Minister be consistent with the program of grants or arrangements agreed by the Government.

This provides a transparent and merit-based decision-making process for providing financial assistance from the ERF, to assist with emergency response and recovery from natural disasters.
Priorities may be delivered by activities supported by, but not exclusive to, a competitive merit-based grants program, discretionary grants or a procurement process, consistent with the rules relating to the Commonwealth in the PGPA Act.
Guidelines will be developed for ERF granting activities and will include detailed criteria and merit review processes where appropriate...
The general exclusion of an independent merits review process in the legislation can be justified on the basis of decisions relating to the allocation of a finite resource where not all claims can be met. Allocating resources to a merits process would be disproportionate to the significance of the decisions under review – for example, small grants programs. However, where appropriate, merits review processes will be included in grant guidelines. If funding is provided to a State or Territory to distribute, any independent merits review would be subject to the conditions and processes they impose on recipients.
I do not consider that an amendment is necessary or would contribute to the effective administration of the ERF.

Committee comment

2.42 The committee thanks the minister for this response, and notes the minister's advice regarding the process through which financial assistance from the ERF will be granted. The committee also notes the minister's advice that guidelines will be developed for ERF granting activities, and the advice that the guidelines will include merits review processes where appropriate.

2.43 In relation to the general exclusion of independent merits review in relation to ERF grant decisions, the committee notes the minister's advice that the exclusion can be justified on the basis that the decisions involve the allocation of finite resources in circumstances when not all claims can be met. The committee also notes the advice that allocating resources to a review process in these circumstances would be disproportionate to the significance of the decisions under review. The committee notes that these matters appear to reflect established grounds for excluding merits review.^[14]

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

2.45 In light of the information provided by the minister, the committee makes no further comment on this matter.

Significant matters in non-disallowable legislative instruments ^[15]

2.46 In Scrutiny Digest 6 of 2019 the committee requested the minister's more detailed advice as to:

• why it is considered appropriate to leave significant elements of the disaster relief and post-disaster resilience scheme proposed by the bill to delegated legislation; and

• why directions making up the Emergency Response Fund Investment Mandate would not be subject to disallowance or to sunsetting.

2.47 The committee also requests the minister's advice as to the appropriateness of amending the bill to provide that the directions making up the Emergency Response Fund Investment Mandate are subject to disallowance but only come into force once the disallowance period has expired, unless the minister certifies that there is an urgent need to make changes and it is in the national interest that a specified direction not be subject to disallowance.^[16]

Minister's response

2.48 The minister advised:

The Bill provides for certain functions to be carried out through delegated legislation, including:

• declarations made by the Prime Minister nominating the Emergency Management Minister for the purposes of the Act (clause 4 of the Bill);

• crediting determinations by the responsible Ministers regarding amounts to be credited into the Emergency Response Fund Special Account (clause 13 of the Bill);

• transfers by the Emergency Management Minister of excess amounts in the Home Affairs Emergency Response Fund Special Account back to the Emergency Response Fund Special Account ( clause 31 of the Bill); and

• any rules made by the Finance Minister as permitted under the Bill (clause 64 of the Bill).

These functions are administrative in nature and do not represent significant elements of the legislative framework for the ERF. Consistent with the arrangements for other Commonwealth Investment Funds, providing for these functions to be carried out through delegated legislation allows for a simpler, more practical and more efficient administration of the ERF.
Investment Mandate
The investment mandate is a direction by the Treasurer and the Minister for Finance, as the responsible Ministers under the Bill, to the Future Fund Board of Guardians (Future Fund Board).
The ERF is intended to be a long-term investment that will provide an additional source of sustainable funding for recovery and post-disaster resilience following a natural disaster that has a significant or catastrophic impact in Australia. Similar to the other long-term Commonwealth Investment Funds (including the Future Fund, the Medical Research Future Fund and the Future Drought Fund), it is expected that the investment mandate will set a long-term target rate of return. In these cases it is envisaged that investment mandates would only be reissued if there was a significant change in Government policy or a structural change in the investment landscape.
In setting the investment mandates for the different investment funds, responsible Ministers need to ensure that:

• targeted returns are consistent with the policy intent (including consideration of the intended cash flows from the fund and growth of the underlying capital);

• resultant risks are aligned with the targeted returns, are reasonable and within tolerances; and

• the mandate is informed by appropriate and expert advice and set with regard to current and expected economic and financial market conditions.

Exemption from disallowance
As a direction from the Treasurer and the Minister for Finance to a body (the Future Fund Board), investment mandates are exempt from disallowance under item 2 of the table at section 9 of the 5 Legislation (Exemption and other Matters) Regulation 2015, which provides that a class of instruments not subject to disallowance is 'an instrument that is a direction by a Minister to any person or body'.
This is consistent with the long-standing and established operational arrangements for other funds currently managed by the Future Fund Board, and is appropriate in the case of the investment mandate. The investment mandate provides direction to the Future Fund Board in relation to the performance of its investment functions, and will include the setting of a benchmark rate of return and an acceptable level of risk that is aligned with the purpose of the ERF.
This process for setting investment mandates provides the Board with an appropriate level of operational certainty in managing their investments on behalf of the Government over the long term. It also allows the Government to issue updated directions to the Future Fund Board through new investment mandates when appropriate.
Although investment mandates are exempt from disallowance, the Bill provides for appropriate parliamentary and public scrutiny. The Bill requires that, prior to issuing the investment mandate, the responsible Ministers must consult the Future Fund Board (section 42(1) refers). If the Future Fund Board chooses to make a submission regarding the draft investment mandate, this submission must be tabled in both houses of Parliament (s 42(2) refers). This requirement ensures that Parliament is informed of any matters raised by the Future Fund Board with respect to proposed investment mandates.
Additionally, the Future Fund Management Agency provides annual and quarterly performance reports, including comparisons against the benchmark rates specified in the Fund investment mandates.
Exemption from sunsetting
It is not appropriate that the ERF investment mandate be subject to sunsetting due to the long-term nature of the fund's investments (refer to above comments). The investment mandates for Commonwealth Investment Funds are rarely reissued. For example, previous investment mandates for the Building Australia Fund and the Future Fund were in place for around 10 years. The investment mandate for the Education Investment Fund has been in place since 2009 and the investment mandates for the Disability Care Australia Fund and the Medical Research Future Fund have been in place since inception (2013 and 2015 respectively).
On this basis, and consistent with all of the Commonwealth Investment Fund investment mandates, I do not believe that it would be appropriate to make the ERF investment mandate subject to disallowance or sunsetting.

Committee comment

2.49 The committee thanks the minister for this response, and notes the minister's view that it would not be appropriate to make the Investment Mandate subject to disallowance or sunsetting. In this respect, the committee notes the minister's advice that this approach is consistent with longstanding and established operational arrangements for other funds currently managed by the Future Fund Board (FFB). The committee also notes the advice that the process for setting the Investment Mandate provides the FFB with an appropriate level of operational certainty in managing its investments, and allows the government to issue updated directions to the FFB as appropriate.

2.50 The committee further notes the minister's advice that the bill provides for appropriate parliamentary and public scrutiny of the Investment Mandate. In this respect, the committee notes the advice that the bill would require the responsible ministers to consult the FFB before issuing the Investment Mandate, and that any submission by the FFB on the draft Mandate must be tabled in both Houses of Parliament. The committee also notes the advice that the Future Fund Management Agency provides annual and quarterly performance reports, including comparisons against benchmark rates specified in the Mandate.

2.51 Finally, the committee notes the minister's advice that it is not appropriate for the Investment Mandate to be subject to sunsetting, due to the long-term nature of the fund's investments. The committee also notes the advice that this approach is consistent with mandates for other Commonwealth investment funds.

2.52 The committee acknowledges the importance of ensuring certainty in long-term investment activities. However, as outlined in its initial comments, the committee does not generally consider operational certainty, or consistency with arrangements for other Commonwealth investment funds, as sufficient justification for leaving significant elements of schemes, such as the emergency response fund scheme, to non-disallowable legislative instruments. Indeed, the committee has stated on a number of occasions that such matters should be included in primary legislation, or at least in delegated legislation that is subject to disallowance.^[17]

2.53 From a scrutiny perspective, the committee also considers that the proposed level of parliamentary oversight may not be sufficient. In this respect, the committee reiterates that disallowance and sunsetting are the primary means by which the Parliament exercises control over delegated legislation. As set out in its initial comments, the committee does not consider consultation with the Board, on its own, to be an adequate substitute for parliamentary disallowance, particularly noting that the Board is the entity to which the Investment Mandate would be issued.

2.54 Finally, it remains unclear to the committee how providing that the Investment Mandate would be subject to disallowance would undermine operational certainty. In this respect, the committee reiterates that there may be methods available to deliver transparency and certainty in relation to investment decisions, and maintain the independence of the FRB, while still delivering an appropriate level of parliamentary oversight. For example, the committee considers that certainty may be delivered by providing that the relevant instruments do not come into force until after the applicable disallowance period has expired. Moreover, and as outlined in the committee's initial comments, it may be possible to provide that the instruments are generally disallowable, with an exception provided for emergency circumstances.

2.55 The committee considers that it may be appropriate for the bill to be amended to provide that directions forming part of the Investment Mandate for the Emergency Response Fund (ERF) be subject to disallowance and sunsetting.

2.56 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness leaving significant elements of the ERF scheme to legislative instruments that are not subject to disallowance or to sunsetting.

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

Broad delegation of administrative powers^[18]

2.58 In Scrutiny Digest 6 of 2019 the committee requested the minister's advice as to why it is considered necessary and appropriate to permit the Emergency Management Minister to delegate their powers to any official of a Commonwealth entity.

2.59 The committee also requested the minister's advice as to the appropriateness of amending the bill to restrict the delegation of the Emergency Management Minister's powers to members of the Senior Executive Service, consistent with other powers of delegation in the bill.^[19]

Minister's response

2.60 The minister advised:

The Bill needs to be read in conjunction with the primary legislation governing the operation of all Commonwealth entities: the PGPA Act.
The PGPA Act imposes general duties on all accountable authorities of Commonwealth entities (at sections 15 to 19) including, inter alia, a duty to govern their entity in a way that promotes the proper use (efficient, effective, economical and ethical use) of public resources. Integral to that is the duty to establish and maintain systems relating to risk and control (section 16), including measures directed at ensuring that the officials of the entity comply with the finance law.
To give effect to their duties, accountable authorities are generally expected to implement:

• delegation and decision-making processes for the proper use of public resources, including robust decision-making and control processes for the expenditure of relevant money. For example,

- decision-making processes could be supported by requirements on the type of information that officials need to consider before making a spending decision; and

- delegation processes could be limited to particular persons or positions with particular skills and roles (financial transaction limits could be part of those system of delegation).

• appropriate oversight and reporting arrangements for activities and projects, and to address the inappropriate use of resources by officials, or the failure by officials to comply with applicable laws or Commonwealth policies.

These processes are designed to provide an appropriate level of assurance in accordance with the accountable authorities' duty to establish and maintain systems in relation to risk and control in section 16 of the PGPA Act.
The PGPA Act provides an express power of delegation to accountable authorities for reasons of practical necessity, administrative efficiency and operational efficacy. The PGPA Act requirement that the delegation is in writing ensures clarity and accountability for decision-making. Management of delegated power by delegators is crucial to the legitimacy and appropriateness of the exercise of delegated power. The accountable authority of an entity may also, by written instrument, give instructions to officials of other entities where these officials are approving the commitment of relevant money or dealing with public resources for which the accountable authority is responsible (section 22 of the PGPA Act).
When delegating PGPA Act powers accountable authorities must bear in mind their duties under the PGPA Act at sections 15 to 19, including their duty to govern their entity in a way that promotes the proper use of public resources. To give effect to this, an accountable authority may accompany their delegations of power with directions to delegates. Directions enable the accountable authority to instruct the delegate to exercise the delegated power within specified parameters. This not only allows the accountable authority to control how the delegated power is exercised consistent with the statutory requirement to promote the proper use of resources, but also allows the accountable authority to set limits on the power the delegate may exercise.
Delegates, who are officials under the PGPA Act, should understand the nature and scope of the power they have been delegated. This is reinforced through the application of the duties of officials at sections 25 to 29 of the PGPA Act, which, inter alia, requires them to exercise powers with care and diligence, honestly, in good faith and for a proper purpose.
Emergency Management Australia within the Department of Home Affairs may utilise a Commonwealth Grants Hub, through a contract arrangement, to make payments to grant recipients. Grants Hub staff will also be officials under the PGPA Act and subject to the responsibilities outlined above.
The provisions of the PGPA Act endure and there is no need or intention to introduce duplicative statutory requirements. The governance outcomes sought by the Committee are already factors implemented under the PGPA Act – see response above.

Committee comment

2.61 The committee thanks the minister for this response. The committee notes the minister's advice that Emergency Management Australia within the Department of Home Affairs may use the Community Grants Hub to make payments to grant recipients. This indicates that the Emergency Management Minister may delegate powers and functions to staff administering the Grants Hub. In this regard, the committee notes the minister's advice that Grants Hub staff would be 'officials' under the PGPA Act, and subject to the duties set out therein. The committee also notes the advice that the PGPA Act requires delegates to exercise their powers with care, diligence, honesty, in good faith and for a proper purpose.

2.62 The committee further notes the minister's advice that accountable authorities under the PGPA Act are expected to implement appropriate decision-making, delegation and oversight processes, including ensuring that delegates possess expertise appropriate to the delegated functions and powers.

2.63 However, while the committee acknowledges that delegates, as 'officials' under the PGPA Act, would be subject to a number of relevant duties, it remains concerned that the bill does not appear to limit the delegation of the Emergency Management Minister's powers to staff at a particular level, or require the minister to be satisfied that delegates possess expertise appropriate to the relevant delegation.

2.64 It is also unclear to the committee that such requirements would be duplicative of the PGPA Act, or inconsistent with the other powers of delegation set out in the bill. In this respect, the committee notes that the Emergency Management Minister does not appear to be captured by the definition of 'accountable authority' in the PGPA Act^[20] (and may therefore not be subject to the corresponding duties under the PGPA Act). Further, the bill would restrict any delegations made by the Treasurer and the Finance Minister to heads of departments and members of the Senior Executive Service.

2.65 The committee considers that it may be appropriate for the bill to be amended to, at a minimum, require that persons exercising delegated powers possess the expertise appropriate to the relevant delegation.

2.66 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing the Emergency Management Minister to delegate functions and powers to any official of a Commonwealth entity.

2.1

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[8] Clauses 20 and 21. The committee draws senators’ attention to these provisions pursuant to Senate Standing Orders 24(1)(a)(iv) and (v).

[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2019, pp. 6-7.

[10] The minister responded to the committee's comments in a letter dated 1 October 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[11] https://www.disasterassist.gov.au/Pages/disaster-arrangements.aspx

[12] Clause 20. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[13] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2019, pp. 7-8.

[14] See Attorney-General's Department, Administrative Review Council, What decisions should be subject to merit review? (1999), [4.11]-[4.19]; [4.56]-[4.57].

[15] Clause 39. The committee draws senators’ attention to this provision pursuant to Senate Standing Orders 24(1)(a)(iv) and (v).

[16] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2019, pp. 8-10.

[17] The committee has also made such statements in relation to the mandates for other Commonwealth investment funds. See, for example, Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2017, pp. 37-38; Scrutiny Digest 8 of 2017, pp. 142-147, in relation to the Regional Investment Corporation Bill 2017. See also Scrutiny Digest 15 of 2018,

pp. 14-16; Scrutiny Digest 1 of 2019, pp. 42-45, in relation to the Future Drought Fund Bill 2018.

[18] Proposed paragraph 61(1)(c). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[19] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2019, pp. 10-11.

[20] Section 12 of the PGPA Act provides that 'accountable authority' refers to the secretary of a government department, a person prescribed as an accountable authority by Commonwealth legislation, or the governing body of a Commonwealth corporate entity.