Defence Legislation Amendment Bill 2018 [2019] AUSStaCSBSD 3 (13 February 2019)

• Defence Legislation Amendment Bill 2018
• Inclusion of complaints scheme in primary legislation
• Broad delegation of administrative powers13

---

Defence Legislation Amendment Bill 2018

Purpose	This bill seeks to amend the Defence Force Discipline Act 1982 (the DFDA Act) and the Defence Reserve Service (Protection Act 2001 (the DRS(P) Act) to: • make changes to the DFDA Act in relation to the selection, remuneration and termination of members of the Judge Advocates' Panel; • move the complaint, investigation and mediation scheme from regulations into the DRS(P) Act; and • make a number of minor and technical amendments to the DFDA Act
Portfolio	Defence
Introduced	House of Representatives on 5 December 2018

Inclusion of complaints scheme in primary legislation

1.29 Schedule 2 of the bill seeks to move the complaints and mediation scheme that is currently established under the Defence Reserve Service (Protection) Regulations 2001 to the Defence Reserve Service (Protection) Act 2001. In Scrutiny Digest 5 of 2017,^[12] the committee raised concerns that as the complaints and mediation scheme was a significant matter, it was inappropriate to provide for in delegated legislation. In response the minister undertook to review moving the scheme into the principal legislation prior to the sunsetting of the regulations. Schedule 2 completes the minister's undertaking.

1.30 The committee welcomes the amendments in Schedule 2 of this bill, which move the complaints and mediation scheme which is currently in regulations, into primary legislation.

Broad delegation of administrative powers^[13]

1.31 As noted above, Schedule 2 seeks to introduce a complaints and mediation scheme. The scheme would allow the Chief of the Defence Force to deal with complaints as they see fit, including through investigations and dispute resolution processes. Item 35 of Schedule 2 seeks to insert proposed subsection 79(2), which provides that the Chief of the Defence Force may delegate all or any of their powers and functions under proposed Part 10, or proposed Divisions 1B, 1C or 3 of Part 11 to:

• an SES employee, or acting SES employee, in the department; or

• an APS employee who holds or performs the duties of an Executive Level 2 position, or an equivalent, in the department; or

• a person who holds a rank not lower than the naval rank of captain, or the rank of colonel or group captain.^[14]

1.32 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 offices or to members of the Senior Executive Service, or equivalent. Where broad delegations are provided for, the committee considers that an explanation of why these are necessary should be included in the explanatory memorandum.

1.33 In this case the explanatory memorandum states:

These are appropriate minimum levels for the powers and functions in question, noting the experience and skills of people at these levels, the history of how similar powers have been administered under the regulations, and the need for flexibility to allow the CDF to appropriately delegate the powers in the event of restructuring within Defence.^[15]

1.34 While noting this explanation, the committee does not consider administrative flexibility to be sufficient justification for enabling the delegation of the Chief of the Defence Force's powers beyond Senior Executive Service employees, particularly noting that the powers and functions that can be delegated include the power to investigate complaints, disclose information and require information to be provided.

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

---

[12] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2017, 10 May 2017, pp. 21-22.

[13] Schedule 2, item 35, proposed subsection 79(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[14] These ranks are the equivalent of an Executive Level 2 position in the APS.

[15] Explanatory memorandum, p. 25.