Treatment Benefits (Special Access) Bill 2019 [2019] AUSStaCSBSD 39 (28 March 2019)

• Treatment Benefits (Special Access) Bill 2019
• Broad delegation of administration powers189

---

Treatment Benefits (Special Access) Bill 2019

Purpose	This bill seeks to provide eligible members of the Civilian Surgical and Medical teams who worked in South Vietnam under the Southeast Asia Treaty Organization aid program access to medical treatment through a DVA Gold Card
Portfolio	Veterans' Affairs
Introduced	House of Representatives on 14 February 2019

Broad delegation of administration powers^[189]

1.248 Division 2 of the bill deals with administrative and enforcement matters related to the treatment for eligible Australian citizens, including the delegation of the Repatriation Commission's functions and powers. Clause 42 provides that the Commission may, by resolution, delegate any of its functions or powers under the provision of this Act, or under the rules or any other legislative instrument made under this Act to:

(a) a member of the Commission; or

(b) a staff member assisting the Commission; or

(c) a consultant to, or an employee of a consultant to, the Commission; or

(d) a person who is engaged under the Public Service Act 1999 and performing duties in the Department.

1.249 As such, the bill would allow the Commission to delegate all of its significant functions or powers to any level staff member or public servant or to persons outside the public service who have been engaged as consultants. 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. 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.

1.250 In this instance, the explanatory memorandum states that clause 42 largely replicates subsection 32(1) of the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006, and results in administrative efficiencies and the proper performance of its functions and the exercise of its powers.^[190]

1.251 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.

1.252 The explanatory memorandum further states that the appropriate qualifications or attributes which may be required and any limitations on the exercise of that power will be determined as part of the normal duties of the position held by that person and may be imposed administratively on the exercise of the delegation held by the person.^[191]

1.253 Although the committee notes that some guidance is provided in the explanatory memorandum around when the Commission's functions and powers would be delegated, it remains concerned that the proposed limitations on the exercise of the power is not reflected on the face of the bill.

1.254 The committee notes its scrutiny concerns regarding allowing the Repatriation Commission to delegate any of its functions and powers to a broad range of persons. The committee considers that the explanatory materials do not adequately address these concerns and draws this to the attention of senators and leaves it to the Senate.

---

[189] Clause 42. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[190] Explanatory memorandum p. 18.

[191] Explanatory memorandum p. 19.