Defence, Veterans' and Families' Acute Support Package Bill 2022 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 77 (28 September 2022)

• Chapter 2
• Commentary on ministerial responses
• Defence, Veterans' and Families' Acute Support Package Bill 2022
• Broad delegation of administrative functions or powers1

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Defence, Veterans' and Families' Acute Support Package Bill 2022

Purpose	This bill seeks to amend the Veterans' Entitlements Act 1986, Military Rehabilitation and Compensation Act 2004 and Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 to extend eligibility to veterans and their family members covered by the three Acts, who are at risk of or in crisis, whether or not the veteran is participating in a rehabilitation program or has rendered warlike service.
Portfolio	Veterans' Affairs
Introduced	House of Representatives on 3 August 2022
Bill status	Before Senate

Broad delegation of administrative functions or powers^[1]

2.2 Item 14 of Schedule 1 to the bill seeks to insert proposed subsection 152(1A) into the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. Proposed subsection 152(1A) empowers the Military Rehabilitation and Compensation Commission (the Commission) to, by resolution, delegate any of its functions or powers under an acute support package instrument to a member of the Commission, a person assisting a member, a consultant, a public servant or a Defence Force member whose duties relate to matters to which the provision relates.^[2]

2.3 In Scrutiny Digest 4 of 2022, the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to empower the Commission to delegate any or all of its functions or powers to such a broad class of people; and

• whether the bill can be amended to provide some legislative guidance as to the scope of powers that might be delegated and to limit the categories of people to whom those powers might be delegated.^[3]

Minister's response^[4]

2.4 The minister advised that enabling the Commission to delegate its functions or powers to a broad class of people is appropriate and necessary to meet the intent of the Acute Support Program, which is to support vulnerable veteran families. The minister further advised that delegating powers to non-Senior Executive Service officers is necessary to meet the needs of families at risk of, or in, crisis. To this end, the minister advised that the delegation of powers allows for operational and administrative flexibility, so that decisions to grant support under the Acute Support Program are made in a timely fashion.

2.5 The minister also advised that delegates will have the necessary experience to exercise decision-making powers and that all delegates will be provided with policy and procedural guides to assist in appropriate decision-making. Delegates will also be required to comply with any written directions given by the Department of Veterans' Affairs, for example, under the Accountable Authority Instructions.

2.6 Finally, the minister acknowledged the committee's concerns in relation to consultants exercising delegated powers, but stated that any consultants thus engaged would be chosen based on particular expert knowledge.

Committee comment

2.7 The committee thanks the minister for this response.

2.8 The committee welcomes the minister's advice that delegates will be chosen based on particular expertise. However, it remains unclear to the committee why the bill cannot be amended to include this requirement. The committee considers that future bills should include a requirement that delegates be confined to nominated office holders or to members of the Senior Executive Service or, if this is not possible, that delegates possess the appropriate training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions.

2.9 The committee also welcomes the minister's advice that delegates will be provided with policy and procedural guidance to assist in appropriate decision-making. The committee considers that it would have been useful had this information been included in the explanatory memorandum for the bill, together with further high-level information as to the content of the relevant policy and procedural documents.

2.10 The committee acknowledges that it may sometimes be both appropriate and necessary to delegate administrative functions and powers to persons below the Senior Executive Service level. However, in this instance, it remains unclear why it is necessary to delegate any or all of the Commission's functions or powers with no legislative limits or guidance on what these functions or powers may be or when it is appropriate to delegate them. It is also remains unclear why it is necessary to delegate functions or powers to a broad class of people with no accompanying legislative requirement that delegates have the appropriate expertise. The committee considers that it is possible to provide for delegation powers which allow the necessary administrative flexibility to deal with urgent matters of policy while still providing appropriate limits on the exercise of the power.

2.11 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials 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).

2.12 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of delegating any or all of the Military Rehabilitation and Compensation Commission's powers to a broad class of people with no accompanying legislative requirement that delegates have the appropriate training, qualifications, skills or experience.

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[1] Schedule 1, item 14. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[2] Acute support package instruments are legislative instruments made by the Commission under proposed section 41B of the bill. Persons to whom functions or powers may be delegated are set out in section 384 of the Military Rehabilitation and Compensation Act 2004.

[3] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2022, 7 September 2022, pp. 10–11.

[4] The minister responded to the committee's comments in a letter dated 27 September 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2022.