Staffing and Delegations Rule 2014 [F2014L01296]-Continuing matters [2015] AUSStaCSDLM 54 (25 March 2015)

• Staffing and Delegations Rule 2014 [F2014L01296]

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Continuing matters

Staffing and Delegations Rule 2014 [F2014L01296]

Purpose	Provides for the National Capital Authority (NCA) Chief Executive to delegate functions and powers under the Ordinance to officers and employees of the NCA and any person whose services have been made available for the purposes of the Ordinance
Last day to disallow[1]	4 December 2014
Authorising legislation	National Land (Road Transport) Ordinance 2014
Department	Infrastructure and Regional Development

[The committee first reported on this instrument in Delegated legislation monitor No. 14 of 2014; and subsequently in Delegated legislation monitor No. 1 of 2015]

Issue:

Delegation of power to a 'person'

Section 3 of the rule provides:

The National Capital Authority (NCA) Chief Executive may arrange with a person for the services of officers or employees of the person to be made available for the purposes of the Ordinance.

Section 4 of the rule provides:

The NCA Chief Executive may delegate all or any functions and powers under the Ordinance to:
(a) an officer or employee of the NCA established under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth); or
(b) a person whose services have been made available under section 3 of this rule.

The ES notes:

The Staffing and Delegations Rule 2014 makes provision for the NCA Chief Executive to make arrangements with a person to be made available for the purposes of the Ordinance. The Rule also provides for the NCA Chief Executive to delegate functions and powers under the Ordinance to officers and employees of the NCA and any person whose services have been made available for the purposes of the Ordinance.

The committee notes that neither the rule nor the ES specify limitations on either the powers that can be delegated or the persons to whom the powers can be delegated. In this regard, the committee also notes that the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the scrutiny committees prefer to see a limit set either on the sorts of powers that might be delegated or on the categories of people to whom those powers may be delegated. The committees' preference is that delegates be confined to the holders of nominated offices or to members of the senior executive service.

[The committee therefore requested the assistant minister's advice on this matter].

MINISTER'S RESPONSE:

The Assistant Minister for Infrastructure and Regional Development advised:

The Rule was established to permit the Chief Executive of the National Capital Authority (NCA), acting in their capacity as an Administering Authority of the ACT road transport legislation, as modified by the Ordinance, to delegate administrative and decision making powers to a person made available for the purposes of the Ordinance. This includes NCA contractors providing services to support pay parking on National Land.
The intention of the Rule is to provide a mechanism for the Chief Executive to delegate specific powers to provide for effective administration of infringement notices issued by the Australian Government. The Rule is self limiting and only applies to powers available for the purposes of the Ordinance. The Ordinance only applies to sections of the ACT road transport legislation, specifically relevant to the operation of a pay parking scheme.
Powers are only delegated to persons that have a direct requirement to make administrative decisions related to pay parking. These powers are detailed in an Instrument of Delegation signed by the Chief Executive of the NCA and is applied to a specific position title, or position number.
There are strict processes for staff that have been delegated responsibilities by the Rule. They are comprehensively vetted, are required to exercise their delegated power in accordance with the ACT road transport legislation, and only operate in line with decision making guidelines approved by the Chief Executive of the NCA.

COMMITTEE RESPONSE:

[The committee thanked the assistant minister for his response and concluded its examination of this matter in Delegated legislation monitor No. 1 of 2015].

Issue:

Limb of the rule-making power being relied on

The rule is made under section 11 of the National Land (Road Transport) Ordinance 2014 which provides:

The Minister may make rules prescribing matters:
(a) required or permitted by this Ordinance to be prescribed by rule; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Ordinance.

With regard to the delegation of power to a person (referred to above), a question arises as to whether the rule relies on the 'required or permitted' or the 'necessary or convenient' limb of the power.

[The committee therefore requested the minister's advice on this matter].

COMMITTEE RESPONSE:

[The committee noted this issue was not specifically addressed in the minister's response and therefore requested the minister's advice on this matter].

MINISTER'S RESPONSE:

The Assistant Minister for Infrastructure and Regional Development advised:

I can delegate general power to make Rules authorised by provisions of the National Land (Road Transport) Ordinance 2014 (the Ordinance). The Chief Executive of the National Capital Authority (NCA) may only authorise people in accordance with the Ordinance.
The Rules I can create must be in respect to Section 11 - Rule making power of the Ordinance. The Chief Executive is only permitted to authorise people in accordance with Section 10 - Authorised people of the Ordinance.
Staffing and Delegations Rule 2014 [F2014L01269] relies upon section 11 (a), which provides that the Minister may make rules prescribing matters 'required or permitted' by the Ordinance.
The 'required or permitted' instrument-making power gives me no power to make Rules beyond that authorised by the other provisions of the Ordinance. It provides an administrative efficiency for exercising powers under the Ordinance.

COMMITTEE RESPONSE:

The committee thanks the assistant minister for his response.

However, the committee's understanding is that the 'required or permitted' limb of the general power operates in conjunction with certain provisions in the enabling Act or, in this case, the Ordinance. The committee therefore requests the minister's advice as to the specific provision(s) in the Ordinance that operate in conjunction with the 'required or permitted' limb of the general power to provide for the matters prescribed by the rule. The committee therefore requests the minister's further advice on this matter.

Issue:

Potential delegation of general rule-making power

As noted above, the rule provides for the Chief Executive of the NCA to 'delegate all or any functions and powers under the Ordinance' (rather than, for example, all or any of the Chief Executive's functions and powers under the ordinance). It is therefore unclear on the face of the rule whether there is any limit on the Chief Executive's power to delegate under the ordinance. One of the powers under the ordinance is the general rule-making power in section 11 (attached to the minister). Noting the committee's previous inquiries regarding the implications of the new general rule-making power for executive exercise and oversight of Parliament's delegated legislative powers (see comments on the Australian Jobs (Australian Industry Participation) Rule 2014 [F2014L00125] and the Farm Household Support Secretary's Rule 2014 [F2014L00614]), a question arises as to whether the Chief Executive of the NCA is able to delegate the general rule-making power, and, if so, what considerations might apply in that case.

[The committee therefore requested the minister's advice on this matter].

MINISTER'S RESPONSE:

The Assistant Minister for Infrastructure and Regional Development advised that 'the rule making powers are only able to be exercised by the Responsible Minister. The Rule cannot be used to delegate Ministerial responsibility'.

COMMITTEE RESPONSE:

[The committee thanked the assistant minister for his response and concluded its examination of this matter in Delegated legislation monitor No. 1 of 2015].

However, the committee considers that the assistant minister's advice that he 'can delegate [the] general power to make Rules authorised by provisions of the National Land (Road Transport) Ordinance 2014' (see response above in relation to the issue 'Limb of the rule-making power being relied on') casts doubt on his previous advice that 'the rule making powers are only able to be exercised by the Responsible Minister. The Rule cannot be used to delegate Ministerial responsibility'.

With reference to the most recent response, the extent to which the minister can delegate the general power to make rules is unclear. The committee notes its previous inquiries regarding the implications of the new general rule-making power for executive exercise and oversight of Parliament's delegated legislative powers (see comments on the Implementation of a general instrument-making power in Delegated legislation monitor No. 17 of 2014).^[2] The committee also notes that Drafting Direction 3.8 states that 'as a general rule, a general instrument-making power of a person should not be able to be delegated'.^[3] A question therefore arises about the extent to which the minister is able to delegate the general power to make rules and the extent to which that power is consistent with Drafting Direction 3.8. The committee therefore requests the minister's further advice on this matter.

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^[1] 'Last day to disallow' refers to the last day on which notice may be given of a motion for disallowance in the Senate.

^[2] Senate Standing Committee on Regulations and Ordinances, Delegated legislation monitor No. 17 of 2014 (3 December 2014) 6–24.

^[3] Office of Parliamentary Counsel, Drafting Direction 3.8 (December 2014) 6