Norfolk Island Customs Ordinance 2016 [F2016L00736]-Concluded matters [2016] AUSStaCSDLM 270 (12 October 2016)

Instrument	Norfolk Island Customs Ordinance 2016 [F2016L00736]
Purpose	Applies the Customs Act 1901, the Customs Regulation 2015 and the Customs (International Obligations) Regulation 2015 in Norfolk Island, as modified by the Norfolk Island Customs Ordinance 2016
Last day to disallow	21 November 2016
Authorising legislation	Norfolk Island Act 1979
Department	Infrastructure and Regional Development
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 6 of 2016

Sub-delegation

The committee commented as follows:

Section 9 of the Norfolk Island Customs Ordinance 2016 [F2016L00736] (the ordinance) provides that the Comptroller-General of Customs may delegate any of their functions or powers under an applied customs law (other than section 179 of the Customs Act 1901 (NI)) to the secretary of the relevant department or to 'another officer of Customs'. Subsection 9(3) of the ordinance further provides that the secretary may sub-delegate powers delegated by the Comptroller-General of Customs to 'another officer of Customs'.

The ordinance defines an 'officer of Customs' as an officer within the meaning of the Customs Act 1901, which provides a very broad definition of the term.^[1]

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which 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, a limit should be set on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

In this respect, the ES for the ordinance provides no justification for the broad delegation and sub-delegation of the Comptroller-General of Customs' powers under the ordinance to an 'officer of Customs'.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Local Government and Territories advised:

From 1 July 2016, the Department of Immigration and Border Protection (DIBP) administers customs arrangements for Norfolk Island, replacing the previous arrangements administered by the former Administration of Norfolk Island under the Customs Act 1913 (NI) and Customs Regulations 1986. As the agency responsible for administration of customs functions, DIBP modified the application of the Customs Act 1901 (Cth) to reflect the unique circumstances of Norfolk Island.
I note the Senate Standing Committee on Regulations and Ordinances' expectations in relation to the delegation and sub-delegation of the Comptroller-General of Customs' powers under the Ordinance to 'an officer of Customs'.
In response to the matters raised by the Committee, DIBP has advised the approach to delegations in the Customs Act 1901 (NI) mirrors the approach taken to delegations in the Customs Act 1901 (Cth). The large number and variety of powers in the Customs Act 1901 (NI) means their delegation to only nominated officers or members of the senior executive service (in accordance with the Committee's expectations) would not be practical from an operational perspective.
The operational considerations include the small population and remote location of Norfolk Island. A small number of DIBP staff are posted to Norfolk Island to operate the customs service for the territory and these staff are not senior executive staff and may not be holders of nominated offices. This practical constraint on the operational environment requires a sub-delegation to a broad category of officers.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

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[1] See Customs Act 1901, s 4.