Norfolk Island Continued Laws Amendment (2017 Measures No 1) Ordinance 2017 [F2017L00581]-Response required [2017] AUSStaCSDLM 217 (21 June 2017)

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Instrument	Norfolk Island Continued Laws Amendment (2017 Measures No. 1) Ordinance 2017 [F2017L00581]
Purpose	Amends the Norfolk Island Continued Laws Ordinance 2015 to amend the following Norfolk Island enactments: Child Welfare Act 2009, Juries Act 1960 and Domestic Violence Act 1995
Authorising legislation	Norfolk Island Act 1979
Department	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 13 June 2017) Notice of motion to disallow currently must be given by 5 September 2017
Scrutiny principle	Standing Order 23(3)(a)

Sub-delegation

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.

With reference to the above, the committee notes that Schedule 1, item 3 of the Norfolk Island Continued Laws Amendment (2017 Measures No. 1) Ordinance 2017 [F2017L00581] (the ordinance) amends the Norfolk Island Continued Laws

Ordinance 2015, and thereby the Child Welfare Act 2009 (Norfolk Island) to allow

the Norfolk Island child welfare officer to, under section 32, delegate his or her functions to the following classes of people:

(a) a public sector employee; or

(b) an employee under the Norfolk Island Health and Residential Aged Care Service Act 1985; or

(c) a person with expertise in the provision of child welfare services who is approved, in writing, by the Commonwealth Minister; or

(d) an APS employee who holds, or is acting in, an Executive Level 2, or equivalent, position in the Department.

The ES to the ordinance states:

The amendment...expands the delegation power to allow the child welfare officer to delegate his or her functions to a person with expertise in the provision of child welfare services approved by the Minister, or an APS employee who holds or performs the duties of an EL2 position, or an equivalent or higher position, in the Department. The amendment is intended to enable the child welfare officer to access suitable expert assistance in discharging his or her functions under the Act and to enable future unknown contingencies to be addressed.

The committee notes that new subsections 32(b) through (d) appear to be appropriately limited. However, with respect to new subsection 32(a), the committee notes that 'public sector employee' is defined in the Norfolk Island Continued Laws Ordinance 2015 as 'an employee in the public service except the general manager of the Norfolk Island Regional Council', and does not appear to be otherwise limited.

The committee further notes that Schedule 1, item 10 of the ordinance amends the Norfolk Island Continued Laws Ordinance 2015, and thereby the Norfolk Island Health and Residential Aged Care Service Act 1985 (Norfolk Island) to allow the Commonwealth Minister to appoint 'a person' to act as the manager of the Norfolk Island Health and Residential Aged Care Service (NIHRACS).

The ES to the ordinance states:

Allowance for an acting position provides flexibility for situations when the NIHRACS manager is absent from duty or from Norfolk Island, or is unable to perform the duties of the office.

However, neither the instrument nor the ES sets a limit on the category of persons who can be appointed as acting manager, or provides any further information about the qualifications or attributes required of a person who acts as the manager.

The committee requests the advice of the minister in relation to the above.