Marine Safety (Domestic Commercial Vessel) Levy Collection Bill 2018 [2018] AUSStaCSBSD 58 (21 March 2018)

• Marine Safety (Domestic Commercial Vessel) Levy Collection Bill 2018
• Broad delegation of administrative powers 30

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Marine Safety (Domestic Commercial Vessel) Levy Collection Bill 2018

Purpose	This bill seeks to define when and how the levy on domestic commercial vessels is payable, and authorises the minister to make rules concerning prescribed matters
Portfolio	Infrastructure and Transport
Introduced	House of Representatives on 28 February 2018

Broad delegation of administrative powers ^[30]

1.37 Subclause 19(1) of the bill provides that section 58 of the Australian Maritime Safety Authority Act 1990 (AMSA Act) applies to a power conferred on the Australian Maritime Safety Authority (AMSA) by the legislative rules^[31] in the same way in which it applies to a power conferred on AMSA by the bill. Subclause 19(2) would restrict the persons to whom AMSA may delegate powers under the bill or under the legislative rules to members of AMSA's staff.

1.38 Section 58 of the AMSA Act confers a very broad power of delegation on AMSA. The section permits AMSA, by written instrument, to delegate any or all of its powers under the AMSA Act, or any other Act, to any person. Subsection 58(2) of the AMSA Act then provides that certain powers may only be delegated to a member or officer of AMSA. The effect of clause 19 of the bill would therefore be to permit AMSA to delegate any of its powers under the legislative rules to any member of the staff of AMSA (which may be any APS-level employee).

1.39 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 on either 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 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. In this instance, the explanatory memorandum states:

AMSA requires this ability to delegate within the limits of its workforce to be able to operate effectively and deliver services to the 27,000 domestic and commercial vessels around and across Australia.
Powers are expected to be delegated appropriately to specific, expert offices within AMSA through an instrument of delegation signed by AMSA's Chief Executive Officer. For example, the power to detail a vessel is expected to be delegated to marine safety inspectors, while the power to make written assessments of amounts of levy payable and the power to refund an amount of levy are expected to be delegated to administrative officers.
Additionally, the Chief Executive Officer's delegation instrument is expected to: set minimum qualifications, training and experience requirements for delegates specific to each power and function; set conditions and requirements to be satisfied by a delegate when exercising a power; and be supported by AMSA's governance policies and processes to ensure delegates understand how to exercise powers appropriately and consistently.^[32]

1.40 The committee notes the explanation in the explanatory memorandum as to why a broad power of delegation is required, and as to how it is anticipated this power would be exercised. However, the committee remains concerned that there is nothing on the face of the bill that would limit the scope of the powers that may be delegated, nor is there anything in the bill that would require persons exercising powers under delegation to be confined to persons to a particular APS level (or equivalent), or to persons holding particular qualifications, attributes or expertise.

1.41 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of permitting AMSA to delegate powers conferred on AMSA by the legislative rules to any member of AMSA's staff, without any statutory requirement that a delegate hold special qualifications, attributes or expertise.

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[30] Clause 19. The committee draws Senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[31] Clause 20 of the bill would permit the minister, by legislative instrument, to make rules (legislative rules) prescribing matters required or permitted by the bill to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the bill. Subclause 20(4) provides that the legislative rules may make provision with respect to a matter by conferring a power on AMSA.

[32] Explanatory memorandum, p. 16.