Defence Legislation Amendment Bill 2018 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 43 (28 March 2019)

• Defence Legislation Amendment Bill 2018
• Broad delegation of administrative powers9

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Defence Legislation Amendment Bill 2018

Purpose	This bill seeks to amend the Defence Force Discipline Act 1982 (the DFDA Act) and the Defence Reserve Service (Protection Act 2001 (the DRS(P) Act) to: • make changes to the DFDA Act in relation to the selection, remuneration and termination of members of the Judge Advocates' Panel; • move the complaint, investigation and mediation scheme from regulations into the DRS(P) Act; and • make a number of minor and technical amendments to the DFDA Act
Portfolio	Defence
Introduced	House of Representatives on 5 December 2018
Bill status	Passed both Houses on 14 February 2019

Broad delegation of administrative powers^[9]

2.27 In Scrutiny Digest 1 of 2019 the committee considered it may be appropriate to amend the bill to require that the Chief of the Defence Force be satisfied that persons performing delegated functions or exercising delegated powers have the expertise appropriate to the function or power delegated, and requested the minister's advice in relation to this matter.^[10]

Minister's response^[11]

2.28 The minister advised:

I note that the Bill has passed both Houses of Parliament. It is regrettable that the Committee's advice was not received until after the Bill was passed.^[12]
The Committee has expressed concern about the delegation provision in Item 35 of Schedule 2, which inserts new subsection 79(2), providing that the Chief of the Defence Force (CDF) may delegate all or any of their powers and functions under Part 10, or Divisions 18, 1C or 3 of Part 11. Delegates must be at or above Executive Level 2 or Colonel and equivalent ranks. The explanatory memorandum states that these are appropriate levels for the delegations, noting the experience and skills of people at these levels, the history of administration of similar powers, and the need for flexibility.
The Committee has indicated that it does not consider administrative flexibility sufficient justification for enabling delegation of these powers beyond Senior Executive Service employees, proposing amendment of the Bill to require that CDF be satisfied that persons performing delegated functions have expertise appropriate to the function or power.
I acknowledge the Committee's concerns about the delegation of administrative powers to relatively large classes of persons, and I have asked the Department to pursue further amendments when possible, as proposed by the Committee.

Committee comment

2.29 The committee thanks the minister for this response. The committee notes the minister's advice that delegates must be at or above Executive Level 2 or Colonel and equivalent ranks. The committee further notes that the minister has acknowledged the committee's concerns, and in light of the fact that the bill has already passed both Houses, has asked the Department to pursue further amendments when possible, as proposed by the committee.

2.30 The committee welcomes the minister's commitment to pursue further amendments when possible to limit the broad delegation of administrative powers.

2.31 In light of the fact that the bill has now passed both Houses of Parliament, the committee makes no further comment on this matter.

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[9] Schedule 2, item 35, proposed subsection 79(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2019, pp. 8-9.

[11] The minister responded to the committee's comments in a letter dated 28 February 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[12] The committee notes that the bill finally passed both Houses of Parliament within five sitting days of its introduction.