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Monday, 9 May 1994
Page: 419


Senator COLSTON —On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw Business of the Senate Notices of Motion Nos 3, 4, 5 and 6 standing in my name for five sitting days after today. I seek leave to make a short statement.

  Leave granted.


Senator COLSTON —I thank the Senate. On 14 March 1994, I reported to the Senate on the committee's concerns with these instruments which related to invalid subdelegations and discretions not subject to review. The ministers have now provided the committee with information which meets our concerns. The committee is grateful for this cooperation. As usual, I seek leave to incorporate the committee's correspondence in Hansard.

  Leave granted.

  The correspondence read as follows—

Senator the Hon Bob Collins

Minister for Primary Industries and Energy

Parliament House

CANBERRA ACT 2600

3 March 1994

Dear Minister

I refer to the Schedule D Application of Agreement to Queensland of the Murray-Darling Basin Act 1993, considered by the Committee at its meeting of 3 March 1994.

The Committee is concerned that the instrument may invalidly subdelegate powers to the Ministerial Council and the Commission. Thus, clauses 2(c), 3(2), 3(4)(b)(ii), 4(1) and 4(2) confer on these bodies powers which may not be authorized by the parent Act. The Committee would be grateful if you could arrange for the Office of General Counsel of the Attorney-General's Department to advise on the validity of the apparent subdelegations.

Yours sincerely

Mal Colston

Chairman

Senator Mal Colston

Chairman

Senate Standing Committee

Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

8 April 1994

Dear Mal,

Thank you for your letter dated 3 March 1994 concerning Schedule D (Application of Agreement to Queensland) of the Murray-Darling Basin Act 1993.

The concerns you raised have been considered by the Office of General Counsel which has provided advice to the effect that, assuming Schedule D has been approved by the Murray-Darling Basin Ministerial Council, the Schedule constitutes a valid amendment of the Murray-Darling Basin Agreement and is not inconsistent with the Act.

In view of this advice and as Schedule D was approved out-of session by the Ministerial Council on 13 December 1993 it would appear that Schedule D constitutes a valid amendment to the Agreement.

I have enclosed a full copy of the advice which I hope your Committee will find useful in its further deliberations on this matter.

Your sincerely

Bob Collins

24 March 1994

Mr Craig Bradley

Land Resources Division

Department of Primary Industries and Energy

GPO Box 858

CANBERRA ACT 2601

Dear Mr Bradley

SCHEDULE D TO THE MURRAY-DARLING BASIN AGREEMENT

I refer to your facsimile message to Mr Frank Kerin of the Office of Commercial Law, dated 9 March 1994, asking that he obtain this Office's advice on the validity of certain provisions of Schedule D.

2. The Murray-Darling Basin Agreement (`the Agreement') was entered into by the Commonwealth and the States of New South Wales, Victoria and South Australia and forms a Schedule to the Murray-Darling Basin Act 1993, s.5 of which expressly adopts the Agreement. Clause 134 of the Agreement provides for the accession of new parties to the Agreement by means of the approval of new Schedules by the Ministerial Council (which is established by Part III of the Agreement). A copy of cl.134 is attached for ease of reference. Sub-clauses 134(5)-(10), which require a Schedule to be laid before the Parliaments of each of the parties and provide for the Schedule to be disallowed by any House of any of those Parliaments, are recognised and given effect as Commonwealth law by s.18 of the Act.

3. Schedule D, which provides for Queensland to become a party to the Agreement, has been tabled in the Parliament. It contains provisions in relation to those parts of the Agreement which are not to apply to Queensland. Several of these provisions (cls 2(c), 3(2), 3(4)(b)(ii) and 4) have the effect of allowing the Ministerial Council or the Murray-Darling Basin Commission (established by Part IV) to determine, according to specified criteria (see cl.5), whether a provision of the Agreement applies to Queensland. A copy of Schedule D is attached for ease of reference.

Issue and summary of advice

4. The Senate Standing Committee on Regulations and Ordinances (`the Committee') has expressed concern that Schedule D may invalidly subdelegate powers to the Ministerial Council and the Commission and that the provisions mentioned above confer powers which may not be authorized by the parent Act. The Chairman of the Committee has asked that this Office advise on `the validity of the apparent subdelegations'.

5. In my view, assuming that Schedule D has been approved by the Ministerial Council, it constitutes a valid amendment of the Agreement and is not inconsistent with the Act.

Reasons

6. By virtue of cl.134(2)(a), the terms and conditions which may be prescribed by the existing parties `may include provision for. . . those Parts or provisions of the Agreement or its Schedules which apply to the new party and those which do not'. It is arguable that this provision only allows terms and conditions to be made which specify provisions of the Agreement that apply or do not apply, and does not provide any power to prescribe that the application of particular provisions is to be in the discretion of some person or body. However, the power granted by cl.134(2)(a) is expressed as a power to make `provision for' particular matters and not merely, for example, to specify them. The fact that cl.134(2) is expressed in this way suggests that it was intended to confer a power to deal with the listed subject-matters in the broadest possible terms, including the power to reserve aspects of those matters for later decision or place them in the hands of other persons. The expression `provision for' has been held to be capable of referring to `anything. . . which makes provision, to any extent, for what is to happen in connection with' a matter: Re Hall Autotorium (1984) 53 ACTR 3 at 7.

7. In any event, cl.134(2) is expressed as not limiting the generality of cl.134(1)(b); cl.134(2) therefore merely makes clear that the matters listed therein are included in the general power to prescribe terms and conditions under cl.134(1). That power is expressed in plenary terms and clearly, in its terms, includes a power to specify a condition that particular matters are to be decided by a specified body. I therefore think that cl.134 allows a Schedule in the terms of Schedule D to be added to the Agreement.

8. In reaching this view I have considered the general principle of interpretation that a person to whom power is delegated cannot delegate it to another (expressed in the maxim delegatus non potest delegare). I think that if that principle (which is no more than a rebuttable presumption) applies at all in a case such as the present one, it must apply very weakly and does not override the clear words of cl.134(1).

9. The principle is generally at its strongest in the case of powers of a legislative or judicial nature. Since the Agreement governs only the respective rights and duties of the parties to it, powers under cl.134 cannot properly be characterised as legislative. Nor, obviously, are the powers judicial. The principle is generally regarded as being fairly weak in the case of `administrative' powers (e.g. Hotop, Principles of Australian Administrative Law (2nd ed. 1984), p.240). Indeed, it is doubtful whether cl.134 can be placed at all within the framework of governmental powers (normally granted by legislation) to which the principle applies. The Agreement is not legislation (although Parliament has given its approval in the form of an Act) and, rather than governing the rights and duties of citizens as against the State, concerns only the rights and duties of its parties as against each other.

10. Nor do I think that there is anything in the Act to prevent Schedule D being added to the Agreement. The Act gives unqualified approval to the Agreement (s.5), including the provisions for amendment, and must be taken to authorise the Executive Government of the Commonwealth to participate as a party to the Agreement according to its terms. Section 18, which is headed `Accession to new parties', merely reflects the requirements of cl.134 in relation to tabling and disallowance.

Your sincerely

George Witynski

Senior General Counsel

3 March 1994

Senator the Honourable Bob Collins

Minister for Primary Industries and Energy

Parliament House

CANBERRA ACT 2600

Dear Minister

  I refer to the Meat Inspection (General) Orders (Amendment), Meat Inspection Orders No. 3 of 1993, and to the Meat Inspection (New South Wales) Orders, Meat Inspection Orders No. 5 of 1993, considered by the Committee at its meeting of 3 March 1994.

  Both of these Orders provide for a number of discretions. Many of these are not significant, but others involve decisions on commercially valuable matters. The Committee would appreciate your advice on whether these discretions are reviewable and, if not, of the reasons for this. In this context the Committee noted that Order 152 of Meat Inspection Orders No. 5 of 1993 expressly provides for Administrative Appeals Tribunal review of decisions by the Secretary to approve a dye solution, which does not seem to be as important a decision as others in the Orders which may not be subject to review.

  Order 38 of Meat Inspection Orders No. 3 of 1993 may provide for an invalid subdelegation of powers. The Committee would be grateful if you could arrange for the Office of General Counsel of the Attorney-General's Department to advise on whether the parent Act and regulations authorise this apparent subdelegation.

Yours sincerely

Mal Colston

Chairman

2 May 1994

Senator M Colston

The Chairman

Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Mal

  Thank you for letter of 3 March 1994 concerning the Meat Inspection (General) Orders and the Meat Inspection (New South Wales) Orders and recent amendment to these.

  Your Committee has raised two matters relating to subdelegation with reference to the Meat Inspection Act, and to discretionary powers, in particular the ability for appeal to be made to the Administrative Appeals Tribunal where commercial interests are affected.

  Advice from the Office of General Counsel of the Attorney-General's Department is being sought by AQIS on whether order 38 of the Meat Inspection (New South Wales) Orders constitutes an invalid subdelegation of powers.

  As to the matter of discretion, express provision is made in the Meat Inspection (General) Orders in relation to key areas in the traditional regulatory system. These are decisions relating to the allocation of meat inspection services, decisions made on review of directions made by authorised officers (to suspend all or part of the operations at licensed premises) and decisions made in regard to the approval of laboratories (at which official samples are analysed for the purpose of providing prima facie evidence). These provisions apply equally to decisions of an identical nature made under the respective State or Territory Orders.

  In regard to the Meat inspection (New South Wales) Orders, it appears that apart from order 152 there is no express provision that would allow other decisions to be referred to the Administrative Appeals Tribunal.

  This omission appears to be an oversight and I have requested AQIS to examine those Orders to identify decisions that might properly be the subject of review. Any such provisions would then need to be subject of appropriate amendment.

Yours sincerely,

(Bob Collins)

17 March 1994

The Honourable Kim Beazley MP

Minister for Finance

Parliament House

CANBERRA ACT 2600

Dear Minister

  I refer to the Sixth Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons under s.5 of the Superannuation Act 1990.

  On 19 August 1993 the Committee wrote to your predecessor, the Hon Ralph Willis MP, about discretions granted to the Board by the Fifth Amending Deed. On 8 October 1993 Mr Willis replied to this letter, advising of review procedures established by the Rules for the Administration of the PSS and of relevant provisions of the Superannuation (Resolution of Complaints) Bill 1993.

  This helpful response by Mr Willis met the concerns of the Committee. The Sixth Amending Deed, however, includes further discretions which could affect the interests of members of the scheme. For instance, new rule 1.3.27 provides that the Board may decide whether a particular act would be inequitable, new rule 3.4.4 gives the Board a discretion about payment of premiums, and new rule 12.1.8AA provides that the Board may make certain decisions about invalidity retirement.

  In view of the importance of these discretions the Committee would be grateful for your confirmation that they are subject to review under the Rules and, after 1 July 1994, under the Superannuation (Resolution of Complaints) Act 1993.

Yours sincerely

Mal Colston

Chairman

6 April 1994

Senator Mal Colston

Chairperson

Senate Standing Committee on

Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Colston

  Thank you for your letter of 17 March 1994 regarding your consideration of the Sixth Amending Deed to the Deed establishing an occupational superannuation scheme for Commonwealth employees and certain other persons under the Superannuation Act 1990 and, in particular, the changes to rule 1.3.27 and rule 3.4.4 and the addition of new rule 12.1.8AA.

  The discretionary powers provided by the changes to rules 1.3.27 and 3.4.4 and new rule 12.1.8AA are subject to the review provisions in Part 11 of the Rules. Part 11 of the Rules provides an extensive mechanism for the review of decisions made by the Board or by the delegates of the Board. These provisions have application where a person requests reconsideration of a decision but also apply where the Board decides to reconsider of its own volition.

  Just like superannuation schemes in the private sector, the scheme under the Superannuation Act 1990 will be subject to the provisions contained in the Superannuation (Resolution of Complaints) Act 1993. Therefore, a person would be able to seek review of decisions that are reviewable under that mechanism after the scheme's own review procedures have been completed. I understand that the precise extent of the decisions reviewable under that mechanism has not been finalised.

Yours sincerely

Kim C. Beazley