Cabinet approves discretionary powers guide

Cabinet has approved a new policy guide to regulate government officials’ exercise of discretionary powers. The decision was made during a meeting on May 22, marking another step towards enhancing governance and transparency in the territory.

Premier Dr Natalio Wheatley highlighted the necessity for such a guide, citing recommendations from the Commission of Inquiry (COI) report.

Dr Wheatley agreed that ministers need more guidelines and more limitations to exercise their power. “One of the challenges that [COI Commissioner] Sir Gary Hickenbottom identified is that ministers exercise open-ended discretion, which means they were not the appropriate limits on the powers exercised by ministers,” the Premier said.

He added: “That was revealed through how we issued grants and perhaps how you rejected a tender process and did attend the waiver or even as it pertains to immigration and belonger status and how those statuses were granted.

The policy’s approval follows a thorough review by Anthea Smith, who was tasked with drafting the guide. Smith’s involvement underscores the importance of legal expertise in shaping policies that prevent abuse of power and ensure accountability.

Smith’s review concluded that while most discretionary powers granted to elected officials are necessary and appropriate, certain provisions could potentially be challenged constitutionally.

For example, the provision in the Social Security (Employment Injury Benefits) Regulations allowing the Minister to remove tribunal members without reason compromises the tribunal’s independence. Similarly, the Public Finance Management Regulations enable the Cabinet to exercise discretion over the Central Tenders Board’s recommendations without clear criteria, risking judicial review.

The review recommended that clearer guidelines and supplemental legislation be introduced to ensure that discretionary powers are exercised by good governance principles. This includes specifying the purpose of discretionary powers and establishing criteria for their exercise to prevent misuse and ensure accountability.

In the meantime, Cabinet mandated the Premier’s Office to develop an implementation plan for the guide, including training for various ministries and departments. Additionally, the policy will be reviewed after two years, potentially leading to the enactment of the proposed Administrative Justice (Judicial Review) Bill.