Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)GENERAL OUTLINE
This Bill makes amendments to the Acts Interpretation Act 1901 to address the implications of a recent decision of the Federal Court in Foster v Attorney-General, 12 October 1998, which has serious implications for government administration.
In that case the Court found that section 19 of the Acts Interpretation Act 1901 does not enable the Attorney-General to authorise the Minister for Justice to exercise statutory powers for and on his behalf. This decision has significant ramifications for other authorisations made under section 19 of the Act.
The result of the case is that section 19 cannot be used to authorise junior portfolio Ministers, or another Minister, to exercise statutory powers vested in the holder of a specific ministerial office. Decisions by portfolio Ministers in relation to statutory powers conferred upon the Minister are not affected as section 19A of the Acts Interpretation Act provides that such references are effectively taken to mean all Ministers appointed to administer the relevant department. The decision also means that section 19 cannot be used to authorise Parliamentary Secretaries to exercise statutory ministerial powers.
It is noted that the decision in the Foster case recognised the existing power of Cabinet to authorise a second Minister to act for and on behalf of another Minister and also recognised the power of the Prime Minister to direct that a second Minister act for and on behalf of another Minister. Section 19 of the Act is being retained to ensure that Cabinet and the Prime Minister retain the powers of appointment recognised in the Foster decision.
The proposed amendments will provide for a Minister to authorise a non-portfolio Minister or a Parliamentary Secretary to act on his or her behalf. The amendments also validate past authorisations that have been made in reliance on section 19 to the extent that they may be invalid.
The Bill also makes related amendments to section 19BA to ensure that an order can be made by the Governor-General under that section whenever there is any change to the administration of government business and validates past orders made under section 19BA to the extent that they may be invalid.
An appeal has been lodged in the Foster case. However, because of the implications of the decision it is appropriate that urgent legislative action be taken to clarify the position and to validate past authorisations made in reliance on section 19 of the Act.
FINANCIAL IMPACT STATEMENT
The Bill will not have a significant financial impact.
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 provides for the Act to be cited as the Acts Interpretation Amendment Act 1998.
Clause 2 - Commencement
2. Clause 2 provides that the Act will commence on Royal Assent.
Clause 3 - Schedule(s)
3. Clause 3 provides that each Act referred to in a Schedule is amended in accordance with the applicable items in the Schedule concerned and also provides that any other item in a Schedule has effect according to its terms.
Schedule 1 - Amendment of the Acts Interpretation Act 1901
4. Item 1 inserts new section 18C.
Portfolio Minister may authorise a non-portfolio Minister or member of the Executive Council who is not a Minister to act on his or her behalf in the performance of statutory functions or the exercise of statutory powers
5. New subsection 18C(1) provides for a Minister to authorise a non-portfolio Minister (18C(1)(a)) or member of the Executive Council who is not a Minister (18C(1)(b)) to act on behalf of the authorising Minister in the performance of all or any functions or powers of the Minister under Acts or provisions administered by the authorising Minister. New subparagraph 18C(1)(b) allows a Minister to authorise a Parliamentary Secretary to act on his or her behalf, as Parliamentary Secretaries are non-ministerial members of the Executive Council.
6. New subsection 18C(2) ensures that an authorisation extends to powers and functions of the authorising Minister under regulations, rules or proclamations.
7. New subsection 18C(3) provides for authorisations to be made for specified periods or circumstances or for indefinite authorisations until another person is appointed to the office held by the authorising Minister.
8. New subsection 18C(4) makes it clear that an authorisation can be revoked at any time.
9. New subsection 18C(5) provides that an authorisation given to a Minister may be oral or in writing. New subsection 18C(6) provides that an authorisation given to a member of the Executive Council must be in writing.
10. New subsection 18C(7) ensures that the power to give an authorisation under section 18C does not affect authorisations given under other powers.
Item 2 - Validation of past authorisations
11. Item 2 provides for the validation of past authorisations purported to be given by a Minister to a non-portfolio Minister or member of the Executive Council before the commencement of new section 18C (item 1). Item 2 ensures that decisions made under a purported authorisation are taken to be valid.
12. The phrase unless the contrary intention appears has created problems in relation to Acts that provide for a Minister to delegate his or her powers, one view being that the existence of a power to delegate may evince a relevant contrary intention. Item 3 amends section 19 by deleting the reference to contrary intention to ensure that these problems are not perpetuated.
13. In the Foster decision Spender J recognised that both Cabinet and the Prime Minister have traditionally been able to appoint a Minister or member of the Executive Council to exercise a statutory power vested in another Minister for and on behalf of that other Minister. In particular, His Honour noted that Cabinet or the Prime Minister may make an appointment of that kind where the other Minister is unable to exercise the relevant power through illness, absence or more generally. Section 19 of the Act is being retained to ensure that Cabinet and the Prime Minister retain the powers of appointment recognised in the Foster decision.
Item 4 - Subsection 19A(1)
14. Item 3 amends subsection 19A(1) to provide that a reference to a Minister, whether specific or generic, is taken to be a reference to all Ministers appointed to administer a particular department, that is, all Ministers within the one portfolio. This will allow all Ministers within a portfolio to exercise relevant statutory powers of the portfolio Minister, where appropriate.
15. The reference to contrary intention has been retained in section 19A as there is no question of a power of delegation giving rise to a contrary intention for the purposes of that provision.
Item 5 - Validation of past acts
16. Item 5 provides for the validation of past acts purported to be done on behalf of a portfolio Minister by another Minister in the portfolio before the commencement of this Act. This provision validate acts done where, for example, a junior portfolio Minister purported to exercise statutory powers that were specifically vested in the portfolio Minister. This will ensure that the kind of authorisation considered in the Foster case is validated.
17. Section 19BA is designed to allow references in laws and instruments to be changed, as necessary, following reorganisations of the administration of government business. Item 5 amends paragraph 19BA(1)(b) to clarify the scope for making orders under section 19BA to ensure that orders can be made whenever there is any change to the administration of government ordered by the Governor-General and not merely when new Administrative Arrangement Orders are made. For example, the new provision would allow for new orders to be made when there is a new ministerial appointment to an existing portfolio.
Item 6 - Validation of past orders
18. Item 5 validates past orders that were purported to have been made under paragraph 19BA(1)(c) to the extent that they may have been invalid and thereby clarifies any doubts about the past ability of a Minister to exercise statutory powers in reliance on an order made under paragraph 19BA(1)(c) following a reorganisation of the administration of government business.