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House of Representatives

Acts Interpretation Amendment Bill 1998

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.


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