House of Representatives

Acts Interpretation Amendment Bill 1998

Second Reading Speech

Senator COONAN (New South Wales)

On behalf of Senator Margetts, I seek leave to incorporate her speech on the second reading of the Acts Interpretation Amendment Bill 1998 .

Leave granted.

The speech read as follows-

1. General Themes

The broad issues in this bill relate to achieving a balance between administrative ease or speed and proper oversight of executive decision making. Administrative law in general, is concerned to ensure that the existence of values of fairness, openness, honesty and efficiency in Commonwealth executive dealings with the general public.

Now-I would like to make clear that the Greens (WA) are supportive of the concept of administrative efficiency. Administrative efficiency is beneficial for members of the executive so that they can deal with their business in an optimal fashion without unwieldy red tape. Administrative efficiency is also beneficial for members of the public dealing with the executive. It is not in anyone's interests that government decision-making process should falter on what are no more than mere technicalities. Third parties dealing in good faith with the Commonwealth have a legitimate expectation that arrangements will not be frustrated by administrative oversights beyond their control. In addition, otherwise reasonable and lawful action taken against wrongdoers should not be defeated by technical objections.

However, administrative efficiency should in no way be confused with administrative ease and speed. The speediest methods of administration are not always the ones that produce the most desirable outcomes. The Greens are concerned that best practice administrative procedures and protocols are in place in our executive arm of government-so that the executive can do their job with certainty, transparency and effectiveness and that the public can go about their business with certainty without having their rights unnecessarily or harshly or unjustly impinged upon.

The Acts Interpretation Act 1901 is one of the central pieces of legislation in this kind of framework. In some instances the Acts Interpretation Act 1901 will operate to confer legal responsibility for particular statutory provisions on persons other than those specifically named in the legislation. Consequently the Acts Interpretation Act in prescribed circumstances works to bring the legal position into line with changes agreed at the administrative and political level. As such, the Greens take very seriously the potentially immense implications of even small changes to this Act.

In effect, the Bill asks the Parliament whether (and to what degree) it is prepared to permit the Executive to exercise a wider discretion than is currently available when altering lines of administrative authority and responsibility delineated by legislation.

Verbal Authorisations

One provision in this amending Bill, which would have had immense implications, is the ability to verbally authorise another Minister. We are pleased to see that the Government has taken on board concerns raised regarding their proposal that a grant of authority may be oral in cases where authority is conferred on a Minister. Oral authorisations are obviously problematic for a number of reasons.

The ability to authorise without a written instrument decreases the transparency in administrative decision making-it makes it hard to engage in proper auditing of these decisions; it creates problems in the enforcement of individual rights-as anyone who is aggrieved by administrative actions would run into evidentiary difficulties, and this would make it more difficult to gain redress through administrative appeal. Oral authorisations could also increase the incidence of court and tribunal proceedings being commenced with the wrong respondent/decision-maker being nominated by the complainant.

The lack of publicity and the lack of a clear paper trail could result in not only in severe injustices for anyone seeking to review or challenge an administrative decision, but in bad practice in Government decision making. Best practice most consistent with the principles of administrative law would be written authorisations for reasons of transparency and accountability. If oral authorisations are legitimate, there would a temptation to pursue this easier and less specific path-which would undercut best practice.

Not only that, but oral authorisations would potentially undermine parliamentary intention in specific pieces of legislation. But I will come back to this point later. For all these reasons-oral authorisations are a good example of where administrative ease or speed would not produce administrative efficiency-and may have produced very poor outcomes all round.

For all these reasons, I am glad that the Government has been persuaded by these arguments and has removed the ability to orally authorise.

2. What the Bill Does

This bill is ostensibly a clarification of when it is allowable for a Minister to authorise another Minister or a Parliamentary Secretary to exercise statutory powers on their behalf.

The Bill amends the Acts Interpretation Act 1901 in direct response to the decision of Justice Spender in Foster v Attorney-General (1998) that has put a question mark over the breadth of s19 in the Acts Interpretation Act.

Justice Spender's decision in the Foster case means that s19 is not sufficient legislative authority for a portfolio Minister to authorise a junior portfolio Minister to exercise statutory powers vested in the holder of a specific ministerial office (ie vested in the "Attorney General"). So in the Foster case, the Attorney General's authorisation of the Minister of Justice was held to be invalid. Consequently, a decision to issue a warrant purportedly made by the Minister for Justice, Senator Vanstone, under section 23 of the Extradition Act 1988 was held to be invalid.

This decision, by implication, also means that a portfolio Minister cannot authorise non-portfolio Ministers or Parliamentary Secretaries when powers are vested in a specific Minister.

Essentially this Bill will do a number of things.

It will retrospectively validate past authorisations that may have been made in reliance on section 19 to the extent that they may be invalid.
It will provide for a Minister to authorise a non-portfolio Minister or Parliamentary Secretary to act on his or her behalf.
And it will ensure that an order can be made by the Governor General under section 19 whenever there is any change to the administration of government business and validates past orders under s19BA to the extent that they may be invalid.

3. Concerns

The Greens appreciate the concerns expressed by the Attorney General in relation to Foster . The decision does have potentially serious ramifications for the administrative process of the executive and the Greens will not be preventing this Bill from attempting to address these concerns. The Greens see the merits in remedying the defects of the past. However, we do have concerns that a whole raft delegations or authorisations were done in an informal or non-recorded manner. And we would not like to see our acceptance of past validations as condoning informal delegations/ authorisations in the future.

Of course the issue of retrospectivity is ever present when we are dealing with past delegations. The issue is of injustices in the past that may no longer afford a remedy to an individual. This is always a difficult issue to weigh up. But on balance, as I mentioned previously, I do appreciate the concerns of the Attorney General and the potential for immense difficulties if these past authorisations are not validated.

Parliamentary Oversight

Another concern the Greens have is with the removal of the variance between specific and non-specific references to Ministers. This Bill essentially operates to remove the distinction between more general terms like "the Minister" and highly specific terms like "the Attorney General".

The situation as it currently stands is that when a piece of legislation uses the term "the Minister" this refers to any Minister with responsibility for that portfolio.

However, when a piece of legislation uses the term "the Attorney General" or "the Minister for Finance" or "the Treasurer", this refers specifically to the person currently occupying that position. By naming a particular Minister, there is an assumption that it was Parliament's view that that Minister should be accountable for things done under the Act and should be required to personally perform the statutory functions that the law assigns to her or him.

The amendments in this Bill, by homogenising the distinction between these terms, threaten to usurp parliamentary intention when the legislation was written and agreed to. Although the Prime Minister's ministerial code of conduct prefers the generic term to avoid potential complications, the legislation handbook recognises that there are appropriate circumstances where parliament should legislate to name a specific minister because of the special skills needed in undertaking a particular duty or function.

Of course, the entire basis of administrative law is that everything requires a specific statutory mandate. Ministers (or anyone else in the executive arm of Government) cannot go off on "a frolic of their own" without reference to a specific statutory authority. So when a piece of legislation says "Attorney General"-it is indicating that there are special skills needed in this area. This should not be overlooked too easily.

The Greens (WA) note that the Attorney General's department is currently undertaking a review of the Acts Interpretation Act 1901 . We shall be watching these developments carefully to ensure a good balance is struck. We shall be watching that changes do not ask the Parliament too go too far in permitting the Executive to exercise a wider discretion than is currently available and when altering lines of administrative authority and responsibility delineated by legislation.

While supporting this Bill at Second Reading, the Greens (WA) will carefully consider the amendments in the Committee Stage of this Bill.