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1998
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ACTS INTERPRETATION AMENDMENT BILL 1998
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Attorney-General,
the Honourable Daryl Williams AM QC
MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
ISBN: 0642 379165
ACTS INTERPRETATION AMENDMENT BILL
1998
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.
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.
Authorisations given to both Ministers and Parliamentary Secretaries must be in
writing. This will ensure that it is easier to ascertain the decision maker
when seeking to review or challenge an administrative
decision.
This will reduce the flexibility for
Ministerial authorisations, however section 19 will still be available to make
urgent authorisations. Even under the Foster decision, section 19 can be
used to deal with circumstances in which a Minister was temporarily unavailable
to perform duties. In addition Cabinet and the Prime Minister would still have
power to authorise a Minister to exercise power on behalf of another Minister,
as recognised by the decision in the Foster
case.
The amendments also validate past
authorisations that have been made in reliance on section 19 to the extent that
they may be invalid. The amendments validate past authorisations, whether oral
or written, given to another Minister or to a Parliamentary
Secretary.
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.
The Bill will not have a significant financial impact.
1. Clause 1 provides for the Act to be cited as the Acts
Interpretation Amendment Act 1998.
2. Clause 2 provides that the Act will commence on Royal
Assent.
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.
Item 1 – After section
18B
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 authorisations given to both Ministers and
members of the Executive Council must be in writing. This will ensure that it
is easier to ascertain the decision maker when seeking to review or challenge an
administrative decision.
10. New subsection
18C(6) 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 another Minister or member of the
Executive Council before the commencement of new section 18C (item 1).
12. Item 2 ensures that any purported past
authorisation given by a Minister, whether in writing or orally, is taken to
have been validly given. It also provides for such authorisations to be revoked
in writing by the authorising Minister at any
time.
Item 3 – Section
19
13. 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.
14. 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)
15. Item 4 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.
16. 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
17. 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.
Item 6
– Paragraph 19BA(1)(b)
18. 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 6 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 orders to be made when there is a new
ministerial appointment to an existing
portfolio.
Item 7 – Validation of past
orders
19. Item 7 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.