This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer and Copyright Details
Acts Interpretation Amendment Bill
Date Introduced: 12 November 1998
House: House of Representatives
Commencement: On Royal Assent. The Bill,
however, validates administrative decisions made before the date of
The Bill amends the Acts Interpretation Act
1901 (the Principal Act) to overcome the decision of Spender J
in Foster v Attorney-General (1998)(1) that has cast doubt
over the capacity of a Minister to authorise another Minister or a
Parliamentary Secretary to exercise statutory powers on their
The Bill will validate previous decisions of the
type held unlawful in Foster v Attorney-General and
relaxes the formal procedures for redistributing executive power
The present Bill deals with what are complex and
seemingly arcane matters of public administration relating to the
rules governing the appointment, powers and responsibilities of
Ministers and members of the Federal Executive Council. The policy
issues underlying the Bill are nonetheless significant.
Administrative Arrangements -
Distributing Executive Power
The 'golden rule' of decision-making in the
public sector is that nothing can be done without specific
authority. The source of that authority will generally be either an
Act of Parliament, subordinate legislation or a cabinet decision.
In some instances, the source of authority may be the Australian
Constitution or a decision of the Governor-General.
The distribution of executive power within the
Commonwealth is a matter of political authority. However, the
exercise of that power relies on a number of related
Section 64 of the Constitution provides that
Ministers are appointed by the Governor-General. Ministers must
administer Departments but there is no constitutional objection to
more than one Minister administering a single department of
Under the Parliamentary Secretaries Act
1980, Parliamentary Secretaries may also be appointed to
assist Ministers in their duties. For constitutional reasons,
Parliamentary Secretaries are unsalaried.
Like Ministers, Parliamentary Secretaries are
appointed to the Federal Executive Council provided for under
sections 62 to 64 of the Constitution.
The Federal Executive Council provides advice to
the Governor-General usually in relation to action authorised by
Acts of the Parliament.
A Minister's formal commission from the
Governor-General generally gives them a formal title (eg Minister
for Justice) and names the Department that they are to administer.
A further formal and more detailed division of authority is
provided by the Administrative Arrangements Orders (AAO). Each AAO
is made by the Governor-General acting on advice.
A new AAO is as a matter of practice made
whenever there is a significant change in ministerial
responsibilities within the government as, for example, when a new
government is formed.
To quote a recent Legal Briefing
prepared by the Attorney-General's Department:
The [AAO] provides a detailed description of the
department's and Minister's responsibilities. This Order sets out
for each department:
the matters to be dealt with by
the department (and provides that the department also deals with
matters arising under legislation administered by the department's
legislation to be administered
by the Minister for that department (and provides that the Minister
administers legislation passed, before or after, that relates to a
matter dealt with by the Minister's department).
Where there is more than one Minister
administering a department, the [AAO] operates so that each
Minister administers all the legislation relevant to the
department. Arrangements for the allocation of responsibilities
between Ministers are made at the political level.(2)
The most recent AAO was made on 21 October 1998.
Copies are available in the Parliamentary Library and 'on line' for
those who wish to examine the relevant format.(3)
Acts Interpretation Act
The preceding discussion of the distribution of
ministerial authority is incomplete without reference to other
matters that relate directly to the Acts Interpretation Act, the
Federal Court's decision in Forster v Attorney-General and
to the present Bill.
This is because the constitutional arrangements
described above do not cover all the possible situations that arise
during the life of a government that affect its decision-making
processes. What, for example, happens when a Minister is replaced
or becomes ill and temporarily is unable to discharge her or his
duties? What happens if an Act is repealed or a new piece of
legislation is enacted? What happens if there is a minor
re-allocation of responsibilities between departments?
The answers to these questions depend on a
number of factors.
First, changes may be judged significant enough
to warrant the making of a new or supplementary AAO.
Secondly, the provisions of the Acts
Interpretation Act may be relevant. In some instances these will
operate to confer legal responsibility for particular statutory
provisions on persons other than those named in the legislation.
The Acts Interpretation Act in prescribed cases thus works to bring
the legal position into line with changes agreed at the
administrative and political level.
Thirdly, individual pieces of legislation
may provide some guidance as to which Minister has
responsibility for administering a particular statute. Here, the
choice of 'may' is quite deliberate. Some Acts will simply refer to
'the Minister', meaning any Minister from time to time appointed to
administer the law. Other legislative provisions will refer to a
particular Minister (eg the Attorney-General).
Foster v Attorney-General
Foster v Attorney-General arose out of
a challenge to a decision purportedly made by the Minister for
Justice, Senator Vanstone, under section 23 of the Extradition
Section 23 forms part of provisions in the
Extradition Act dealing with the extradition of persons from
Australia to other Countries (Part II). (Extradition to Australia
from Other Countries is dealt with under different part of the
Extradition Act, Part IV.)
Sections 22 and 23 specifically state that the
relevant decision-maker in relation to the making out of an
extradition warrant is the 'Attorney-General'. The Extradition Act
confers no power on the Minister for Justice and it was
successfully argued by Foster that there had been a technical
defect in the extradition proceedings because the wrong Minister
had taken the decision to issue the warrant.
Spender J was required to rule on the
Attorney-General's argument that the Minister for Justice could
lawfully make decisions under section 23 for the Attorney-General.
It was argued that authority had been conferred by a Joint
Ministerial Press Release issued on 10 October 1997 and a letter
from Minister Williams to Senator Vanstone dated 24 November
It was argued that the Attorney's purported
delegation of power to his Ministerial colleague was supported by
section 19 of the Acts Interpretation Act which provides:
Where in an Act any Minister is referred to, such
reference shall unless the contrary intention appears be deemed to
include any Minister or member of the Executive Council for the
time being acting for or on behalf of such Minister. (emphasis
Spender J rejected the Attorney-General's
submission and found that the power under the Extradition Act must
be exercised by the Attorney and could not be delegated to the
Minister for Justice.
Referring to the Joint Press Release and the
letter of 24 November 1997, the judge held that such a delegation
could not be authorised under section 19 of the Acts Interpretation
Act and that section 19 did not permit the making of open ended
delegations. Citing the relevant legal authorities, His Honour went
on to suggest that section 19 operates:
1/4 to provide a mechanism by which illness or
absence from Australia or leave or other emergency could be met so
as to permit the continued orderly administration of the enactments
of the Parliament of the Commonwealth.(4)
His Honour also found fault with the mechanism
used in the purported attempt by the Attorney-General to confer
authority on the Minister for Justice.
His Honour concluded that there was no authority
for what he (by implication) described as a 'job sharing deal
between two Ministers'. Section 19 in His Honour's view, has a
clear temporal element limiting the length of Prime Ministerially
sanctioned 'acting' arrangements.(5)
Spender J also contrasted the course followed by
the two Ministers with either seeking the approval of the Executive
Council for the delegation of authority or, less formally, the
Prime Minister directing a second Minister to act for the Minister
referred to in the statute or instrument.(6) The former route of
appointment is not in doubt. After a detailed discussion of the
cases - principally Burchett J's judgment in GTE (Australia)
Pty Ltd v Brown (1986)(7) - Justice Spender also appears to
confirm that the Prime Minister is able to authorise short-term
'acting' arrangements by virtue of section 19.(8)
Given a narrow reading of Foster v
Attorney-General, section 19 of the Acts Interpretation Act
has a limited operation and cannot be used to support long-term or
open-ended acting arrangements arrived at bilaterally between two
ministers. That is, the established practice of allowing more than
one Minister to administer a portfolio (as sanctioned by the AAO
and apparently supported by judicial authority)(9) does not
overcome restrictions placed on such arrangements by the terms of
the specific statutes being administered.
Given a broader reading, Spender J's judgment
may cast some doubt on the practice whereby a Prime Minister may
without reference to the Governor-General authorise one Minister to
act for another more generally.
The Attorney-General has indicated that the
Commonwealth will appeal against Spender J's decision.
In the interim the present Bill has been
The proposed amendments do more than address the
'problem' identified in Foster v Attorney-General.
Amendments will validate similar previous
decisions where a Minister or Parliamentary Secretary has
erroneously acted in the belief that they were given authority by a
relevant Minister to make decisions under a particular statutory
provision. The Bill also makes it possible for any member of the
Executive Council who has been given portfolio responsibilities by
the AAO to exercise those responsibilities without formal authority
from either the Prime Minister or the Executive Council.
As already noted, the Government argues that the
proposed legislation is necessary pending an appeal against Spender
Proposed amendments appear in Schedule 1 to the
Item 1 proposes that
section 18C be inserted into the Principal Act.
This provision will allow any Minister administering a particular
portfolio to authorise another member of the Executive Council (ie
any other Minister or a Parliamentary Secretary) to perform
functions and make decisions under legislation administered by the
authorising Minister. Where there is more than one portfolio
Minister, either Minister may grant such an authorisation. Unlike
the position in Foster v Attorney-General, where two
Ministers administering the same portfolio were involved, authority
under proposed section 18C may be conferred on any
Minister or Parliamentary Secretary.
18C(5) and 18C(6) provide that a grant of authority may be
oral or in writing in cases where authority is conferred on a
Minister but must be in writing where authority is conferred on a
Item 2 validates past
authorisations of the type referred to in item 1.
Hence, the changes made by item 1 may operate
retrospectively. (The numbering of this provision and other
validation provisions contained in this Bill reflects the intention
that they operate but not form part of the Principal Act as
Item 3 amends section 19 of the
Principal Act to remove the phrase 'unless the contrary intention
appears'. This amendment does not specifically arise out of the
decision in Foster v Attorney-General. The Explanatory
Memorandum states that this amendment will operate to overcome
possible ambiguity where an Act already gives a Minister power to
delegate. Another possible source of ambiguity may arise where an
existing power under an current Act proves to be narrower than the
power conferred on Ministers generally by the present Bill.
Item 4 will amend section 19A.
This amendment allows the sort of informal 'job sharing'
arrangement amongst Ministers administering the same portfolio that
was struck down in Foster v Attorney-General.
Subsection 19A(1) presently deals with
situations where an Act refers to 'a Minister' meaning the Minister
who administers the Act from time to time. Subsection 19A(1)
provides that where the statutory provision does not refer to a
particular Minister, then any Minister whose commission extends to
administering the portfolio that administers the relevant law, may
make decisions or perform functions under that law. This may be
contrasted with the situation in Foster v Attorney-General
where the Act in question referred to a particular Minister, ie the
The amendment here operates to remove the
distinction made by the current subsection between the use of the
generic term 'Minister' and the use of a particular ministerial
The effect is to allow informal or 'bilateral'
delegations of the type held to be beyond power in Foster v
Item 5 provides for the
validation of past acts performed by Ministers who were acting on a
purported grant of authority of the type relied on by the Minister
for Justice in Foster v Attorney-General. In effect, this
means that the changes made by item 4 may operate
Item 6 will amend paragraph
19BA(1)(b) of the Principal Act. Section 19BA permits the
Governor-General to alter references in Acts to specific Ministers,
departments and Secretaries on account of changes effected by the
AAO. The proposed amendment applies to any change of government
operations made by the Governor-General, not just those changes
given effect to by an AAO.
Item 7 is a validation
provision and confers retrospective operation on the changes made
by item 6.
Potentially lost in the foregoing sea of detail
are a number of important principles.
On the one hand, the proposed amendments
recognise the perceived need for greater flexibility in
administrative arrangements within the Executive. This in part
reflects the development of the so-called mega-departments in the
late 1980s, the associated practice of having more than one
Minister per portfolio and the increased use of Parliamentary
The proposed amendments also reflect the view
that government decision-making process should not founder on what
are no more than mere technicalities. Thus third parties dealing in
good faith with the Commonwealth have a legitimate expectation that
arrangements will not be frustrated by administrative oversights
that are beyond their control. Similarly, otherwise fair and lawful
action taken against wrongdoers should not be defeated by technical
objections. (In the case of Foster v Attorney-General,
Spender J was clearly unimpressed by the substantive arguments
raised by Foster opposing his extradition to the United
Authorisations similar to those in
Foster have been given by Ministers in other portfolios.
Moreover, the practice of relying on section 19 of the Acts
Interpretation Act in the manner criticised by Spender J is quite
common.(11) It is also possible that similar purported
authorisations were given by Ministers during the life of the
If Foster v Attorney-General is upheld
it is likely that such defences will be relied on increasingly. For
example, it is conceivable that persons seeking to frustrate the
operation of Part IV of the Extradition Act 1988, ie the
provisions dealing with extradition to Australia, may be able to
take advantage of similar procedural defects.(13)
Of course, the principle in Foster v
Attorney-General extends beyond extradition matters and has
the potential to apply to decisions taken and functions performed
by all Ministers and Parliamentary Secretaries where a delegation
and the exercise a statutory power is involved.
Objection may be taken to the proposed
amendments on a number of grounds.
First, the validation provisions will operate
retrospectively as well as prospectively. (The arguments regarding
the ethics of retrospective laws are well known and need not be
Secondly, it is arguable that the amendments are
largely unnecessary. It might be said that they are being proposed
not because the existing processes are unfair or unworkable but
because those procedures were misused. On this view, the Bill
exists primarily to remedy one administrative error and to prevent
similar errors being made.
Spender J's decision does not impede the Prime
Minister's continued use of section 19 of the Acts Interpretation
Act to appoint Ministers to act in place of temporarily indisposed
or otherwise unavailable colleagues. Moreover, the decision does
not directly call into question the practice of more than one
Minister being appointed to administer a single department. Changes
to administrative arrangements will still be able to be made by the
making a new AAO. Other relevant provisions of the Acts
Interpretation Act, such as 19B and 19BA, are unaffected by
Foster v Attorney-General.
This is not to say that all the Government's
proposals may give rise comparable concerns. Some amendments are
quite modest. For instance, the proposals contained in
items 3 and 6 in the Schedule
remove some potential anomalies and build in greater flexibility.
They appear to do so without radically changing current practice or
eroding existing checks and balances.
Perhaps the most fundamental objection to the
key provisions in the Bill is that in some circumstances they may
operate to diminish individual rights and over-ride the express
will of the Parliament.
Spender J makes the following observation in
Foster v Attorney-General:
It might be thought nit-picking and offensive to
the efficient and orderly arrangement of the business of
Attorney-General's Department that I have concluded that the
Minister of Justice is not a person who satisfies the description
in section 19 of the Acts Interpretation Act. However, the liberty
of an Australian citizen and our international obligations in
respect of extradition highlight the need for a punctilious
compliance with the law in this area. Deane J noted in Re Bolton;
Ex parte Beane (1987) 61 ALJR 190 at 196:
'Any officer of the Commonwealth Executive who,
without judicial warrant, purports to authorise or enforce the
detention in custody of another person is acting lawfully only to
the extent that his conduct is justified by clear statutory
mandate. That being so, it is the plain duty of any such officer to
satisfy himself that he is acting with the authority of the law in
any case where, in the name of the Commonwealth, he directs that a
person be taken and held in custody.'(14)
Apart from the larger human rights concerns,
some of the proposed changes may create practical and procedural
difficulties for anyone seeking to review or challenge an
administrative decision. Proposed subsection
18C(5), which allows for oral as well as written
ministerial authorisations, is one specific source of potential
accountability and evidentiary concerns. If unwritten
authorisations become common, the 'paper trail' (sic) of government
decision-making may become just that little bit harder to follow.
The proposed changes may also increase the incidence of court and
tribunal proceedings being commenced with the wrong
respondent/decision-maker being nominated by the complainant.
In instances where individual liberty is not at
stake there is still the issue of whether the proposed changes
unacceptably diminish parliamentary oversight of executive
References in legislation to a particular
Minister rather than 'the Minister' can be taken to reflect the
legislative intention of the Parliament.(15) Subject to certain
qualifications,(16) the naming a particular Minister means 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
Where the dictates of administrative convenience
are strongest, the Acts Interpretation Act already permits the
Executive to ignore the plain words of an enactment by directly
nominating a different Minister to the one named to perform a
particular function or make decisions under that Act.(17) Such a
process is clearly more efficient than one alternative, that of
re-committing every law to parliament each time there is a change
to administrative realities. The present trade-off for this
Executive flexibility is that there are limits to what can be done
and on how it must be done. Foster v Attorney-General,
merely reinforced the basic point that the formal redistribution of
administrative power by direct Executive action is subject to
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.
- Unreported, No. 1299 FCA, 12 October 1998.
- Attorney-General's Department, Legal Briefing No.43,
23 September 1998, pp 2-3.
- Foster v Attorney-General (1998), 12 October 1998, p
- ibid, p 15.
- 76 ALR 221 at pp 252-253.
- Op cit, pp 15-19.
- Zoeller v Attorney-General for the Commonwealth (1987)
16 FCR 153.
- Op cit, pp 21-24.
- Attorney-General's Department, Legal Note No.14, 19
- Although after some investigation none has come to light.
- Section 43 of the Extradition Act 1988 would appear to
leave open such a possibility. Section 40 allows the
Attorney-General to delegate the making of a request for
extradition to another person. However, section 43 makes it plain
that certain functions in the process must be performed by the
Attorney-General personally. A similar defective/purported
delegation of authority from the Attorney-General to another
Minister is thus theoretically possible in cases of
extradition and attempted extradition to Australia.
- Op cit, pp 20-21.
- Put more bluntly, the Parliament deliberately chose that not
just any Minister should exercise a particular power.
- Some Acts may contain provisions which limit the scope for
delegation but have no substantive reason for continuing to do so.
It is possible that a number of Acts passed prior to the
administrative and governmental reforms of the late 1980s, contain
what are now overly restrictive provisions.
- Refer sections 19B, 19BA and 19BB.
23 November 1998
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
© Commonwealth of Australia 1998
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
Published by the Department of the Parliamentary Library,
Back to top