Christos Mantziaris
Law and Bills Digest Group
8 November 1998
Contents
Major Issues Summary
Introduction
The problem of informal Minister-board
communication
The governance structure of statutory
corporations
The evidence on informal Minister-board communication
The propriety of informal Minister-board communication
Structural reasons for the problem
Ministerial powers of direction as a solution
The position of statutory corporations in the
framework of responsible government
The meaning of responsible
government
The principle of ministerial responsibility
The uncertain requirements of responsible government for statutory
corporations
Is ministerial responsibility for a statutory corporation required
by the Constitution?
The view of academics
The emerging view of the courts
Interpreting ministerial directions powers
Litigation context
The interpretative choices
Parliamentary intention and the weak
form approach
Literal construction
Purposive construction
Strong form approach
Hughes v Airservices Australia
The strong form approach to responsible government in Hughes
Responsible government and historical change - the problems of a
strong form approach
Conclusion
Endnotes
Over the past ten years, the Commonwealth
Government has withdrawn from the oversight of the day-to-day
operation of many of its business and statutory authorities. The
managers have been allowed to manage, while government has
concentrated on policy formulation and the overall steering of
these entities.
Yet the government's withdrawal from the
operational level has not been complete. The government is not an
ordinary business owner and it has preserved its ability to
intervene, where necessary, in the affairs of entities under its
control. Needless to say, such interventions can be politically
controversial.
Parliament has sought to regularise the means by
which the executive may intervene in the affairs of statutory
corporations by granting the portfolio Minister a formal power to
direct the corporation. The breadth of these powers varies. The
power might extend to all of the activities of the corporation, a
specified range of activities, or specific transactions.
Two problems have emerged with this form of
regulation. First, as the recent case of Hughes v Airservices
Australia (1997) 146 ALR 1 illustrates, Ministers have ignored
the statutory power of direction, and have continued to exercise
informal influence over the corporation. These informal
communications between Ministers and boards occur in a zone of
moral and legal uncertainty. No firm rule has developed for their
regulation. Company law norms regulating this practice are
difficult to apply, as it is difficult to reconcile the structure
of the statutory corporation and the ministerial directions power
with the governance arrangements of the private sector company.
The second problem lies in the judicial
interpretation of statutory directions powers. Up until recently,
the courts were quite content to interpret these provisions through
conventional methods of statutory interpretation (i.e. the
'purposive' and 'literal' construction methods). But the decision
of the High Court in Lange v ABC (1997) 145 ALR 96 and
that of the Federal Court in Hughes, indicates that courts
are now more willing to interpret the accountability structures of
statutory corporations by reference to implications drawn from the
Constitution.
The Lange case established that
specific sections of the Constitution prescribed a system of
'responsible government' for the Commonwealth. The court had little
to say about the requirements of responsible government. Indeed,
these requirements have been kept vague by courts, so as to
preserve the flexibility of Parliament to pass legislation allowing
the executive to organise its activities in new ways.
The Hughes case appears to restrict
this flexibility by adopting a much stronger and narrower approach
to the requirements of 'responsible government'. In particular, the
case suggests that the Constitution requires statutory corporations
to be accountable to Parliament through the principle of
ministerial responsibility notwithstanding any additional means
that Parliament may choose (e.g. approval of corporate plans,
financial reporting, dividend policy, imposition of directors'
duties). This emphasis on ministerial responsibility allowed the
court in Hughes to interpret a ministerial directions
power as being broad enough (i) to allow a Minister to intervene in
any aspect of the board's decision making, provided he or she did
so through the use of the statutory power; and (ii) to support the
Minister's right to receive any corporate information he or she
required (whether confidential or not) in order to exercise that
power.
This strong form approach to responsible
government gives cause for concern. First, it appears to lack
constitutional foundation. Secondly, it runs the danger of placing
undue emphasis on a particular form of relationship between
Parliament and the executive, that of ministerial responsibility.
This emphasis might frustrate Parliament's ability to create other
forms of executive accountability, which might better accommodate
the changed nature of contemporary social and economic phenomena.
Private sector style corporate governance techniques for statutory
corporations are one example. The use of companies incorporated
under the Corporations Law are another.
This paper restricts itself to Commonwealth
bodies which are cast in the form of the statutory corporation
rather than the Corporations Law Company. But the elucidation of
the theory of responsible government is also relevant for the
latter. The ability of a theory of responsible government to remain
flexible is critical to the evolution of the working
Constitution.
This Research Paper addresses the problem of
informal communication between Ministers and the boards of
statutory corporations and Parliament's attempt to regulate these
communications through the enactment of formal ministerial powers
of direction over the corporation. Directions powers are an attempt
to reconcile two conflicting needs-the executive's need to delegate
decision-making to an agent and the executive's need to preserve
its capacity to intervene in the agent's decision-making. Formal
directions provisions do not necessarily resolve the problem of
informal communication. They are often ignored by Ministers, and
their interpretation forces courts to grapple with uncertain areas
of constitutional law.
Judges interpreting ministerial direction
provisions have generally approached the task by attempting to give
effect to Parliament's intention through conventional techniques
such as the literal and the purposive construction of the statute.
But the increased judicial recognition of the system of responsible
government prescribed by the Commonwealth Constitution(1) has
raised the possibility of a broader field of interpretation. This
paper attempts to assess the merits of rival approaches to the
requirement of responsible government in the conduct of the affairs
of statutory corporations by reference both to their constitutional
underpinnings and to their ability to facilitate historical changes
in the form of accountability Parliament might think
appropriate.
Part 1 describes the problem of informal
Minister-board communication and seeks to contextualise it within
the peculiar governance structure of the statutory corporation. The
enactment of ministerial directions power is treated as a response
to these structural problems. Part 2 reviews the theory of
responsible government as it is emerging from the courts and
constitutional scholarship in order to ascertain the background to
the judicial interpretation of directions powers. Part 3 reviews
the rival approaches to responsible government and their
implications for the construction of directions powers.
Statutory corporations possess governance
structures which are idiosyncratic. In the standard case, the
statute which establishes the corporation will allocate formal
responsibility for decision-making between the board of the
corporation and the executive (usually represented by the Minister)
and define formal avenues of communication between the two
parties.
But behind this formal façade, there is
usually a high level of informal communication between the
Minister, the department and the board and management of the
corporation. These communications occur in an area which is
effectively unregulated by legal rules or conventions. Often, these
informal techniques will be used by the Minister to influence the
board's decision-making.
Statutory powers of ministerial direction over a
corporation must be understood as a response to this situation.
Such powers attempt to satisfy two conflicting needs-the
executive's need to delegate decision-making to an agent and the
executive's need to preserve its capacity to intervene in the
agent's decision-making.
The governance structure of statutory
corporations
A statutory corporation is an artificial legal
person with perpetual succession(2) created by statute. It has the
right to sue and be sued and has such other legal capacity as
Parliament may validly confer upon it. Beyond the possession of
these basic characteristics, the highly malleable nature of the
form does not allow the statutory corporation to be conceived as a
fixed legal category.
Some statutory corporations are nothing other
than a 'corporation sole' in which legal personality is conferred
upon an office in order to distinguish it from the natural person
who is its temporal occupant.(3) Other statutory corporations
provide the governance structure for the conduct of large-scale
governmental activities, ranging from the commercial (e.g. the sale
of goods and services) to the non-commercial (e.g. regulation,
industry representation and research).(4) The historical uses of
the form have differed enormously.(5)
The Commonwealth Executive has also used
Corporations Law companies to perform activities. Some of these
companies are proprietary companies, some are companies limited by
guarantee. Others, like the telecommunications carrier Telstra, are
listed public companies in which private investors may hold shares.
Government Business Enterprises (GBEs) are simply a collection of
legal entities that have been categorised as such because they
conduct substantial commercial activities. Some GBEs are statutory
corporations. Others have been created as private-sector style
companies incorporated under the Corporations Law. Parliament and
the Department of Finance have imposed additional oversight
mechanisms and controls on GBEs which have been created in response
to their commercially-oriented character.(6) Both statutory
corporations and Corporations Law companies controlled by the
Commonwealth are subject to the Commonwealth Authorities and
Corporations Act 1997 (Cth).
For the purposes of this discussion, the
Research Paper will focus on the circumstances of larger
contemporary Commonwealth statutory corporations such as the
Commonwealth Scientific and Industrial Research Organisation
(CSIRO), the Australian Broadcasting Authority (ABA), the Special
Broadcasting Service (SBS), the Australian Trade Commission
(AUSTRADE), or the Grain Research and Development Corporation.(7)
These organisations conduct activities on a financial scale and
with a labour force of a size that would easily place them within
the category of the large proprietary company(8) had they been
incorporated under the Corporations Law. They are also the type of
organisation that is more likely to experience the problem of
informal Minister-board communication.
In the case of these statutory corporations, the
parent statute will create a memberless corporation comprising a
board of directors, to be appointed by the executive, with defined
tenure and conditions for removal. Provision might be made for a
'government director'. In practice, this director is a nominee of
the executive and is usually employed as a public servant in the
relevant portfolio area. Responsibility for the statutory
corporation is granted under the Administrative Arrangements Order
to the Minister in charge of the Department of State most closely
related to the activities of the corporation.
The corporation is vested with a range of powers
necessary for the conduct of statutorily defined functions. But the
statute will usually reserve, for the ministerial principal,
authority over certain aspects of corporate decision-making. This
will usually be through a series of legal techniques which enable
periodic flows of formal communication between principal and agent,
e.g. the ministerial approval of periodic operational, financial
and corporate plans. The preparation of annual reports and the
corporation's subjection to audit by the Auditor-General further
supplement the informational needs of both the executive and the
Parliament.
The parent statute will also regulate formal
non-periodic communication between the political principal and the
board of the corporation. The statute may require the board to
obtain the Minister's approval for a range of specified
transactions (e.g. borrowing, investment, entry into a contract,
price-setting). It may also require the directors to notify the
Minister of the occurrence of specific events or the general
conduct of corporate operations. Many of these requirements have
now been applied generically to statutory corporations through the
Commonwealth Authorities and Companies Act 1997
(Cth).(9)
In the background of these controls lie other
formal oversight mechanisms. Parliament retains the right to
inquire into the affairs of the corporation.(10) Through statute,
or the issue of administrative guidelines by the executive, other
departments or agencies might be granted authority over specific
aspects of corporate operations: for example, the Minister for
Finance might be granted oversight of corporate borrowing and
'dividend' policy; the approval of the Department of Foreign
Affairs may be required for ventures outside the jurisdiction; or
the approval of the Department of Industrial Relations for staff
salaries and so on.
Depending on the character of the decision,(11)
and the rules of standing,(12) the board's actions might be subject
to scrutiny by the courts at the suit of a member of the public. In
this circumstance, the review of board decisions will be based on
the judicial review of administrative action rather than the
general law governing the director's fiduciary duties to the
corporation.(13) Depending on the identity of the statutory
corporation,(14) corporate information may be examined by the
public under freedom of information legislation (albeit in a manner
limited by considerations of commercial competition and state
confidentiality).
The evidence on informal Minister-board
communication
Oversight and coordination is also established
through informal communication between the board (and management)
and various parts of the executive. These communications range from
the ongoing contact between senior management and members of the
portfolio department or the Minister's office, to the phenomenon
which is the focus of this paper - the direct intervention of the
Minister in corporate decision-making over issues allocated ex
ante to the board under the parent statute.
Within the Anglo-Australian legal system, the
most systematic inquiries into ministerial intervention of this
nature have been occasioned by the large scale nationalised
industries of post-war Britain.(15) The British Parliament was so
concerned by the visible growth of extra-statutory ministerial
control, and 'the lack of clarity about purposes, policies, methods
and responsibilities' that ministerial intervention created, that
it held a Select Committee Inquiry into the Ministerial Control
of the Nationalised Industries (1967-68).(16) Evidence before
the Committee by corporate officers and public servants confirmed
the extent of de facto ministerial control over the industries.
Variations were noted in the pattern of ministerial intervention
between industries, in the personal styles of Ministers, in the
extent of ministerial control and its historical
background.(17)
Empirical data on the frequency of ministerial
interventions in Australian statutory corporations is not
available; nor is it ever likely to be available due to the
inherent methodological difficulties in ascertaining and measuring
the exercise of political influence. The recent case of Hughes
v Air Services Australia (discussed below) has provided some
insight into the manner in which Ministers will attempt to
influence boards and also the manner in which the senior management
of statutory corporations will cooperate quite closely, on an
informal level, with members of the portfolio Department.
Ministerial interventions in board affairs have also been
documented in the case of entities such as the Australian
Broadcasting Corporation, Telecom, the Overseas Telecommunications
Commission and the Civil Aviation Safety Authority.(18) Evidence
regarding ministerial intervention in respect of government
companies is too limited to support firm
conclusions.(19)
These events have often been the subject of
political controversy.(20) The relationship between the Minister
and the board is so deeply influenced by the location of the
statutory corporation within the political system that informal
Minister-board communication occurs in a space governed more by
political habit and expediency than by legal norms and
conventions.
The propriety of informal Minister-board
communication
Both British and Australian administrative
history reveal an absence of conventions regarding ministerial
intervention in the affairs of statutory corporations. Paul
Finn's(21) study of the practice of colonial boards in New South
Wales, Victoria and Queensland found that although British and
colonial practices in relation to the accountability of boards
differed, the colonies presented no uniform model for
Minister-board relations. Each colony appears to have positioned
its various 'Boards', 'Trusts', and 'Commissioners' in different
degrees of proximity to the executive, represented variously by one
or more Ministers of State, or the Governor-in-Council.
The failure of the British Select Committee on
Nationalised Industries to formulate principles for the exercise of
ministerial control is instructive.(22) On the one hand, the
Committee accepted that, whatever the theoretical arguments in
favour of making all exercise of ministerial control precisely
formal and authorised by statute, some degree of informality was
unavoidable. Indeed the informality of Minister-board relations
made it possible to respond flexibly to sudden changes in
circumstances. The Committee proposed that the respective
responsibilities of board and Minister be discussed informally and
then tabled in Parliament. On the other hand, the Committee could
not forgo the need for formal statutory regulation. The Committee
concluded that Ministers should use statutory powers as their main
instruments of strategic control. And in cases of ultimate
disagreement between Ministers and boards, the Minister should be
required to act formally if his or her directions were to be put
into effect. (23) This ambivalence towards the respective roles of
boards and Ministers is also reflected in the international public
administration literature.(24)
Structural reasons for the
problem
Directors in the Corporations Law company owe
their fiduciary duties to 'the company as a whole' and not to any
particular shareholder, whether that shareholder is in a position
to control the company or not.(25) Even the board of a wholly owned
subsidiary company is not bound to comply with the directions of
the controllers of the company.(26) Where a controlling member of a
corporation attempts to dictate informally a course of
action to the board, such a communication is legally ineffective.
The directors are under no duty to obey such a communication, and
indeed would be in breach of their duty if they were to do
so.(27)
Company law has a very simple solution to the
problem of informal communication between the board and
shareholders. Informal communication is tolerated provided that it
does not breach the directors' fiduciary duties. Where company
directors have habitually observed informal directions, the
controller would be considered a 'shadow director' and would be
exposed to any liability that might arise as a result of his or her
actions.(28)
This solution cannot be applied to the statutory
corporation due to its different legal structure. These structural
differences are also the source for much of the uncertainty
surrounding the problem of informal Minister-board communication.
Three key differences may be noted in this regard:
First, the governance structure of the
corporation derives from the combined exercise of both the
legislative power (controlled by the executive in the Westminster
system) and the executive power. Parliament's monopoly over the
legislative power allows it enormous latitude in defining the legal
incidents of the corporation and the general law environment within
which it operates.(29) Significantly, legislation may be used to
determine the division of corporate powers between the board and
Minister and may qualify the fiduciary duty of the directors to
'the corporation as a whole'.(30) This aspect of the statutory
corporation's governance package deprives it of the benefit of the
minimum company law norm regulating the flow of informal
principal-agent communication, viz, such communication is
permissible provided that it does not undermine the fiduciary
duties of the directors.
Secondly, the statutory corporation
necessarily falls within the ambit of the doctrine of responsible
government.(31) As will be seen below,(32) the precise character
and content of this relationship of accountability is unclear. But
its existence may require a Minister who has been assigned
responsibility for a corporation to intervene in its affairs in a
manner not permitted to the shareholder of a private company. The
demands of responsible government may also generate additional
informational needs (and associated costs) not experienced by a
shareholder private principal which might cut across fiduciary
obligations regarding the confidentiality of corporate
information.
Thirdly, the executive is by its very
nature engaged in the pursuit of multiple and often conflicting
objectives. Within the statutory corporation, this internal
conflict is realised in the interplay between corporate profit
objectives, corporate non-profit objectives (e.g. the provision of
loss-making services for reasons of social policy) and
extra-corporate objectives (e.g. the conformity of corporate action
to the government's foreign policy and employment policy). The
pursuit of these objectives might be directed by different parts of
the executive each of which is concerned with a particular
policy,(33) or by the same part of the executive in response to
electoral pressures.
The inherent insecurity of the executive's term
of office(34) may force it to influence the corporation in a
direction which conflicts with the statutory corporation's own
perception of its objectives. By contrast, the problem of a
shareholder attempting to dictate to the board of a company a
non-profit or extra-corporate objective, rarely arises in the
Corporations Law company. Large proprietary companies are
fundamentally driven by the profit motive. The law has responded
accordingly, by embodying the understanding that a director's
fiduciary duties may be breached if he or she puts a wider notion
of corporate social responsibility before the financial interests
of the company.(35) This aspect of the directors' fiduciary duty is
of little utility to the statutory corporation in circumstances
where it is directed to pursue non-profit or extra corporate
goals.
Ministerial powers of direction as a
solution
Attempts to regulate informal Minister-board
communications have foundered on a basic conflict between the need
to delegate decision-making to an agent, while preserving the
principal's capacity to intervene when it chooses
In Australia, Parliaments have turned to the
grant of statutory powers of ministerial direction.(36) Although
the device has been used in legislation enabling corporations for
quite some time, there has been a dramatic increase in its use over
the past fifteen years.(37) This has been accompanied by the growth
in manner and form guidelines for the use of such powers.(38) The
most important reason for this development is the influence of
managerialism in the restructuring of the public sector. While
government has withdrawn from the control of operational detail in
statutory corporations and departments, entrusting such control to
senior public sector management, it still requires devices such as
the ministerial direction in order to exercise control over this
detail as the need arises.(39)
The statutory directions power is also a means
for limiting informal Minister-board communication. These
provisions are an attempt to divert informal principal-to-agent
communication into a transparent formal channel and aim at
discouraging (informal) communication outside this channel.
The legislative results have been varied.(40)
Statutory powers of direction range from the grant of a broad
discretionary power of direction over the entire breadth of a
corporation's activities to more limited powers circumscribed to
particular corporate functions or transactions. In some
circumstances, the corporation's compliance with the ministerial
direction is mandated, but the corporation is granted indemnity
from any legal liability that might arise from the implementation
of the direction.(41) Yet another variation is the imposition of an
obligation upon the statutory corporation to comply with government
policies notified to it by the Minister,(42) a formulation which
raises the difficult legal question of how the board is to
determine the precise content of the policy and its application to
the matters before it.(43)
These provisions no doubt offer guidance in
determining which ministerial communications to the corporation
fall squarely within or without the channel of communication
delineated by Parliament. Yet the experience of statutory
corporations-as with other, less autonomous parts of the
bureaucracy-comprises many incidents which resist this neat
dichotomy. The Minister might attempt to use the statutory power to
direct the corporation on matters not covered by the power; or the
principal may communicate its desire for a particular outcome, but
refrain from an (otherwise valid) exercise of the statutory power
in order to achieve it.
A further difficulty with directions provisions,
is their interpretation by the courts. As will be seen in the
remainder of this paper, when these provisions are litigated,
judges will not only have to decide questions such as 'How closely
did Parliament intend the statutory corporation to be controlled by
the executive?'. They may also have to answer the questions 'In
what manner ought the executive be accountable to Parliament for
its activities?'. The second question forces the interpretation of
directions provisions into the murky constitutional understandings
of the requirement of a system of responsible government.
It is clear that the affairs of the statutory
corporation must be conducted within the framework of responsible
government. What such a proposition entails in practice is
disputed. Traditionally, there was an expectation that the
requirements of responsible government could be met through the
principle of ministerial responsibility-whether such a requirement
be imposed by the Commonwealth Constitution or not. But this may no
longer be an adequate way of addressing the question. The manner in
which this question is resolved is important for the interpretation
of a Minister's powers of direction over a statutory
corporation.
The meaning of responsible
government
It is now clear that the system of government
established by the Commonwealth Constitution is based on the
assumption of responsible government. There had always been support
for this proposition in constitutional jurisprudence,(44) but the
matter was put beyond doubt in Lange v ABC (1997) 145 ALR
96, a case which considered the implied constitutional right to
freedom of political speech and its relationship to the law of
defamation. In a unanimous judgment, the High Court identified the
sections of the Constitution which prescribed a system of
representative and responsible government. The sections said to
support the system of responsible government were sections 6, 49,
61, 62, 64 and 83 of the Constitution.(45)
Section 61 of the Constitution vests executive
power in the Queen and declares it to be exercisable by the
Governor-General. The power 'extends to the execution and
maintenance of this Constitution, and of the law of the
Commonwealth'. Section 64 empowers the Governor-General to appoint
Ministers to administer the departments of State of the
Commonwealth, makes such Ministers members of the Executive Council
(established under section 62) and requires such Ministers to be
elected representatives. Section 83 ensures that the legislature
controls supply, while section 6 requires that there be a session
of the Parliament at least once in every year. Section 49 'provides
the source of coercive authority for each chamber of the Parliament
to summon witnesses, or to require the production of documents,
under pain of punishment for contempt'.(46) Finally, these sections
must be read in conjunction with those constitutional provisions
which establish a system of representative government.(47)
There has never been agreement as to the precise
components of a system of responsible government and it is beyond
the purpose of this paper to review the voluminous debate on this
matter.(48) Earlier scholarship on the requirements of responsible
government generally moved from the same sections of the
Constitution identified in Lange in order to state that
responsible government in Australia contains at least the following
elements:(49)
-
- Ministers have to be members of Parliament.
- Ministers require a majority in the popular House of the
Parliament to hold office.
- The Houses of the Parliament (presumably the popular Houses)
can be dissolved before the expiration of their maximum terms.(50)
- Public servants must have different tenures from their
Ministers.
The High Court did not seek to define
responsible government exhaustively; thus, the precise identity of
all the system's components remains to be determined. Yet
Lange establishes an account of responsible government
which is potentially broad enough to encompass the totality of
Parliament's formal relationship with the executive.(51) If the
logic of the court's analysis is followed, the system of
responsible government might extend to all formal instruments which
Parliament may use to inform itself about, and exercise influence
over, the affairs of the executive.
In relation to the affairs of statutory
corporations, these instruments will typically include
Parliamentary Inquiries(52) and Committees such as the Joint
Committee of Public Accounts, the Senate's Legislative Committees
and the Senate Standing Committee on Finance and Public
Administration.(53) One might speculate as to whether the
activities of the Auditor-General might eventually be contained
within a judicially recognised theory of responsible
government.(54)
The principle of ministerial
responsibility
The principles of individual and collective
ministerial responsibility to Parliament are components of our
system of responsible government. They are based on conventions of
political practice which are nevertheless said to be entrenched in
the Constitution by sections 62 and 64.(55)
Collective ministerial responsibility refers to
the shared responsibility of the ministry as a whole to accept that
its tenure as a government is conditional upon the 'confidence' of
the House.(56) Individual ministerial responsibility, in its
broadest sense, refers to the Minister's accountability to
Parliament, under which the Minister is fixed with liability for
the conduct of policy within his or her department and the acts or
omissions of officials within it.
Although it is common to associate the
convention of (individual) Ministerial responsibility with
Ministerial resignation, it is clear that this is only the most
extreme remedy in an ascending scale of liability and corresponding
remedy. Many commentators have noted the gradual erosion of the
convention and the increasing rarity of ministerial
resignations.(57) Where the Minister has no control or supervisory
authority over a body, no accountability is expected.(58) Once such
supervision or control is granted, Ministerial responsibility may
operate in various modes.(59) The convention may merely mean (a)
that the Minister has an obligation to redirect a parliamentary
question to the relevant official within the portfolio and to
ensure that an answer is produced. But it usually means that the
Minister has an obligation (b) to report to Parliament
what has happened, or (c) to explain what has happened, or (d) to
make amends for what has happened or finally, that the Minister has
an obligation (e) to resign over what has happened.
Ministerial responsibility is the traditional
means by which Parliament secures the accountability of the
statutory corporation to both the executive and the Parliament. But
it is not the only means.
The uncertain requirements of
responsible government for statutory corporations
Lange has provided assurance that
statutory corporations fall within the ambit of responsible
government. It followed from the court's analysis of the
Constitution that there were implied limitations on the
Commonwealth's legislative and executive power to exclude
parliamentary oversight of the affairs of statutory corporations
('authorities'):
[T]hose [constitutional] provisions which
prescribe the system of responsible government necessarily imply a
limitation on legislative and executive power to deny the electors
and their representatives information concerning the conduct of the
executive branch of government throughout the life of a federal
parliament. Moreover, the conduct of the executive branch is not
confined to Ministers and the public service. It includes the
affairs of statutory authorities and public utilities which are
obliged to report to the legislature or to a Minister who is
responsible to the legislature. In British Steel v Granada
Television [1981] AC 1096 at 1168 Lord Wilberforce said that
it was by these reports that effect was given to `[t]he legitimate
interest of the public' in knowing about the affairs of such
bodies.(60) (emphasis added).
That which remains uncertain is the character of
the institutional arrangements that would satisfy the requirements
of responsible government and indeed whether these requirements
might displace Parliament's choice of a particular arrangement. The
court has not provided a firm answer to the question 'Is
ministerial responsibility indispensable for the accountability of
statutory corporations'?
This brief passage from Lange would
appear to suggest that the assignment of ministerial responsibility
to a portfolio is not a necessary implication from the theory of
responsible government. Parliament may choose to bypass the
Minister by requiring that the statutory authority report directly
to it. The passage is also ambiguous as to whether all
statutory authorities and public authorities are obliged to report
to Parliament or the Minister, or whether such a practice is
restricted to those 'statutory authorities and public bodies
which are obliged [by legislation or delegated
legislation] to report'. If the latter interpretation is adopted,
it is conceivable that some bodies might meet Parliament's
informational requirements through means other than periodic
reporting back to Parliament or the Minister.
Is ministerial responsibility for a
statutory corporation required by the Constitution?
As Lange provides limited guidance on
the requirements of responsible government for the statutory
corporation, it is useful to review earlier academic opinion on the
question and then attempt to structure the emerging views of the
courts in the light of this work.
The view of
academics
An early and quite authoritative summary of the
different views on the role of section 61 in respect of the
accountability of statutory corporations (or 'authorities') is that
offered to the Senate Standing Committee on Finance and Government
Operations by Finn and Lindell in 1982.(61) Reviewing the meagre
case law and academic writings, the authors identified three main
positions:
-
- Parliament may create statutory authorities ('corporations'),
but it is contrary to section 61 to vest the executive power of the
Commonwealth in such authorities without making them subject to
ministerial control. Ministers have reserve non-statutory powers to
issue binding directions to authorities.(62) Finn and Lindell
described this view as implausible.
- Parliament may create statutory authorities, but in vesting
them with the executive power of the Commonwealth, some 'residual
function' inheres in the Governor-General under section 61. This
may be discharged by either:
-
- A ministerial responsibility in relation to the 'execution' of
the parent statute which arises from a combination of the principle
of ministerial responsibility (derived from outside section 61) and
the executive's responsibility for the maintenance of the laws of
the Commonwealth under section 61. According to this view, a
legislative scheme is unconstitutional if it positively precludes a
Minister from supervising an authority.(63)
- The assignment of a Minister to the administration of an
authority's parent statute under the Administrative Arrangement
Orders. If the parent legislation does not accord to the Minister's
actual responsibilities in the exercise of the authority's
function, then there is no such responsibility. The Minister is
simply the person to whom Parliament can look when questioning the
authority, the person to whom the Governor-General will look for
advice concerning the authority and the person who is charged with
initiating and enforcing changes to the parent statute. This would
appear to suggest that 'redirectory' ministerial responsibility for
a statutory corporation might be acceptable.(64)
- Parliament may create statutory authorities but need not vest
responsibility for the authority in the executive government under
section 61. This is because Parliament may either override section
61, or alternatively because the vesting of independent functions
in the authority involves no exercise of the executive power of the
Commonwealth. To the extent that the authority is independent,
there is no ministerial responsibility for the authority. It is for
Parliament itself to determine the manner and extent of its
accountability.
Finn and Lindell rejected the first view
outright and suggested that views (2)(b) and (3) would commend
themselves to the judiciary as the most plausible approaches to the
constitutional basis for the accountability of statutory
authorities. In rejecting view (2)(a), the view which located some
'residual' ministerial responsibility in section 61, the authors
suggested that it was 'within the province of Parliament in
allocating functions to non-departmental agencies, to override that
principle in a particular legislative scheme if that scheme falls
within a head of Commonwealth legislative power.'(65) The authors
concluded that the principle of ministerial responsibility 'has no
necessary part to play' in the creation of independent statutory
authorities; Parliament could simply legislate to provide this, if
it so pleased. It was for Parliament to 'ordain the nature and
limits of the authority's independence from and accountability to
Parliament'.(66)
Winterton's study of the executive power(67)
lends support to view (3) on an alternative basis, namely that
nothing in section 61 indicates that the government is to be the
sole executor of Commonwealth legislation. There is therefore no
limitation on the Parliament's discretion to specify an autonomous
statutory corporation to execute Commonwealth legislation.
Winterton rightly distinguishes between the 'good political sense'
that might lie behind the use of ministerial responsibility for
statutory corporations and the open possibilities contained in
section 61. After all, if Parliament requires ministerial
responsibility, it can pass a law to enforce it.(68)
The precise position of government-controlled
Corporations Law companies within the schema of responsible
government is more difficult to define. The question to be posed
is: 'Are the provisions of the Commonwealth Authorities and
Companies Act 1997 (Cth) exhaustive of the requirements of
responsible government?'.
The emerging view of the
courts
The rejection of views (1) and (2)(a) and the
endorsement of views (2)(b) or (3) appear to accord with the
expansive view of responsible government in Lange. It is
also consistent with the manner in which the High Court disposed of
Horta v Commonwealth (1994).(69)
In Horta, the Court upheld, under the
foreign affairs power (section 51(xxix) of the Constitution),
legislation giving effect to a bi-lateral mining treaty with
Indonesia.(70) The legislation conferred upon a vaguely defined
Joint Authority the 'exercise of the rights and responsibilities of
Australia' in relation to activities conducted under the treaty.
(71) Australia shared control over the Joint Authority with the
Indonesian government.(72) According to the High Court, there was
'nothing in the Constitution which preclud[ed] the conferral of any
Executive power' upon the Joint Authority.(73)
Similar concerns regarding the constitutionality
of Commonwealth-State intergovernmental bodies which, in part,
exercise the executive power of the Commonwealth without being
subject to control or direction by the Commonwealth, also appear to
have been relegated to the margins of constitutional law
debate.(74)
However, as will be indicated below,(75) the
Federal Court decision in Hughes, seems to have adopted a
stronger but narrower view, perhaps more in line with views (1) and
(2)(a).
Given the fluidity in the contemporary judicial
understanding of the system of responsible government, how is a
theory of responsible government to be employed in the construction
of statutory powers of ministerial direction? If a court is to
apply an expansive view of responsible government-as it now
must-how is it to contextualise a particular instrument of
accountability, such as ministerial responsibility, within the
whole range of accountability instruments that are available within
the system?
It appears that courts have taken two approaches
to the use of a theory of responsible government when interpreting
ministerial powers of direction-a strong and a weak approach. These
approaches strike a different balance between parliamentary
intention and constitutional requirements in the design of
accountability mechanisms for statutory corporations.
Litigation context
Ministerial directions provisions are rarely
litigated, as the problems emerging from the use or abuse of the
statutory power are often resolved through political means. But
such provisions have been considered in actions brought by third
parties. This litigation falls into three main categories:
-
- the judicial review of the Minister's exercise of the statutory
power
- the judicial review of the validity of an administrative act
performed by the statutory corporation in compliance with a
ministerial direction made under the power, and
- litigation on another point of law (such as the liability of a
statutory corporation for breach of contract) in which the court
might consider a ministerial direction, or action performed in
conformity with it, as a relevant matter (e.g. as a cause of the
contractual breach). The litigation in Hughes Aircraft Systems
International v Airservices Australia (1997) 146 ALR 1 falls
into this third category.
The interpretative choices
As the statutory corporation is the direct
creature of Parliament's will, features of its governance structure
such as a directions power fall to be determined by reference to
the enabling statute.(76) Whether through 'literal' or 'purposive'
constructions of the parent legislation, or some combination of
both,(77) the conventional techniques of statutory interpretation
aim at eliciting Parliament's intention.
With the increasing judicial recognition of the
system of responsible government as a constitutional assumption,
two basic approaches have emerged in the interpretation of
ministerial directions powers. Each of these reflect different
approaches to the manner in which the theory of responsible
government may be used by the courts.(78)
The first approach ('the weak form approach') is
to persist in giving effect to Parliament's intention by
recognising responsible government as an interpretative field
against which Parliament's intention might be construed.
The second, 'strong form approach', is to turn
from the silence of the statute on the precise point (e.g. whether
the Minister may intervene in a board decision regarding the award
of a tender) to a construction which gives direct effect to the
principles of responsible government. Hughes v Airservices
Australia appears to have adopted the strong form approach, by
attempting to give a constitutional basis to the principle of
ministerial responsibility which was then directly applied to the
construction of the directions power.
If one uses the principles of responsible
government as a background interpretative field that may assist in
determining Parliament's intention, there is, in given
circumstances, clear scope for recognising that Parliament intended
authority over a particular form of decision-making to be vested in
a board independent of ministerial control. Conversely, if one
seeks to give direct effect to the principles of responsible in a
ministerial directions power, any board decision will
always be subject to the possibility of ministerial
intervention. For according to the strong form approach in
Hughes, there can be no other way in which the Minister
may satisfy his or her responsibility to Parliament. Some of the
difference between these approaches may be traced to different
views about the content of the theory of government.
Parliamentary intention and the
weak form approach
An examination of the case law on ministerial
directions displays judicial allegiance to conventional techniques
of statutory interpretation and a reticence to embrace a more
general theory regarding responsible government. This represents
the weak form approach to responsible government as a tool of
statutory interpretation.
These cases arise in two contexts: the judicial
review of the Minister's exercise of a statutory power to direct
the corporation,(79) and the judicial review of the validity of an
administrative act performed in compliance with a ministerial
direction.(80) Such reflection as may be found on judicial
methodology within the case law points to the adoption of both
'literal' and 'purposive' constructions of Ministerial directions
powers. Reference to the system of responsible government is at
most a background consideration which might support the process of
statutory interpretation.
Literal
construction
The literal approach is illustrated by
Aboriginal Development Commission v Hand (1988) 15 ALD
410, a case which considered a statutory provision that the
Commission (a statutory corporation) 'shall perform its functions
and exercise its powers in accordance with such general
directions as are given to it by the Minister in writing'.(81) The
court noted the wide variation in the terms of ministerial
directions powers enacted by Federal Parliament and indicated that
it was impossible to establish a general formula for their
interpretation. Some instances of legislative phrasing enabled
ministers to make directions with respect to particular cases and
problems. Other phrasing restricted these powers to more 'general'
directions(82) which operated like binding guidelines. The 'general
direction' provision in this case was construed as a guideline
which did not permit the Minister to direct the statutory
corporation with regard to the outcome of particular decisions.
This literal approach to statutory
interpretation allows greater scope for Parliament's choice of the
precise manner in which it will make the executive accountable to
it. The provision is construed within the four corners of the
statute. The system of responsible government appears only as a
faint backdrop which may assist, but not fully determine, the
judge's construction of the statute. In this case, the
particular directions provision was found to
reflect the understanding that the Minister would be
responsible for the activities of the corporation. But this finding
was not strong enough to support the Minister's power to intervene
in day-to-day operational matters.
This approach was followed by the Full Federal
Court in Aboriginal Legal Service Ltd v Minister for Aboriginal
and Torres Strait Islander Affairs (1996) 45 ALD 235. Here,
the court again rejected any prior understandings as to the manner
in which Parliament chose to define its relationship with statutory
corporations. It considered and rejected the suggestion that a
ministerial power to give 'general' directions should be read down
'in order to preserve to the [statutory corporation] a
pre-determined zone of autonomous decision-making, free from
ministerial interference'.(83) The extent of the corporation's
decision-making autonomy could only be determined by reference to
the statute.
Purposive
construction
The Full Federal Court decision in New South
Wales Farmers' Federation v Minister for Primary Industries and
Energy (1990) 21 FCR 332 illustrates that the 'purposive'
approach to the construction of ministerial directions powers is
equally devoid of any traces of a theory of responsible government.
This case concerned the Minister's statutory power to give
directions, in 'exceptional circumstances', to the Wool Corporation
concerning the performance of its functions and exercise of its
powers.
The provision was construed by reference to the
Wool Marketing Act 1987 (Cth) which established the
corporation and a regulatory regime for the marketing of wool. In
this context, the court considered the national interest in giving
effect to a decision-making process which would determine the price
of Australian wool. The particular regulatory regime featured so
prominently in the court's construction of the Minister's 'reserve
power' of direction that it refused to follow the construction of a
directions power in a previous case, on the ground that the earlier
case involved the construction of a statute regulating transport
services.(84)
The importance of regulatory purpose in the
construction of directions powers has also meant that courts are
willing to consider the legislative history of the allocation of
authority over decision-making within a portfolio in circumstances
where the meaning of the statutory provision is unclear.(85) In
cases decided according to the purposive method of statutory
interpretation, there has been even less need to have recourse to a
theory of responsible government.
Strong form
approach
The strong form approach to responsible
government in the interpretation of ministerial powers of direction
is illustrated by the decision in Hughes v Airservices
Australia. The decision merits particular attention, due to
the apparent attempt to establish ministerial responsibility as a
constitutional requirement for the statutory corporation. It is
argued that the strong form approach might lead to judicial
inflexibility in regard to accountability arrangements for
statutory corporations which rely only minimally on ministerial
responsibility.
Hughes v Airservices
Australia
The Hughes case involved a successful
challenge by a tenderer against the award of a government contract
to its commercial rival. The contract was for the supply of a
nationally integrated air traffic control system to replace older
systems operating in various Australian centres. The contract was
awarded by the Civil Aviation Authority ('the CAA'), a Commonwealth
statutory corporation established under the Civil Aviation Act
1988 (Cth).(86) The court found that the tender offer breached
the terms of a 'process contract' governing the tender evaluation
procedure up to the award of the contract.
The main contribution of Hughes to the
law, is the development of a new doctrine of contract law
concerning tender processes. But during the course of a long and
complicated trial, the court also considered the issue of informal
communication between Minister and board. This occurred in two
contexts: first, in relation to two letters sent by the portfolio
Minister and another Minister to the Chairman of the Board and the
Chief Executive Officer which 'intimated' the government's
preference for one of the tenderers on the basis of its better
performance on a tender evaluation criterion regarding Australian
industry involvement: and second, the CEO's unsolicited disclosure
to the Minister of details of the rival tenders prior to the
board's determination of the tender result.
The court interpreted both the Minister's
statutory power of direction and the Minister's right to access
confidential corporate information by taking a strong form approach
to the requirements of responsible government.
The strong form approach to
responsible government in Hughes
Finn J expressly recognised that other aspects
of the CAA's parent statute addressed its accountability to
Parliament. These included the presentation to the Minister of
corporate plans, financial plans and annual estimates, the board's
duty to notify the Minister of events which might prevent or
significantly affect achievement of the CAA's corporate objectives
or financial targets and the Minister's power to approve or vary
the board's recommendation of the dividend to be paid to the
Commonwealth. Other accountability mechanisms included the CAA's
subjection to audit by the Auditor-General under the Audit Act
1901 (Cth) and its accountability to various committees of the
Parliament.(87)
However, these means of accountability were
de-emphasised in favour of the accountability provided by the
Minister's overarching responsibility to account to Parliament for
the affairs of the corporation:
...central to the public accountability of
corporations so circumstanced under their legislation as was the
CAA, was - and is - their accountability first to executive
government through their respective Minister, and then to
parliament via that Minister. It is the Minister to whom questions
in parliament are directed; it is the Minister who, within the
government, is given portfolio responsibility for the corporation
and its legislation; it is the Minister who, in the CAA Act itself,
is given both specific oversight powers and a general and specific
direction powers. In such a setting - statutory and constitutional
- the Minister should be taken as having a general
right to obtain information from the CAA in virtue both of his
relationship to parliament and to the authority, and of its
accountability to government, the parliament and the public via the
Minister(88) [emphasis added]
The importance assigned to ministerial
responsibility amongst the many alternative ways in which the
requirements of responsible government might be met appears to have
flowed from Finn J's implicit support of the view that ministerial
responsibility over the conduct of a statutory corporation was
required by section 61 of the Constitution.(89)
It has been indicated (see pp11-13 above) that
this approach to section 61 of the Constitution is not in keeping
with academic views of the section and that which can be implied
indirectly from the High Court decisions of Lange and
Horta. As there are no direct judicial pronouncements on
the subject, the statements in Hughes are rather
important. Moreover, they issue from a judge whose academic
scholarship on the subject of statutory corporations is as
extensive as it is highly regarded.(90)
This approach, in turn, led to some rather
striking results, in relation to (i) the permissible content of a
ministerial direction and (ii) the confidentiality of board
matters.
(i) The permissible content of a
ministerial direction
In Hughes, the parent statute gave the
Minister a wide power of direction over the CAA. The court found
that the portfolio Minister's letter could not be construed as a
direction, for it was not exercised in the formal manner required
by the statute.(91) The communication was therefore legally
ineffective. However, the court described the letter as 'highly
imprudent' and 'offensive' to Parliament's intention to protect the
corporation from the Minister's control.
The court construed the Minister's power of
direction broadly. Thus, provided the Minister used the directions
power in the appropriate formal manner, he or she had 'the italics
right to communicate with the board on any matter concerning the
affairs of the CAA' provided the direction was exercised in the
appropriate formal manner. (92) The Minister could therefore direct
a particular outcome, such as the award of a tender. This power
existed despite the fact that its use might give rise to 'political
difficulties' for the government or expose the CAA to liability.
The latter possibility was clearly a reference to (at least one
version of) the doctrine of executive necessity which allows the
Crown to break a contract in order to implement government policy
without being subject to the full range of remedies granted to a
standard plaintiff for breach of contract.(93)
Although the court might have also arrived at
the same construction of the directions power through a weak form
approach to responsible government, its emphasis on ministerial
responsibility led it to sideline some important statements of
Parliamentary intention regarding the extent of ministerial
control. One of these was a second reading speech of an amending
statute which suggested that Parliament had decided to shift
responsibility for operational matters, such as the approval of
individual contracts, from the Minister to the board. The speech
had stated that:
In line with the philosophy of moving from
[government] oversight of day to day operations to an emphasis on
results and board accountability, the bill removes a range of day
to day controls exercised by government, including controls over
the terms and conditions of individual borrowings, the approval
of individual contracts, the purchase of shares and the
establishment of subsidiaries and partnerships. These are now
appropriately the responsibility of the board. (94) [emphasis
added]
Finn J acknowledged that 'the Minister's
intention [in the Second Reading Speech] was ...realised' in the
amending statute and that the Minister 'subsequently was to act on
the assumption that the board was 'responsible for... handling day
to day management'.(95) Indeed both the text of the ministerial
letters and the occasion for their writing support this
conclusion.(96)
If a weak form approach to responsible
government had been adopted, it appears possible that a more
complex picture of Parliament's intended allocation of
decision-making between Minister and board would have emerged.
(ii) The confidentiality of board
matters
In Hughes, the adoption of the strong
form approach to responsible government also necessitated a wide
interpretation of the Minister's informational rights. Quite apart
from any specific statutory provisions that might require the
disclosure of corporate information to the Minister, the court
found that the Minister was entitled to obtain any corporate
information he or she required in order to maintain his or her
accountability to Parliament. No distinction could be drawn between
particular forms or classes of information that could or could not
be sought and obtained. The Minister was thus entitled to view the
details of the tender bids.
From the board's standpoint, board members were
under a duty to disclose corporate information if requested by the
Minister-even where the information was confidential. If such a
disclosure would prejudice the interests of the corporation, it
would still have to be made, but subject to some deliberation 'at
least to the extent of ensuring that the Minister was fully
appraised of the possible implications' for the corporation of
compliance with the request.(97) In the absence of a ministerial
request, the need to deliberate would be far greater. The directors
would have a duty to have proper regard to the interests of the
corporation and would need to weigh the reasons for disclosure
against the need to maintain confidentiality. Disclosure in these
circumstances would be an 'exceptional' event.(98)
Third parties who contracted with government
agencies 'must be taken to have done so subject to such lawful
rights of access to information in the agency's hands as our laws
and system of government confer to others'.(99)
It is worth contrasting these findings with the
regulation of confidential corporate information in the private
company, i.e. a company incorporated under the Corporations Law
rather than one created by statute. In the private company,
directors are not free to communicate to members information which
might detrimentally affect the company. The ambit of this rule
includes 'nominee directors' whose duties towards the company are
attenuated by contractual agreements between the company and the
appointor.(100) Third parties who impart confidential information
to a company under a contractual relationship are not taken to have
agreed to the communication of this information to the company's
controller. Such a disclosure would place the company in breach of
its obligations to the third party(101) and directors who have
occasioned such a breach of contract may indeed have breached their
fiduciary duty to the company.
The contrast between the statutory corporation
and the Corporations Law company illustrates how the doctrine of
responsible government can cut across the standard understandings
of the corporate law model. The manner in which it does so, may, in
the future, be determined more and more by the approach judges take
to the requirements of responsible government.
Responsible government and
historical change - the problems of a strong form
approach
The utility of a theory of responsible
government in constitutional and statutory interpretation lies in
its flexibility and its ability to adapt to new circumstances.(102)
This characteristic was recognised by the framers of the
Constitution in two ways. First, in the openness with which they
canvassed rival models of responsible government while attempting
to reconcile federalism with the divergence in executive practices
which had already emerged between Britain and its colonies.(103)
Secondly, in their refusal to entrench their understandings of
responsible government in the text of the Constitution.(104)
A strong form approach to the theory of
responsible government inhibits the theory's inherent flexibility
by threatening to constitutionalise what can only be
particular, and historically specific understandings of the
'working' Constitution.(105) Thus to mandate the application of a
principle such as ministerial responsibility to the conduct of the
affairs of statutory corporations is to frustrate Parliament's
ability to establish accountability structures for the conduct of
executive government that afford monitoring and oversight
capacities more appropriate to contemporary social and economic
realities.
The necessity of a flexible understanding of the
requirements of responsible government has been borne out by
political history. While the minimal formal characteristics of the
Commonwealth Executive under the Constitution have remained
relatively fixed since Federation, the 'efficient' or 'working'
constitution has produced a variety of administrative arrangements
for the conduct of government.(106) The withdrawal of the
Commonwealth Executive from day-to-day operational control of many
of its Government Business Enterprises since the mid-1980s,(107)
and the introduction of private sector corporate governance
techniques through legislation such as the Commonwealth
Authorities and Companies Act 1997 (Cth) and the Financial
Management Act 1997 (Cth) are only the most recent examples of
this process.
Ministerial directions provisions reflect a
variety of concerns such as, among other things, the character of
the decision-making, the character of the state's involvement in an
activity, competition and managerial policy.(108) Ultimately, the
extent to which these powers may disrupt the prior statutory
allocation of decision-making between Ministers and the boards is a
matter in which Parliament's intent is to be given its fullest
effect before assistance is sought from understandings of
responsible government which would apply across the board,
regardless of the particular character and locus of executive
activity.
This Research Paper has identified the source of
uncertainty regarding Minister-board communications in those
features of the governance structure of the statutory corporation
which are most strongly determined by the location of the Minister
within the political system. Attempts to regulate these
communications must satisfy two conflicting needs- the political
principal's need to delegate decision-making to an agent and the
principal's need to preserve its capacity to intervene in the
agent's decision-making. The enactment of ministerial directions
provisions does not resolve these difficulties, as their
interpretation forces this conflict onto a terrain where rival
views of responsible government and its constitutional
underpinnings may hold sway.
The paper has identified two approaches-a strong
and a weak form-to the use of a theory of responsible government in
the interpretation of ministerial directions powers and has
assessed their relative merits on the basis of a detailed
examination of the remarkable facts of the Hughes case.
The strong form approach has been shown to lack constitutional
foundation. It is also shown to harbour the danger of an undue
emphasis on a particular form of relationship between Parliament
and the executive, that of ministerial responsibility. Such an
emphasis might frustrate the ability of Parliament to create and
enjoy other forms of executive accountability mechanisms which
might better accommodate the changed nature of contemporary social
and economic phenomena. Parliament's choice of private sector style
corporate governance techniques for statutory corporations is but
one example. The ability of a theory of responsible government to
remain flexible is critical to the evolution of the working
Constitution.
-
- Lange v Australian Broadcasting Authority (1997) 145
ALR 96, to be discussed in Part 2 of this paper.
- The term 'perpetual succession' expresses the idea that the
artificial legal person created by the statute cannot die unless
through the operation of a 'sunset' clause within the parent
statute, or through the repeal or amendment of the statute which
provides for its termination.
- The practice has common law origins of considerable antiquity:
S. J. Stoljar, Groups and Entities: An Inquiry into Corporate
Theory (1973), Ch. 9; Archbishop of Perth v 'AA' to
'JC' (1995) 18 ACSR 333; E. H. Kantorowicz, The King's Two
Bodies: A Study in Medieval Political Theology (1957); F. W.
Maitland, 'The Corporation Sole' (1901) 17 LQR 335. For an
early example in the Commonwealth sphere, see the incorporated
Railway Commissioner created under the Commonwealth Railways
Act 1917 (Cth) and considered by the High Court in Watson
v Collings (1945) 70 CLR 51.
- A (non-exhaustive) list of Commonwealth statutory corporations
may be found in Senate Finance and Public Administrations
Legislation Committee, List of Commonwealth Bodies (1995).
- R. Wettenhall; 'Corporations and Corporatisation: An
Administrative History Perspective (1995) 6 Public Law Rev
7; I. Beckett, 'Public Enterprise Boards in Australia' in J.
Corkery, C. O'Nuallain & R. Wettenhall (eds), Public
Enterprise Boards-What They are and What they do: Reports from an
International Study (1994), 172; G. Sawer, 'The Public
Corporation in Australia', in W. Friedmann (ed), The Public
Corporation: A Comparative Symposium (1954), Ch. 1; G. Sawer,
'Ministerial Responsibility and Quangos', in G.R. Curnow & C.A.
Saunders, Quangos: The Australian Experience (1983),
73-81. For a sample of early literature on Australian statutory
corporations see: F. W. Eggleston, State Socialism in
Victoria (1932).
- See: Department of Finance, Governance Arrangements for
Commonwealth Government Business Enterprises (June 1997) and
R. Humphry, Review of GBE Governance Arrangements
(Department of Finance, March 1997).
- Established respectively under the following enactments:
Science And Industry Research Act 1949 (Cth);
Broadcasting Services Act 1992 (Cth); Special
Broadcasting Service Act 1991 (Cth); Australian Trade
Commission Act 1985 (Cth) and the Primary Industries and
Energy Research and Development Act 1989 (Cth) in conjunction
with the Grains Research and Development Corporation
Regulations 1990 (Cth).
- Under the Corporations Law, s.45A(3):
A proprietary company is a large proprietary
company for a financial year if it satisfies at least two of the
following paragraphs:
-
- the consolidated gross operating revenue for the financial year
of the company and the entities it controls (if any) is $10 million
or more
- the value of the consolidated gross assets at the end of the
financial year of the company and the entities it controls (if any)
is $5 million or more
- the company and the entities it controls (if any) have 50 or
more employees at the end of the financial year.
A small proprietary company is a company that
falls beneath this threshold: s.45A(2).
- For example, Commonwealth Authorities and Companies Act 1997
(Cth), Pt 3.
- Lange v Australian Broadcasting Authority (1997) 145
ALR 96 at 107; G. Lindell, 'Parliamentary Inquiries and Government
Witnesses' (1995) 20 MULR 383 and E. Campbell, 'Parliament
and the Executive' in L. Zines (ed), Commentaries on the
Australian Constitution (1977) Ch. 3. at pp 90ff. Wettenhall
has examined political control techniques exercised over statutory
corporations, see note 5 above, esp. at 28-9.
- Whether the decision is of an administrative character under an
enactment for the purposes of Administrative Decisions
(Judicial Review) Act 1976 (Cth), s.3(1) and Australian
National University v Burns (1982) 43 ALR 25 (decision under a
contract); General Newspapers Pty Ltd v Telstra
Corporation ; (1993) 117 ALR 629 (decision to enter a
contract). See generally M. Allars, 'Private Law But Public Power:
Removing Administrative Law Review From Government Business
Enterprises' (1995) 6 PLR 44 and M. Aronson & B. Dyer,
Judicial Review of Administrative Action (1996) at 49ff.
Note the murkier area of the common law basis of review:
Mercury Energy Ltd v Electricity Corporation of New Zealand
Ltd [1994] 1 WLR 2; P. Bayne, 'The Common Law Basis of
Judicial Review' (1993) 67 ALJ 780 and M. Taggart,
'Corporatisation, contracting and the courts' (1994) Public
Law 351.
- See generally M. Aronson and B. Dyer, note 11 above, Ch 12.
- For example, State of South Australia & State Bank of
South Australia v Marcus Clark (1996) 19 ACSR 606.
- Freedom of Information Act 1982 (Cth), s.4 (definition
of 'prescribed authority') s.7 & Sch 2 (schedule of excluded
bodies).
- A. H. Hanson, Parliament and Public Ownership (1961);
W. A. Robson, Nationalized Industry and Public Ownership
(1960), T. Prosser, Nationalised Industries and Public Control:
Legal, Constitutional and Political Issues (1986) and D.
Woodhouse, Ministers and Parliament: Accountability in Theory
and Practice (1994) at 20-2.
- United Kingdom, Parliament, Select Committee on Nationalised
Industries Session 1967-68, Ministerial Control of the
Nationalised Industries: First Report (1968), especially Ch
III.
- Ibid. Cf. J. Corkery & R. Wettenhall, 'Public Enterprise
Boards: A Neglected Area of Governance' International Institute of
Administrative Sciences (1990) at 14-5 and C. Mantziaris, 'When the
Minister Leans on the Board: The Forced Resignation of the Managing
Director of Australia's Overseas Telecommunications Commission'
(1997) 19 Asian Jnl Pub Admin 157 at 174-5, 191.
- ABC: J. Rydon, 'The Australian Broadcasting
Commission 1942-48' Public Administration (Sydney) 11
(1952) 190; G. Bolton, Dick Boyer: An Australian Humanist
(1967), Chs 6-9 and most recently E. Simper, 'Alston pressures ABC
on bias' The Australian, 4 May 1998, at 1.
Telecom: R. L. Wettenhall, 'Quangos, Quagos and
the Problems of Non-Ministerial Organization' in G. R. Curnow &
C. A. Saunders, op. Cit., Ch. 5 at 44-5.
OTC: C. Mantziaris, note 17 above.
CASA: J. Short & M. Gordon, 'Howard under
pressure as Sharp admits jobs ploy' The Australian, 13
February 1997.
- S. Bottomley, 'Corporatisation and Accountability: the Case of
Commonwealth Companies' (1997) 7 Aust Jnl of Corporate Law
157 at 170 (intervention is rare) cf documented instances of
Departmental or Ministerial intervention in the cases of AIDC Ltd
(resignation of government directors requested by their Department
to disclose information confidential to AIDC Ltd) and ANL Ltd
(Minister pressuring Board for a quick sale of the entity's assets
as part of a privatisation process): Parliament, Commonwealth of
Australia, Department of the Parliamentary Library, AIDC Sale
Bill 1997: Bills Digest 115, 1996-97, at 1 and Australian
National Audit Office, Matters Relating to Proposed Sale of ANL
Ltd, Audit Report no. 2, 1995-96 and K. Trace, 'You Couldn't
Give it Away': Privatising the Australian National Line' (1996) 2
Agenda 433-44
- In the case of the ABC, the standard allegation over many
decades has been that the Minister has attempted to influence
programming and editorial decisions of the national broadcaster. In
the case of the Civil Aviation Authority, it was alleged that the
Minister had attempted to pressure members of the Board to resign.
A similar allegation has been made in the case of the Overseas
Telecommunications Corporation: see sources cited in note 18.
- P. D. Finn, Law and Government (1987) at 60-1, 97-9,
129-31. Professor Finn has written extensively on the subject of
statutory corporations (see note 90 below) and was appointed to the
bench of the Federal Court in 1995. He decided the Hughes
case, which is discussed in this paper as an illustration of the
strong form approach to the theory of responsible government.
- Select Committee on Nationalised Industries, note 16 above, Ch.
IV.
- Ibid., para 153.
- M. Dornstein, Boards of Directors under Public
Ownership (1988), Ch. 6 and Corkery & Wettenhall, note 17
above.
- Percival v Wright [1902] Ch 2 Ch 421; Bell v Lever
Bros Ltd [1932] AC 161. Exceptions to this rule have been made
in particular circumstances: Coleman v Myers [1977] 2 NZLR
225 and Glavanics v Brunninghausen (1996) 19 ACSR 204.
- Gramophone and Typewriter Ltd v Stanley [1908] 2 KB
89. See also Imperial Hydorpathic Hotel Co Blackpool v
Hampson (1882) 23 Ch D 1.
- H. Ford and R. Austin, Ford and Austin's Principles of
Corporations Law (looseleaf) at paras [8.070-8.190] and P. D.
Finn, Fiduciary Obligations (1977) at paras 111ff.
- As either 'shadow directors': Corporations Law s.60;
Standard Chartered Bank v Antico (1995) 18 ACSR 1; ASC
v AS Nominees (1995) 18 ACSR 459; Re Hydrodam (Corby)
Ltd [1994] 2 BCLC 180; or, in more limited circumstances,
through the vicarious liability of the appointor for the acts of
its nominee while in the course of employment: Dairy Containers
Ltd v NZI [1995] 2 NZLR 30. See generally, P. Koh, 'Shadow
Director, Shadow Director, Who Art Thou?' (1996) 14
C&SLJ 334; J. Pizer, 'Holding an Appointor Vicariously
Liable for its Nominee Director's Wrongdoing-An Australian Roadmap'
(1997) 15 C&SLJ 81 and Justice E. W. Thomas, 'The Role
of Nominee Directors and the Liability of their Appointors' in I.
Ramsay (ed), Corporate Governance and the Duties of Company
Directors (1997), 148-161.
- M. J. Trebilcock & J. R. S. Pritchard, 'Crown Corporations:
The Calculus of Instrument Choice' in MJ Trebilcock & JRS
Prichard, Crown Corporations in Canada: The Calculus of
Instrument Choice (1983), Ch. 1 and M. Horn, The Political
Economy of Public Administration: Institutional Choice in the
Public Sector (1995).
- Legislation (in combination with common law understandings) may
also subsume or separate the corporation from 'the Crown'. See
generally: P. W. Hogg, Liability of the Crown (2nd ed,
1989) S. Kneebone, Tort Liability of Public Authorities
(1998), Ch 7 and N. Seddon, Government Contracts: Federal,
State and Local (1995), Ch. 4.
- Lange v Australian Broadcasting Authority (1997) 145
ALR 96 at 107; British Steel Corporation v Granada
Television [1981] AC 1096 and Hughes v Air Services
Australia (1997) 146 ALR 1 at 24-5, 74, 88-9.
- See pages 8-13 of this paper.
- In the case of government business enterprises, this problem
has led to the demand for central policy coordinating agencies:
'Getting Together in Public Enterprise' in R. Wettenhall and C.
O'Nullain (eds), Getting Together in Public Enterprise
(1987) and Mantziaris, note 17 above at 172-3.
- The instability caused by this 'commitment problem' within
political transactions has been noted by students of the US
Congressional system: Horn, note 29 above at 16-19 and T. Moe,
'Political Institutions: The Neglected Side of the Story' (1990) 6
Jnl Law, Econ & Org 213.
- Hutton v West Cork Railway Co (1883) 23 Ch D 654;
Parke v Daily News Ltd [1962] Ch 927. Within the law of
(private non-charitable) trusts, cf. Cowan v Scargill
[1985] 1 Ch 270.
- For example, Science And Industry Research Act 1949 (Cth),
s.13; Broadcasting Services Act 1992 (Cth), s.162;
Special Broadcasting Service Act 1991 (Cth), s.12;
Australian Trade Commission Act 1985 (Cth), s.10;
Primary Industries and Energy Research and Development Act
1989 (Cth), s.143.
- M. Aronson, 'Ministerial Directions: The Battle of the
Prerogatives' (1995) 6 PLR 77.
- For example, the guidelines suggested in Australian National
Audit Office, Aspects of Corporate Governance: The Australian
Tourist Commission, Audit Report no.10 (1997-98) at 82.
- Aronson, note 37, esp. at 88ff.
- The most comprehensive survey of these provisions is that of
Aronson, note 37 above.
- Under certain statutes, there is an arrangement for the
indemnification of the statutory corporation for any loss incurred
by reason of compliance with a ministerial direction: see Aronson's
discussion of these provisions in 'Ministerial Directions', note 37
above at 84-5. The successor of the corporation considered in
Hughes, Air Services Australia, is now the beneficiary of
such an indemnification clause under the Air Services Act
1995 (Cth), s.16, but only insofar as directions are
concerned. 'Financial detriment' suffered by the corporation as a
result of compliance with a formal notification of government
policy is specifically exempted: subs 16(6).
- For example, Commonwealth Authorities and Corporations Act
1997 (Cth), s.28.
- Ansett Transport Industries (Operations) Pty Ltd v
Commonwealth (1977) 139 CLR 54 ('the second IPEC
case') and Hughes v Air Services Australia (1997) 146
ALR 1 at 52. Cf J. McMillan, Review of Government Policy
by Administrative Tribunals (Law and Policy Papers, ANU,
Report No. 9, 1998), on the problem of administrative tribunals
applying government policy.
- Amalgamated Society of Engineers v Adelaide Steamship Co
Ltd (1920) 28 CLR 129 at 147; R v Kirby; Ex parte
Boilermaker's Society of Australia (1956) 254 at 275; New
South Wales v Commonwealth (Seas and Submerged Lands case)
(1975) 135 CLR 337 at 364-5; Attorney-General (Commonwealth);
Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 24. See
generally, G. Winterton, Parliament, the Executive and the
Governor-General (1983) at 71ff; L. Zines, The High Court
and the Constitution (4th ed, 1997), at 249-51. In respect of
the States, see R. D. Lumb, The Constitutions of the Australian
States (5th ed, 1991), Ch. 4 and P. D. Finn, Law and
Government in Colonial Australia, at 39ff.
- (1997) 145 ALR 96 at 105.
- (1997) 145 ALR 96 at 105.
- Constitution, ss.1, 7, 8, 13, 24, 25, 28 and 30: discussed in
(1997) 145 ALR 96 at 104-5.
- See for example, G. Lindell, 'Responsible Government', in P. D.
Finn (ed), Essays on Law and Government: Volume 1-Principles
and Values (1995), 75-113 at 76-9; Winterton, note 44 at 71ff;
L. Zines, The High Court and the Constitution (4th ed,
1997), at 249-51; R. S. Parker, 'Responsible Government in
Australia' in P. Weller & D. Jaensch (eds), Responsible
Government in Australia (1981), 11-22; H. Emy, 'The Public
Service and Political Control: The Problem of Accountability in a
Westminster System with Special Reference to the Concept of
Ministerial Responsibility' in Royal Commission on Australian
Government Administration Appendix: Volume 1 (1976), 16-63.
- G. Lindell, 'Responsible Government', at 76-9 reworking R. S.
Parker's definition in, 'Responsible Government', note 48 above at
11-22. Lindell did not place emphasis on the effect of section 49
cf. note 52 below.
- Lindell noted that several Australian jurisdictions have either
adopted (e.g. NSW) or are proposing to adopt fixed term
parliaments.
- (1997) 145 ALR 96 at 105
- E. Campbell, note 10 above and G. Lindell, 'Parliamentary
Inquiries and Government Witnesses' (1995) 20 MULR 383.
Lindell draws an express distinction between the legal obligations
and restrictions which frame Parliament's inquisitorial
jurisdiction granted under section 49 of the Constitution and a
vaguer set of rules which are identified under the label of
'Responsible Government' (at 400-401).
- J. Uhr, Deliberative Democracy in Australia: The Changing
Place of Parliament (Mebourne, Cambridge Press, 1998),
especially Chapter 8.
- Western Australia, Royal Commission into Commercial
Activities of Government and Other Matters-Report Pt II
(1992), para 3.10.1. The relationship between the Auditor-General
and Parliament is unclear: J Uhr, Deliberative Democracy in
Australia: The Changing Place of Parliament (1998) at 188-90
and Joint Committee of Public Accounts, The Auditor-General:
Ally of the People and Parliament, Report 296 (1989), Ch. 5.
- For example, G. Winterton, Parliament, the Executive and
the Governor-General (1983) at 71ff. Incidental to the
individual and collective responsibility of Ministers within the
Australian setting are a set of conventions regarding the Vice
Regal representative (eg. the convention that the Governor or
Governor-General acts on the advice of the Minister) and the
conventions of Cabinet solidarity and Cabinet secrecy.
- Uhr, note 54 above at 194.
- D. Woodhouse, Ministers and Parliaments: Accountability in
Theory and Practice (1994), Ch. 2. Cf. Uhr, note 54 above, at
194ff; R. Brazier, Ministers of the Crown (1997), at
262-75; S. E. Finer, 'The Individual Responsibility of Ministers
(1956) 54 Public Administration 377 and C. Turpin,
'Ministerial Responsibility: Myth or Reality? In J. Jowell & D.
Jaensch (eds), The Changing Constitution (2nd ed, 1989),
53 at 56.
- Winterton, note 57 above at 110; Woodhouse, note 57 above at
27. Whether the creation of such a body is constitutional, is the
subject of disagreement: see discussion under heading 'Is
Ministerial responsibility for a statutory corporation required by
the Constitution?' (below).
- Woodhouse note 57 above, Ch. 2.
- Lange v Australian Broadcasting Corporation (1997) 145
ALR 96 at 107.
- P. D. Finn and G. J. Lindell, 'The Accountability of Statutory
Authorities', in Senate Standing Committee on Finance and
Government Operations, Statutory Authorities of the
Commonwealth: Fifth Report (1982), Appendix 4.
- This is the view of J. Goldring, 'Accountability of
Commonwealth Stautory Authorities and Responsible Government'
(1980) 11 Fed Law Rev 353 supported by reference to (1977)
139 CLR 54 the 'Ansett case' per Barwick C. J. and Murphy J) and
R v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117
(the 'IPEC case', per Windeyer J.).
- This is the view of J. Richardson, 'The Executive Power of the
Commonwealth' in L. Zines (ed), Commentaries on the Australian
Constitution: A Tribute to Geoffrey Sawer (1977), Ch. 2, esp.
at 84-5.
- Cf text at note 59
- P. D. Finn and G. J. Lindell, 'The Accountability of Statutory
Authorities' at 183.
- Ibid. at 194 & 185 respectively.
- G Winterton, Parliament, the Executive and the
Governor-General (1983) at 101-110, esp at 103, 110.
- Ibid. at 104.
- Horta v Commonwealth (1994) 181 CLR 183, cited in
Hughes v Airservices Australia (1997) 146 ALR 1 at 24 in
the context of section 61 of the Constitution.
- The Petroleum (Australia-Indonesia Zone Of Cooperation) Act
1990 (No. 36 of 1990) and the Petroleum
(Australia-Indonesia Zone Of Cooperation) (Consequential
Provisions) Act 1990 (No. 37 of 1990).
- Petroleum (Australia-Indonesia Zone Of Cooperation) Act
1990, s.4
- Article 7 of the 'Treaty between Australia and the Republic of
Indonesia on the Zone of Cooperation in an Area between the
Indonesian Province of East Timor and Northern Australia (11
December 1989)'.
- (1994) 181 CLR 183 at 197.
- Re Duncan; Ex parte Australian Iron and Steel Pty Ltd
(1983) 158 CLR 535 at 563 (Mason J.). See generally L. Zines,
The High Court and the Constitution (4th ed, 1997), 270-1;
G. Winterton, Parliament, the Executive and the
Governor-General (1983) at 101ff. Cf R. Cranston, 'From
Cooperative to Coercive Federalism and Back?' (1979) 10 Fed L
Rev 121.
- See discussion under the heading 'Strong form approach'.
- Bank of NSW v Commonwealth (1948) 76 CLR 1 at 274 (in
determining whether a statutory corporation is an agent of the
Crown)
- D. C. Pearce & R. D. Geddes, Statutory Interpretation
in Australia (4th ed, 1996), paras 2.2ff and F. Bennion,
Statutory Interpretation: A Code (2nd ed, 1992), Pt VII
and XX.
- Cf Lindell, note 48 above at 82.
- New South Wales Farmers' Federation v Minister for Primary
Industries and Energy (1990) 21 FCR 332; Aboriginal Legal
Service Ltd v Minister for Aboriginal and Torres Strait Islander
Affairs (1996) 45 ALD 235; Aboriginal Development
Commission v Hand (1988) 15 ALD 410; Botany Bay City
Council & Ors v Minister of State For Transport And Regional
Development & Ors (unreported, Federal Court of Australia
(Sydney, Lehane J., 30 May 1966 available through
http://www.austlii.edu.au); Ankers v Attorney-General
[1995] 2 NZLR 595; and Social Security Commission v
Macfarlane [1979] 2 NZLR 34.
- Bosjnak's Bus Service v Commissioner for Motor
Transport (1970) 92 WN 1003; Blayney Abbatoirs Pty Ltd v
State of NSW & Anor (unreported: NSW CA, Powell JA,
Beazley JA, Waddell AJA, 18 July 1996, available through
http://www.austlii.edu.au); Kremer v North Sydney
Municipal Council (1982) 47 LGRA 209; and Ankers
v Attorney-General [1995] 2 NZLR 595.
- (Emphasis added). The section under consideration was
Aboriginal Development Commission Act 1980 (Cth), s.11.
- On Commonwealth drafting practice regarding the distinction
between 'general' and 'specific' directions, see M. Aronson,
'Ministerial Directions', at 83-4.
- (1996) 45 ALD 235 at 247 (per Sackville J.). See also at 243
(Tamberlin J.).
- (1990) 21 FCR 332 at 340 (emphasis added), distinguishing
Bosjnak's Bus Service v Commissioner for Motor Transport
(1970) 92 WN 1003.
- Blayney Abattoirs Pty Ltd v State of NSW & Anor
(unreported: NSW CA, Powell JA, Beazley JA, Waddell AJA, 18 July
1996, available through http://www.austlii.edu.au), per Powell JA.
- At the time of the tender process, the CAA fulfilled both
regulatory and service provision functions. It was later abolished
and replaced by the Civil Aviation Safety Authority (a regulator)
and Airservices Australia (a service provider) which eventually
became the respondent in the action.
- (1997) 146 ALR 1 at 88-9.
- (1997) 146 ALR 1 at 89.
- In an early part of the judgment headed 'Issues not Pleaded',
Finn J. noted that:
'This case sits unhappily on two rather
significant fissures in Australian jurisprudence. The [first]
concerns the constitutional status and standing in our system of
government of statutory corporations that by statute are subject to
prescribed (hence, presumably, correspondingly limited) powers of
Ministerial direction. Do they fall within the Executive? Or are
they a fourth arm of government? ... I inquired [of counsel]
whether any issue would be taken as to the constitutionality or
otherwise of a body such as the CAA because of the provisions of
the Constitution, s61... For understandable reasons [counsel]
disclaimed any wish to burden his case with constitutional
considerations. I would have to say, though, that the absence of
authoritative guidance on the place of statutory corporations in
our system of government-and, importantly, on their proper
relationship both with Parliament and the Executive-is an abiding
difficulty in divining the proper resolution of cases of this
variety. I have not been able to avoid venturing some
conclusions on these issues.' : (1997) 146 ALR 1 at 24-5
(emphasis added).
- Finn J's statements on the subject as a legal academic are
numerous: P. D. Finn and G. J. Lindell, 'The Accountability of
Statutory Authorities', in Senate Standing Committee on Finance and
Government Operations, Statutory Authorities of the
Commonwealth: Fifth Report (1982), Appendix 4; Law and
Government in Colonial Australia (1987); 'Public Trust and
Public Accountability' (1993) Australian Quarterly 65;
'The Abuse of Public Power in Australia: Making Our Governors Our
Servants' (1994) 5 PLR 43; 'The Forgotten Trust: The
People and the State' in M. Cope (ed), Equity: Issues and
Trends (1994), Ch 5; and 'A Sovereign People, A Public Trust'
in P. D. Finn (ed), Essays in Law and Government Vol 1
(1995), Ch. 1.
- (1997) 146 ALR 1 at 75.
- (1997) 146 ALR 1 at 74. Finn J. noted, but did not feel bound
to consider, the question whether the only member of the ministry
who ought communicate directly with the statutory corporation was
the portfolio Minister or the corollary issue, whether
non-portfolio Ministers need communicate with the corporation about
the corporation's affairs through the portfolio Minister (at 75).
- At (1997) 146 ALR 1 at 75, Finn J. referred to Ansett
Transport Industries (Operations) Pty Ltd v Commonwealth
(1977) 139 CLR 54 at 76 and L'Huillier v Victoria [1996] 2
VR 465 at 481. On the various versions of the doctrine of executive
necessity and its recognition in Australian courts, see N. Seddon,
Government Contracts: Federal, State and Local (1995),
paras 4.30ff.
- Commonwealth of Australia, House of Representatives,
Parliamentary Debates, vol. 171 (1990) at 611 cited in (1997)
146 ALR 1 at 48-9.
- (1997) 146 ALR 1 at 49.
- Minister Collins' letter concluded: 'Of course the decision in
clearly a matter for the CAA board using all the evaluation
criteria established for the tender process': extracted at (1997)
146 ALR 1 at 73.
- (1997) 146 ALR 1 at 92-3.
- (1997) 146 ALR 1 at 91.
- (1997) 146 ALR 1 at 89.
- Harkness v Commonwealth Bank of Australia (1993) 12
ACSR 165. Not even the more 'liberal' approach of Jacobs J. in
Re Broadcasting Station 2GB Pty Ltd [1964-65] NSWR 1648
and Levin v Clark [1962] NSWR 686 would support such a
disclosure. On nominee directors' duties, see generally: P.
Redmond, (1987) 'Nominee Directors' (1987) 10 UNSWLJ 194;
P. Crutchfield, 'Nominee Directors: the law and commercial reality'
(1992) 20 ABLR 109; Justice E. W. Thomas, note 28 above.
- Bank of Tokyo v Karoon [1986] 3 All ER 468 at 476.
- G. Lindell note 48 above, 80ff and Lindell note 52 above at
400-1.
- Uhr, note 54 above, Ch. 3, esp. at 77-80. See also Finn abovew
at note 21.
- Winterton, note 67 above at 71 ff, esp. 72.
- The distinction was introduced into English constitutional
discourse by W. Bagehot, The English Constitution (1867):
See, R. H. S. Crossman, 'Introduction', in W. Bagehot, The
English Constitution (1963), at 16ff.
- See sources cited in note 5 above and R. L. Wettenhall,
Organizing Government (1986), Chs 2-3, 6; and J. Halligan
& P. Power, Political Management in the 1990s (1992),
esp. Ch 3.
- The main policy documents associated with these changes were:
The Hon J. Kerin (Minister for Primary Industry), Reform of
Commonwealth Primary Industry Marketing Authorities (1986);
The Hon P. Walsh (Minister for Finance), Policy Guidelines for
Commonwealth Statutory Authorities and Government Business
Enterprises (1987); The Hon G. Evans (Minister for Transport
and Communications), Reshaping the Transport and Communications
Government Business Enterprises (1988). See generally: J.
Halligan & J. Power, Political Management in the 1990s
(1992) and M. Considine & M. Painter (eds), Managerialism:
The Great Debate (1997).
- Aronson, note 37, at 89-92.