Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Acts Interpretation Amendment Bill 1998

Date Introduced: 12 November 1998

House: House of Representatives

Portfolio: Attorney-General

Commencement: On Royal Assent. The Bill, however, validates administrative decisions made before the date of commencement.

Purpose

The Bill amends the Acts Interpretation Act 1901 (the Principal Act) to overcome the decision of Spender J in Foster v Attorney-General (1998)(1) that has cast doubt over the capacity of a Minister to authorise another Minister or a Parliamentary Secretary to exercise statutory powers on their behalf.

The Bill will validate previous decisions of the type held unlawful in Foster v Attorney-General and relaxes the formal procedures for redistributing executive power between Ministers.

Background

The present Bill deals with what are complex and seemingly arcane matters of public administration relating to the rules governing the appointment, powers and responsibilities of Ministers and members of the Federal Executive Council. The policy issues underlying the Bill are nonetheless significant.

Administrative Arrangements - Distributing Executive Power

The 'golden rule' of decision-making in the public sector is that nothing can be done without specific authority. The source of that authority will generally be either an Act of Parliament, subordinate legislation or a cabinet decision. In some instances, the source of authority may be the Australian Constitution or a decision of the Governor-General.

The distribution of executive power within the Commonwealth is a matter of political authority. However, the exercise of that power relies on a number of related formalities.

Section 64 of the Constitution provides that Ministers are appointed by the Governor-General. Ministers must administer Departments but there is no constitutional objection to more than one Minister administering a single department of state.

Under the Parliamentary Secretaries Act 1980, Parliamentary Secretaries may also be appointed to assist Ministers in their duties. For constitutional reasons, Parliamentary Secretaries are unsalaried.

Like Ministers, Parliamentary Secretaries are appointed to the Federal Executive Council provided for under sections 62 to 64 of the Constitution.

The Federal Executive Council provides advice to the Governor-General usually in relation to action authorised by Acts of the Parliament.

A Minister's formal commission from the Governor-General generally gives them a formal title (eg Minister for Justice) and names the Department that they are to administer. A further formal and more detailed division of authority is provided by the Administrative Arrangements Orders (AAO). Each AAO is made by the Governor-General acting on advice.

A new AAO is as a matter of practice made whenever there is a significant change in ministerial responsibilities within the government as, for example, when a new government is formed.

To quote a recent Legal Briefing prepared by the Attorney-General's Department:

• the matters to be dealt with by the department (and provides that the department also deals with matters arising under legislation administered by the department's Minister); and

• legislation to be administered by the Minister for that department (and provides that the Minister administers legislation passed, before or after, that relates to a matter dealt with by the Minister's department).

The most recent AAO was made on 21 October 1998. Copies are available in the Parliamentary Library and 'on line' for those who wish to examine the relevant format.(3)

Acts Interpretation Act

The preceding discussion of the distribution of ministerial authority is incomplete without reference to other matters that relate directly to the Acts Interpretation Act, the Federal Court's decision in Forster v Attorney-General and to the present Bill.

This is because the constitutional arrangements described above do not cover all the possible situations that arise during the life of a government that affect its decision-making processes. What, for example, happens when a Minister is replaced or becomes ill and temporarily is unable to discharge her or his duties? What happens if an Act is repealed or a new piece of legislation is enacted? What happens if there is a minor re-allocation of responsibilities between departments?

The answers to these questions depend on a number of factors.

First, changes may be judged significant enough to warrant the making of a new or supplementary AAO.

Secondly, the provisions of the Acts Interpretation Act may be relevant. In some instances these will operate to confer legal responsibility for particular statutory provisions on persons other than those named in the legislation. The Acts Interpretation Act in prescribed cases thus works to bring the legal position into line with changes agreed at the administrative and political level.

Thirdly, individual pieces of legislation may provide some guidance as to which Minister has responsibility for administering a particular statute. Here, the choice of 'may' is quite deliberate. Some Acts will simply refer to 'the Minister', meaning any Minister from time to time appointed to administer the law. Other legislative provisions will refer to a particular Minister (eg the Attorney-General).

Foster v Attorney-General (1998)

Foster v Attorney-General arose out of a challenge to a decision purportedly made by the Minister for Justice, Senator Vanstone, under section 23 of the Extradition Act 1988.

Section 23 forms part of provisions in the Extradition Act dealing with the extradition of persons from Australia to other Countries (Part II). (Extradition to Australia from Other Countries is dealt with under different part of the Extradition Act, Part IV.)

Sections 22 and 23 specifically state that the relevant decision-maker in relation to the making out of an extradition warrant is the 'Attorney-General'. The Extradition Act confers no power on the Minister for Justice and it was successfully argued by Foster that there had been a technical defect in the extradition proceedings because the wrong Minister had taken the decision to issue the warrant.

Spender J was required to rule on the Attorney-General's argument that the Minister for Justice could lawfully make decisions under section 23 for the Attorney-General. It was argued that authority had been conferred by a Joint Ministerial Press Release issued on 10 October 1997 and a letter from Minister Williams to Senator Vanstone dated 24 November 1997.

It was argued that the Attorney's purported delegation of power to his Ministerial colleague was supported by section 19 of the Acts Interpretation Act which provides:

Where in an Act any Minister is referred to, such reference shall unless the contrary intention appears be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister. (emphasis added)

Spender J rejected the Attorney-General's submission and found that the power under the Extradition Act must be exercised by the Attorney and could not be delegated to the Minister for Justice.

Referring to the Joint Press Release and the letter of 24 November 1997, the judge held that such a delegation could not be authorised under section 19 of the Acts Interpretation Act and that section 19 did not permit the making of open ended delegations. Citing the relevant legal authorities, His Honour went on to suggest that section 19 operates:

1/4 to provide a mechanism by which illness or absence from Australia or leave or other emergency could be met so as to permit the continued orderly administration of the enactments of the Parliament of the Commonwealth.(4)

His Honour also found fault with the mechanism used in the purported attempt by the Attorney-General to confer authority on the Minister for Justice.

His Honour concluded that there was no authority for what he (by implication) described as a 'job sharing deal between two Ministers'. Section 19 in His Honour's view, has a clear temporal element limiting the length of Prime Ministerially sanctioned 'acting' arrangements.(5)

Spender J also contrasted the course followed by the two Ministers with either seeking the approval of the Executive Council for the delegation of authority or, less formally, the Prime Minister directing a second Minister to act for the Minister referred to in the statute or instrument.(6) The former route of appointment is not in doubt. After a detailed discussion of the cases - principally Burchett J's judgment in GTE (Australia) Pty Ltd v Brown (1986)(7) - Justice Spender also appears to confirm that the Prime Minister is able to authorise short-term 'acting' arrangements by virtue of section 19.(8)

Given a narrow reading of Foster v Attorney-General, section 19 of the Acts Interpretation Act has a limited operation and cannot be used to support long-term or open-ended acting arrangements arrived at bilaterally between two ministers. That is, the established practice of allowing more than one Minister to administer a portfolio (as sanctioned by the AAO and apparently supported by judicial authority)(9) does not overcome restrictions placed on such arrangements by the terms of the specific statutes being administered.

Given a broader reading, Spender J's judgment may cast some doubt on the practice whereby a Prime Minister may without reference to the Governor-General authorise one Minister to act for another more generally.

The Attorney-General has indicated that the Commonwealth will appeal against Spender J's decision.

In the interim the present Bill has been introduced.

Main Provisions

The proposed amendments do more than address the 'problem' identified in Foster v Attorney-General.

Amendments will validate similar previous decisions where a Minister or Parliamentary Secretary has erroneously acted in the belief that they were given authority by a relevant Minister to make decisions under a particular statutory provision. The Bill also makes it possible for any member of the Executive Council who has been given portfolio responsibilities by the AAO to exercise those responsibilities without formal authority from either the Prime Minister or the Executive Council.

As already noted, the Government argues that the proposed legislation is necessary pending an appeal against Spender J's decision.

Proposed amendments appear in Schedule 1 to the Bill.

Item 1 proposes that section 18C be inserted into the Principal Act. This provision will allow any Minister administering a particular portfolio to authorise another member of the Executive Council (ie any other Minister or a Parliamentary Secretary) to perform functions and make decisions under legislation administered by the authorising Minister. Where there is more than one portfolio Minister, either Minister may grant such an authorisation. Unlike the position in Foster v Attorney-General, where two Ministers administering the same portfolio were involved, authority under proposed section 18C may be conferred on any Minister or Parliamentary Secretary.

Proposed sections 18C(5) and 18C(6) provide that a grant of authority may be oral or in writing in cases where authority is conferred on a Minister but must be in writing where authority is conferred on a Parliamentary Secretary.

Item 2 validates past authorisations of the type referred to in item 1. Hence, the changes made by item 1 may operate retrospectively. (The numbering of this provision and other validation provisions contained in this Bill reflects the intention that they operate but not form part of the Principal Act as amended.)

Item 3 amends section 19 of the Principal Act to remove the phrase 'unless the contrary intention appears'. This amendment does not specifically arise out of the decision in Foster v Attorney-General. The Explanatory Memorandum states that this amendment will operate to overcome possible ambiguity where an Act already gives a Minister power to delegate. Another possible source of ambiguity may arise where an existing power under an current Act proves to be narrower than the power conferred on Ministers generally by the present Bill.

Item 4 will amend section 19A. This amendment allows the sort of informal 'job sharing' arrangement amongst Ministers administering the same portfolio that was struck down in Foster v Attorney-General.

Subsection 19A(1) presently deals with situations where an Act refers to 'a Minister' meaning the Minister who administers the Act from time to time. Subsection 19A(1) provides that where the statutory provision does not refer to a particular Minister, then any Minister whose commission extends to administering the portfolio that administers the relevant law, may make decisions or perform functions under that law. This may be contrasted with the situation in Foster v Attorney-General where the Act in question referred to a particular Minister, ie the Attorney-General.

The amendment here operates to remove the distinction made by the current subsection between the use of the generic term 'Minister' and the use of a particular ministerial designation.

The effect is to allow informal or 'bilateral' delegations of the type held to be beyond power in Foster v Attorney-General.

Item 5 provides for the validation of past acts performed by Ministers who were acting on a purported grant of authority of the type relied on by the Minister for Justice in Foster v Attorney-General. In effect, this means that the changes made by item 4 may operate retrospectively.

Item 6 will amend paragraph 19BA(1)(b) of the Principal Act. Section 19BA permits the Governor-General to alter references in Acts to specific Ministers, departments and Secretaries on account of changes effected by the AAO. The proposed amendment applies to any change of government operations made by the Governor-General, not just those changes given effect to by an AAO.

Item 7 is a validation provision and confers retrospective operation on the changes made by item 6.

Concluding Comments

Potentially lost in the foregoing sea of detail are a number of important principles.

On the one hand, the proposed amendments recognise the perceived need for greater flexibility in administrative arrangements within the Executive. This in part reflects the development of the so-called mega-departments in the late 1980s, the associated practice of having more than one Minister per portfolio and the increased use of Parliamentary Secretaries.

The proposed amendments also reflect the view that government decision-making process should not founder on what are no more than mere technicalities. Thus third parties dealing in good faith with the Commonwealth have a legitimate expectation that arrangements will not be frustrated by administrative oversights that are beyond their control. Similarly, otherwise fair and lawful action taken against wrongdoers should not be defeated by technical objections. (In the case of Foster v Attorney-General, Spender J was clearly unimpressed by the substantive arguments raised by Foster opposing his extradition to the United Kingdom.(10))

Authorisations similar to those in Foster have been given by Ministers in other portfolios. Moreover, the practice of relying on section 19 of the Acts Interpretation Act in the manner criticised by Spender J is quite common.(11) It is also possible that similar purported authorisations were given by Ministers during the life of the previous governments.(12)

If Foster v Attorney-General is upheld it is likely that such defences will be relied on increasingly. For example, it is conceivable that persons seeking to frustrate the operation of Part IV of the Extradition Act 1988, ie the provisions dealing with extradition to Australia, may be able to take advantage of similar procedural defects.(13)

Of course, the principle in Foster v Attorney-General extends beyond extradition matters and has the potential to apply to decisions taken and functions performed by all Ministers and Parliamentary Secretaries where a delegation and the exercise a statutory power is involved.

Objection may be taken to the proposed amendments on a number of grounds.

First, the validation provisions will operate retrospectively as well as prospectively. (The arguments regarding the ethics of retrospective laws are well known and need not be rehearsed here.)

Secondly, it is arguable that the amendments are largely unnecessary. It might be said that they are being proposed not because the existing processes are unfair or unworkable but because those procedures were misused. On this view, the Bill exists primarily to remedy one administrative error and to prevent similar errors being made.

Spender J's decision does not impede the Prime Minister's continued use of section 19 of the Acts Interpretation Act to appoint Ministers to act in place of temporarily indisposed or otherwise unavailable colleagues. Moreover, the decision does not directly call into question the practice of more than one Minister being appointed to administer a single department. Changes to administrative arrangements will still be able to be made by the making a new AAO. Other relevant provisions of the Acts Interpretation Act, such as 19B and 19BA, are unaffected by Foster v Attorney-General.

This is not to say that all the Government's proposals may give rise comparable concerns. Some amendments are quite modest. For instance, the proposals contained in items 3 and 6 in the Schedule remove some potential anomalies and build in greater flexibility. They appear to do so without radically changing current practice or eroding existing checks and balances.

Perhaps the most fundamental objection to the key provisions in the Bill is that in some circumstances they may operate to diminish individual rights and over-ride the express will of the Parliament.

Spender J makes the following observation in Foster v Attorney-General:

It might be thought nit-picking and offensive to the efficient and orderly arrangement of the business of Attorney-General's Department that I have concluded that the Minister of Justice is not a person who satisfies the description in section 19 of the Acts Interpretation Act. However, the liberty of an Australian citizen and our international obligations in respect of extradition highlight the need for a punctilious compliance with the law in this area. Deane J noted in Re Bolton; Ex parte Beane (1987) 61 ALJR 190 at 196:

'Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody.'(14)

Apart from the larger human rights concerns, some of the proposed changes may create practical and procedural difficulties for anyone seeking to review or challenge an administrative decision. Proposed subsection 18C(5), which allows for oral as well as written ministerial authorisations, is one specific source of potential accountability and evidentiary concerns. If unwritten authorisations become common, the 'paper trail' (sic) of government decision-making may become just that little bit harder to follow. The proposed changes may also increase the incidence of court and tribunal proceedings being commenced with the wrong respondent/decision-maker being nominated by the complainant.

In instances where individual liberty is not at stake there is still the issue of whether the proposed changes unacceptably diminish parliamentary oversight of executive decision-making.

References in legislation to a particular Minister rather than 'the Minister' can be taken to reflect the legislative intention of the Parliament.(15) Subject to certain qualifications,(16) the naming a particular Minister means that it was Parliament's view that that Minister should be accountable for things done under the Act and should be required to personally perform the statutory functions that the law assigns to her or him.

Where the dictates of administrative convenience are strongest, the Acts Interpretation Act already permits the Executive to ignore the plain words of an enactment by directly nominating a different Minister to the one named to perform a particular function or make decisions under that Act.(17) Such a process is clearly more efficient than one alternative, that of re-committing every law to parliament each time there is a change to administrative realities. The present trade-off for this Executive flexibility is that there are limits to what can be done and on how it must be done. Foster v Attorney-General, merely reinforced the basic point that the formal redistribution of administrative power by direct Executive action is subject to procedural constraints.

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

Endnotes

2. Unreported, No. 1299 FCA, 12 October 1998.

3. Attorney-General's Department, Legal Briefing No.43, 23 September 1998, pp 2-3.

4. http://www.dmpc.gov.au/aaooct.html

5. Foster v Attorney-General (1998), 12 October 1998, p 17.

6. ibid.

7. ibid, p 15.

8. 76 ALR 221 at pp 252-253.

9. Op cit, pp 15-19.

10. Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153.

11. Op cit, pp 21-24.

12. Attorney-General's Department, Legal Note No.14, 19 October 1998.

13. Although after some investigation none has come to light.

14. Section 43 of the Extradition Act 1988 would appear to leave open such a possibility. Section 40 allows the Attorney-General to delegate the making of a request for extradition to another person. However, section 43 makes it plain that certain functions in the process must be performed by the Attorney-General personally. A similar defective/purported delegation of authority from the Attorney-General to another Minister is thus theoretically possible in cases of extradition and attempted extradition to Australia.

15. Op cit, pp 20-21.

16. Put more bluntly, the Parliament deliberately chose that not just any Minister should exercise a particular power.

17. Some Acts may contain provisions which limit the scope for delegation but have no substantive reason for continuing to do so. It is possible that a number of Acts passed prior to the administrative and governmental reforms of the late 1980s, contain what are now overly restrictive provisions.

18. Refer sections 19B, 19BA and 19BB.

Contact Officer and Copyright Details

Bob Bennett
23 November 1998
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1998

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1998.

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