Appendix 4 - Letter from the Attorney-General's Department
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Monday, 31 July 2000 |
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Mr Paul Barsdell |
By fax 6277 5818 |
Secretary |
4 pages in all |
Senate Foreign Affairs, Defence and Trade Legislation Committee |
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Parliament House |
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Canberra ACT 2600 |
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Dear Mr Barsdell
Inquiry into
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000
During
the course of the Committee’s hearing into the Defence Legislation Amendment
(Aid to Civilian Authorities) Bill 2000 (the Bill) on Friday, 21 July 2000,
I gave an undertaking that I would provide further advice on how the call out
mechanism under the Bill might operate if one or more of the Governor-General,
the Prime Minister, the Minister for Defence and the Attorney-General were to
be taken hostage. My advice, which I have cleared with the Department of the
Prime Minister and Cabinet, is as follows. (While the ‘taken hostage’ scenario
is an unlikely one, it is a convenient example, given the purpose of the Bill,
of where someone might suddenly and unexpectedly become unavailable to perform
a function.)
Acting
Ministers: general principles
2. Section
19 of the Acts Interpretation Act 1901 provides that a reference in an
Act, (such as the Defence Act) to any Minister (such as the Prime Minister,
Attorney-General, Minister for Defence), shall be deemed to include any
Minister acting for or on behalf of another Minister. Hence, an acting Attorney-General
may exercise the statutory powers conferred on the Attorney-General provided
the Minister acting as Attorney-General has been given authority to act. The
Prime Minister can give such an authority to act including in relation to his
own office. There may be other ways of conferring such authority: see Attorney-General
v Foster (1999) 161 ALR 232 at 243. I now set out what steps could be taken
if one or more of the four key office-holders referred to above were to be
taken hostage.
The Minister
for Defence and / or Attorney-General are taken hostage
3. There
is long established practice for the Prime Minister, through notification from
one of his staff, to appoint Ministers to act for other Ministers, when for
example, a Minister is overseas or taking leave. Accordingly, if one or both of
the Minister for Defence or the Attorney-General were to be taken hostage, the
Prime Minister could appoint other Ministers to act in those ministerial
positions.
The Prime
Minister is taken hostage
4. Ordinarily,
when the Prime Minister is overseas or taking leave, he arranges for another
senior Minister, such as the Deputy Prime Minister or the Treasurer to act as
Prime Minister. The Prime Minister could issue a standing authority that should
he be unable to exercise his powers, such as might occur if he were taken
hostage, the next most senior Minister available, for example the Deputy Prime
Minister, would act as Prime Minister. In absence of such an arrangement, the
Governor-General could exercise his reserve powers to appoint an Acting Prime
Minister, in all likelihood one of the two senior Ministers referred to above.
The Governor-General
is taken hostage
5. Section
4 of the Constitution provides authority for the Queen to appoint an
Administrator to act for the Governor-General. There is a practice of State
Governors being granted dormant commissions by the Queen to act as Administrator
of the Commonwealth. The powers, functions and authorities of the
Governor-General vest in the Administrator. A dormant commission may be
activated in accordance with Clause III of Letters Patent made on 21 August
1984. The Letters Patent provide, among other things, that the Prime Minister
may request that a person holding a dormant commission assume the
administration of the Commonwealth, if, due to death or incapacity, the
Governor-General is incapable of carrying out his duties. The Letters
Patent further provide that, should the Prime Minister and Governor-General die
or be incapable of acting, the Deputy Prime Minister or next most senior
Minister, may request that a person holding a dormant commission assume the
administration of the Commonwealth. By convention the most senior State
Governor ordinarily assumes the role of Administrator but there is nothing to
prevent, particularly in emergency, another State Governor being asked to act
as Administrator.
The GG, PM,
AG, Minister for Defence and CDF are all taken hostage
6. In the
unlikely event that the Governor-General, Prime Minister, Attorney-General,
Minister for Defence and Chief of the Defence Force were all to be taken
hostage at the same time, the following procedures could be followed to enable
the Defence Force to be called out in accordance with the procedures set out in
the Bill.
- The Deputy Prime
Minister (or next most senior Minister who is available) could request, in
accordance with the Letters Patent, that a State Governor act as Administrator;
- The Administrator
could appoint the Deputy Prime Minister (or next most senior Minister
available) to act as Prime Minister;
- The Acting Prime
Minister could in turn appoint other available Ministers to act as the Minister
for Defence and the Attorney-General; and
- The acting Minister
for Defence could appoint an acting Chief of the Defence Force under paragraph
9C(1)(b) of the Defence Act 1903.
In the event that
the administrative processes set out above were followed, the Defence Force may
be called out and utilised in accordance with the provisions of proposed
Part IIIAAA of the Defence Act.
Other matters
7. The
Committee also asked why new section 51B requires that a request for call out
come from a “State Government” when section 119 of the Constitution refers to a
request being made by the “Executive Government of the State”. In accordance
with the Committee’s request the Department raised the matter with the drafter
of the Bill and his response to our enquiry is attached.
8. Please
feel free to contact me should you, or the Committee, require further
assistance in this matter.
Yours sincerely
Geoffrey Dabb
Telephone: (02) 6250 5877
Facsimile: (02) 6250 5909
Email: geoff.dabb@ag.gov.au
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