SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
TENTH REPORT OF 1998
2 December 1998
ISSN 0729-6258
MEMBERS OF THE COMMITTEE
Senator B Cooney (Chairman)
Senator W Crane (Deputy Chairman)
Senator H Coonan
Senator T Crossin
Senator J Ferris
Senator A Murray
TERMS OF REFERENCE
Extract from Standing Order 24
(1) (a) At the commencement of each Parliament, a Standing Committee
for the Scrutiny of Bills shall be appointed to report, in respect of
the clauses of bills introduced into the Senate, and in respect of Acts
of the Parliament, whether such bills or Acts, by express words or otherwise:
(i) trespass unduly on personal rights and liberties;
(ii) make rights, liberties or obligations unduly dependent upon insufficiently
defined administrative powers;
(iii) make rights, liberties or obligations unduly dependent upon non-reviewable
decisions;
(iv) inappropriately delegate legislative powers; or
(v) insufficiently subject the exercise of legislative power to parliamentary
scrutiny.
(b) The Committee, for the purpose of reporting upon the clauses of
a bill when the bill has been introduced into the Senate, may consider
any proposed law or other document or information available to it, notwithstanding
that such proposed law, document or information has not been presented
to the Senate.
SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
TENTH REPORT OF 1998
The Committee presents its Tenth Report of 1998 to the Senate.
The Committee draws the attention of the Senate to clauses of the following
bill which contains provisions that the Committee considers may fall
within principles 1(a)(i) to 1(a)(v) of Standing Order 24:
Acts Interpretation Amendment Bill 1998
Acts Interpretation Amendment Bill 1998
Introduction
The Committee dealt with this bill in Alert Digest No 10 of 1998,
in which it made various comments. The Attorney-General has responded
to those comments in a letter dated 1 December 1998. A copy of that
letter is attached to this report. An extract from the Alert Digest
and relevant parts of the Attorney-General's response are discussed
below.
Extract from Alert Digest No 10 of 1998
This bill was introduced into the House of Representatives on 12 November
1998 by the Attorney-General. [Portfolio responsibility: Attorney-General]
The bill proposes to amend the Acts Interpretation Act 1901 to
address the implications of a recent decision of the Federal Court in
Foster v Attorney-General (relating to section 19). The bill
proposes to:
- provide for a Minister to authorise a non-portfolio Minister or
Parliamentary Secretary to act on his or her behalf;
- validate past authorisations that may have been made in reliance
on section 19 to the extent that they may be invalid; and
- ensure that an order can be made by the Governor-General under section
19 whenever there is any change to the administration of government
business and validates past orders made under section 19BA to the
extent that they may be invalid.
Retrospective validation
Schedule 1, items 2, 5 and 7
This bill proposes to amend the Acts Interpretation Act 1901
to address the implications of the decision of the Federal Court in
Foster v Attorney-General, handed down on 12 October 1998.
The Explanatory Memorandum notes that, in that case, the Federal Court
found that section 19 of the Act did not enable the Attorney-General
to authorise the Minister for Justice to exercise statutory powers for
and on his behalf. The Explanatory Memorandum goes on to suggest that
this decision has significant ramifications for other authorisations
made under section 19 of the Act, and serious implications for government
administration generally.
Therefore, items 2, 5 and 7 of Schedule 1 to the bill retrospectively
validate acts undertaken under the legislation as presently in force.
While understanding the argument that this validation may be necessary
for the orderly conduct of government, the Committee is concerned that
the bill may go further than necessary, and that it may prejudice longstanding
tradition and practice. Accordingly, the Committee seeks the advice
of the Minister:
- to identify the specific implications of the decision in Foster's
case which the legislation is seeking to address;
- to confirm that a non-portfolio Minister (or member of the Executive
Council who is not a Minister) has the same general rights and responsibilities
at law as a portfolio Minister;
- to identify the usual protocol with regard to oversight by a portfolio
Minister of a non-portfolio Minister (or member of the Executive Council
who is not a Minister) who would be authorised by the bill to act
on the Minister's behalf; and
- to reassure the Committee that the amendment will not prejudice
practice that, in the past, has ensured due process.
Pending the Minister's advice, the Committee draws Senators' attention
to this provision, as it may be considered to make rights, liberties
and obligations unduly dependent on insufficiently defined administrative
powers, in breach of principle 1(a)(ii) of the Committee's terms of
reference, and inappropriately delegate legislative power in breach
of principle 1(a)(iv) of the Committee's terms of reference.
Relevant extract from the response from the Attorney-General
The Bill makes amendments to the Acts Interpretation Act 1901
to address the implications of the decision of the Federal Court in
Foster v Attorney-General. In that case the Court found that
section 19 of the Acts Interpretation Act does not enable the Attorney-General
to authorise the Minister for Justice to exercise statutory powers for
or on his behalf. An appeal in the Foster case was heard by the
Full Federal Court on 26 November 1998; the Court has reserved its decision.
It has been the practice of current and previous governments to rely
on Section 19 to authorise another Minister to act for a named Minister
in a statute, where section 19A of the Acts Interpretation Act is not
available; and, in particular, to authorise Parliamentary Secretaries
to exercise statutory powers vested in Ministers.
The result of the Foster case is that section 19 of the Act cannot
be used as authority:
- for a portfolio Minister to authorise a junior portfolio Minister
to exercise statutory powers vested in the holder of a specific ministerial
office;
- and, by implication, section 19 cannot be used as authority for
a portfolio Minister:
- to authorise a non-portfolio Minister to exercise statutory powers
vested in the holder of a ministerial office;
- to authorise a Parliamentary Secretary to exercise statutory powers
vested in the holder of a ministerial office.
The amendments to section 19A address item (i). Section 19A currently
provides that a reference in legislation to 'Minister' is taken to be
a reference to all ministers appointed to administer the provision.
The proposed amendment will provide that a reference to a Minister,
whether specific or generic, will be taken to be a reference to all
ministers appointed to administer the provision, that is all Ministers
within the one portfolio. This will allow all Ministers within a portfolio
to exercise relevant statutory powers of the portfolio Minister where
appropriate.
Proposed new subsection 18C covers items (ii) and (iii) by providing
that a portfolio Minister may authorise a non-portfolio Minister or
a member of the Executive Council who is not a Minister to exercise
statutory powers on his or her behalf.
The legal framework for government as set out in the Australian Constitution
does not distinguish between portfolio and non-portfolio Ministers.
All Ministers are appointed under section 64 of the Constitution to
administer entire departments of State, with more than one Minister
being appointed to administer some Departments. Where more than one
Minister is appointed to administer a Department both Ministers are
responsible for the administration of that Department.
Parliamentary Secretaries are not appointed under the Constitution
to administer departments but since 1990 Parliamentary Secretaries have
been appointed as members of the Executive Council under section 62
of the Constitution and so are available if requested to undertake a
variety of duties on behalf of Ministers including attendance at Executive
Council meetings.
Where a non-portfolio Minister or Parliamentary Secretary acts for
or on behalf of another Minister under a Ministerial authorisation,
he or she is acting as an agent for the authorising Minister, not as
a delegate of the Minister.
The protocol for oversight by a portfolio Minister of a Minister or
Parliamentary Secretary authorised to act on the Minister's behalf would
vary from Government to Government and Minister to Minister. However,
the authorisation would be in writing setting out the functions or exercise
of powers in relation to which the Minister or Parliamentary Secretary
was authorised to act for and on behalf of the authorising Minister.
The authorisation would also set out the circumstances in which the
authorisation was to operate or alternatively specify the time when
the authorisation was to be effective. The authorising Minister retains
ultimate control as the authorisation may be revoked at any time by
the Minister.
The Government has taken note of concerns raised that if oral authorisations
were permitted the paper trail of government decisions may be difficult
to follow. In light of these concerns the Bill provides that authorisations
given to both Ministers and Parliamentary Secretaries must be in writing.
This will ensure that it is easier to ascertain the decision maker when
seeking to review or challenge an administrative decision.
Due to the serious implications of the Foster case for government
administration, it is appropriate that urgent legislative action be
taken to clarify the legal basis for ministerial authorisations and
to validate past authorisations that have been made in reliance on section
19 to the extent that they may be invalid.
The amendments will in no way prejudice practice that has in the past
ensured due process. On the contrary, the amendments validate past practice.
In addition, the new requirement that authorisations be in writing reinforces
due process.
The Committee thanks the Attorney-General for this comprehensive response.
Barney Cooney
Chairman
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