Supplementary Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)GENERAL OUTLINE
The Bill makes amendments to the Acts Interpretation Act 1901 to address the implications of a recent decision of the Federal Court in Foster v Attorney-General, 12 October 1998, which has serious implications for government administration.
In that case the Court found that section 19 of the Acts Interpretation Act 1901 does not enable the Attorney-General to authorise the Minister for Justice to exercise statutory powers for and on his behalf. This decision has significant ramifications for other authorisations made under section 19 of the Act.
The Bill provides for a Minister to authorise a non-portfolio Minister or a Parliamentary Secretary to act on his or her behalf. The proposed amendments would validate past authorisations, whether oral or written, given to another Minister or to a Parliamentary Secretary.
The proposed amendments also amend the Bill to provide 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.
This will reduce the flexibility for Ministerial authorisations, however section 19 will still be available to make urgent authorisations. Even under the Foster decision, section 19 can be used to deal with circumstances in which a Minister was temporarily unavailable to perform duties. In addition Cabinet and the Prime Minister would still have power to authorise a Minister to exercise power on behalf of another Minister, as recognised by the decision in the Foster case.
FINANCIAL IMPACT STATEMENT
The amendments to the Bill contain no significant financial impact.
NOTES ON AMENDMENTS
Amendment 1
1. Amendment 1 amends Item 1 by omitting subsections 18C(5) and (6) and substituting new subsection18C(5). This amendment provides that authorisations given to both Ministers and members of the Executive Council 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.
Amendment 2
2. Amendment substitutes new Item 2 which provides for the validation of past authorisations purported to be given by a Minister to another Minister or member of the Executive Council before the commencement of new section 18C (item 1).
3. This amendment will ensure that any purported past authorisation given by a Minister, whether in writing or orally, is taken to have been validly given. It also provides for such authorisations to be revoked in writing by the authorising Minister at any time.
Amendment 3
4. Item 5 of the Bill provides for the validation of past acts purported to be done on behalf of a portfolio Minister by another Minister in the portfolio before the commencement of the amendment to section 19(A)(1). This amendment inserts the word duty after function. This will ensure that all relevant past acts are validated.
Amendments 4 and 5
5. Amendments 4 and 5 correct a drafting error.