(15 March 1999)
MINISTERIAL AUTHORISATIONS: FOSTER AND BEYOND
The decision of the Federal Court in Foster v Attorney-General (1998) 158 ALR 394 cast significant doubt on whether a Minister could rely on section 19 of the Acts Interpretation Act 1901 to authorise another Minister or a Parliamentary Secretary to exercise statutory powers for or on his or her behalf.
The Position before Foster
Prior to the decision in Foster, Ministers commonly relied on section 19 of the Acts Interpretation Act to authorise other Ministers and Parliamentary Secretaries to perform or exercise statutory functions or powers for or on their behalf. Section 19 provided:
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.
All Parliamentary Secretaries are appointed as members of the Executive Council. It was therefore thought that section 19 conferred on a Minister, or at least recognised, the relevant powers of authorisation. Consistent with that view it has been common, in recent history, for a Minister to:
- authorise another Minister to perform or exercise statutory functions or powers which are conferred specifically on the Minister.
- authorise their Parliamentary Secretary to perform or exercise all of their statutory functions or powers related to a specific subject or subjects.
The validity of these kinds of authorisation were called into doubt by the decision in Foster.
The Decision in Foster
Foster was concerned in part with whether the Minister for Justice had validly exercised, for and on behalf of the Attorney-General, powers under the Extradition Act 1988 relating to the surrender of a person.
The Attorney-General had, in purported reliance on section 19, authorised the Minister for Justice to exercise for and on his behalf all of the powers and functions which were conferred on the Attorney-General by statutory provisions which referred specifically to 'the Attorney-General'. Statutory provisions which refer specifically to 'the Attorney-General' include sections 22 and 23 of the Extradition Act.
Broadly, those provisions confer on the Attorney-General, respectively, a power to determine that a person is to be surrendered to another country and a power to issue a warrant for the surrender of that person to the relevant country.
In Foster, the Minister for Justice, relying on the authorisation given by the Attorney-General, purported to exercise the powers conferred on the Attorney-General by sections 22 and 23 of the Extradition Act in relation to Mr Foster. The Minister for Justice, purporting to act for the Attorney-General, relevantly determined that Mr Foster was to be surrendered to the United Kingdom and issued a warrant for that surrender.
Spender J concluded that the Minister for Justice had not validly exercised the powers conferred on the Attorney-General by the Extradition Act because the Attorney-General had not validly authorised her to do so. In his Honour's view, the powers did not have to be exercised by the Attorney-General personally. They could be exercised, by application of section 19 of the Acts Interpretation Act, by a Minister or member of the Executive Council for the time being acting for or on behalf of the Attorney-General. However, the authorisation given by the Attorney-General to the Minister for Justice was not of a kind contemplated by section 19 and therefore did not operate to enable the Minister for Justice to exercise the relevant powers for the Attorney-General.
Spender J was of the view that section 19 was merely an interpretation provision. It was intended to provide a mechanism whereby the continued orderly administration of Commonwealth Acts could be maintained despite a Minister's inability to perform statutory functions or exercise statutory powers because of illness, absence from Australia, leave or other emergency. The words 'for the time being' limited the circumstances in which a Minister or other member of the Executive Council could be authorised to these kinds of short term circumstances in which a Minister is temporarily unable to perform functions and exercise powers. Moreover, in his Honour's view, section 19 has traditionally contemplated the Prime Minister or Cabinet appointing a Minister in such circumstances to act, for the time being, for or on behalf of another Minister in respect of the entirety of the powers, duties and functions of that other Minister.
The authorisation considered in Foster reflected, in Spender J's view, an attempt by the Attorney-General to consign to the Minister for Justice the administration of specified parts of the Attorney-General's portfolio. It was not truly in the nature of an authorisation and it was not limited to specific circumstances in which the Attorney-General would be unable to perform or exercise relevant statutory functions or powers. Nor was it given or approved by the Prime Minister or Cabinet. As such, the authorisation was not of a kind contemplated by section 19.
Overcoming the Decision in Foster
The Legislative Solution
Shortly after the decision in Foster, the Government put before the Parliament proposed legislative measures designed to remove the uncertainty created by the decision. Parliament enacted the measures in the Acts Interpretation Amendment Act 1998, which commenced on 21 December 1998. The Act contains three specific measures which relevantly address the decision.
First, the Act contains provisions retrospectively validating authorisations given by a Minister to another Minister or a member of the Executive Council to act on behalf of the Minister in the performance or exercise of all or any of the Minister's statutory functions and powers. Any such authorisation which is validated, and which continues in force after the commencement of the Acts Interpretation Amendment Act, may be revoked. However, the revocation must be in writing (see paragraph (b) of clause 2 of Schedule 1 to the Acts Interpretation Amendment Act).
Secondly, the Acts Interpretation Amendment Act amended the Acts Interpretation Act by including in it a new section 18C. Section 18C establishes a mechanism for a Minister to authorise another Minister or a member of the Executive Council to perform or exercise, on behalf of the Minister, statutory functions or powers conferred on the Minister.
The main features of section 18C are as follows.
- Section 18C empowers a Minister (the authorising Minister) to authorise a non-portfolio Minister or other member of the Executive Council to perform or exercise, on behalf of the authorising Minister, functions or powers which the authorising Minister may perform or exercise under an Act, or a provision of an Act, administered by the authorising Minister (see subsection 18C(1)).
- Section 18C operates to extend the operation of any such authorisation to the performance or exercise of functions or powers which the authorising Minister may perform or exercise under subordinate legislation having effect under, or for the purposes of, the Act or provision referred to in the authorisation (see subsection 18C(2)).
- An authorisation under section 18C must be both given and revoked in writing (see subsection 18C(5)).
- An authorisation under section 18C may be effective for a specified period or periods or may have effect for a period which continues until a different person is appointed to the office held by the authorising Minister (see subsection 18C(3)). An authorisation under section 18C may accordingly continue to have effect after the authorising Minister ceases to hold office (for example, because of resignation or death) and before another person is appointed to fill the office.
- Section 18C does not affect the giving of ministerial authorisations under a power existing apart from the power contained in section 18C itself (see subsection 18C(6)).
Thirdly, the Acts Interpretation Amendment Act amended section 19A of the Acts Interpretation Act to deal with the specific situation in Foster. Section 19A now operates so that a reference in a provision of an Act to a specific Minister will, where that provision is administered by that specific Minister, include all Ministers appointed to administer the Department administered by the specific Minister.
The Appeal Against the Decision in Foster
In addition to these legislative measures, the Attorney-General appealed to the Full Court of the Federal Court of Australia against the decision in Foster. In a decision handed down on 16 February 1999, the Full Court (Von Doussa, O'Loughlin and Mansfield JJ) overturned the decision in Foster.
The Full Court disagreed with Spender J's view that section 19 was merely an interpretation provision and concluded that section 19 has a substantive effect. The Full Court made the following significant points in relation to section 19 and the decision in Foster.
- Section 19 recognises and gives effect to the practice of one Minister or a Parliamentary Secretary who is a member of the Executive Council acting for or on behalf of another Minister.
- Section 19 is absolutely general and does not require that an authorisation given under it be assented to by the Prime Minister or Cabinet.
- Consistent with its general nature, section 19 does not operate to limit the circumstances in which a Minister may authorise another Minister to act on his or her behalf to situations where the Minister is ill, absent or otherwise temporarily unable to perform relevant functions or exercise relevant powers.
- The Attorney-General had not purported to rely on section 19 to consign to the Minister for Justice the administration of specified parts of the Attorney-General's portfolio. The Minister for Justice was, like the Attorney-General, appointed to administer the Attorney-General's Department. Moreover, the authority given by the Attorney-General to the Minister for Justice was such that acts performed pursuant to it by the Minister for Justice had the legal character of acts done by the Attorney-General.
- The Extradition Act did not display any contrary intention which excluded the operation of section 19.
Future Authorisations the Status of Section 19
As noted above, section 18C is expressed not to affect the giving of ministerial authorisations under a power existing apart from the power contained in section 18C itself. Section 18C does, however, spell out how, in certain defined circumstances, ministerial authorisations are to be given and revoked. It is therefore arguable that the inclusion in the Acts Interpretation Act of section 18C has limited the scope of a Minister's powers of authorisation under section 19.
If that argument is correct, section 19 no longer empowers
a Minister to give an authorisation of a kind specifically
dealt with by section 18C. That is, section 19 no longer
empowers a Minister to authorise a non-portfolio Minister
or other member of the Executive Council to perform or
exercise functions or powers which the Minister may perform
or exercise under an Act, or a provision of an Act, administered
by the Minister. Section 19 would, however, continue to
empower a Minister to authorise another Minister (whether
in the same portfolio or not) or other member of the Executive
Council to perform or exercise statutory functions or powers
conferred on the Minister by legislation which is not administered
by the Minister.
Section 19 would also continue to empower the Prime Minister or Cabinet to appoint a Minister or member of the Executive Council to act on behalf of another Minister in relevant circumstances.
In light of the possibility that section 18C operates to limit the scope of a Minister's powers of authorisation under section 19, Ministers should continue to rely on section 18C, rather than section 19, in relation to the kinds of authorisations specifically referred to in section 18C.
It should be noted that the Acts Interpretation Amendment Act amended section 19 by removing from it the words 'unless the contrary intention appears'. This amendment should result in there being less scope for arguing, in relation to authorisations under section 19, that particular statutory functions or powers conferred on a Minister must be exercised by that Minister personally.
For legal advice please contact:
Office of General Counsel, Australian Government Solicitor
Leo Hardiman 6253 7074
Henry Burmester QC 6253 7016
Peter Lahy 6253 7085
For policy information about the Acts Interpretation Act please contact:
Attorney-General's Department, Civil Law Division
Sue Pidgeon 6250 6240
Janine Ward 6250 6455
Legal Briefing: 'Devolution of Power Within Government' (No. 24, 4/96);
Legal Briefing: 'After a General Election' (No. 43, 9/98);
Legal Note No. 14 'The Decision in Foster v Attorney-General' (10/98).
For editorial enquiries please contact Tel: (02) 6253 7052, Fax: (02) 6250 5963, E-mail: firstname.lastname@example.org'.
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