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Thursday, 26 November 1998
Page: 757

Mr WILLIAMS (Attorney-General) (12:17 PM) —in reply—I thank the members who have spoken in this debate. It is one of the more dignified debates that have been held in this House on a fairly, for a layman, arcane subject. I specifically thank the member for Barton for indicating at least general support of the opposition for the bill.

There are a number of things that can be said about this. One thing that should be said at the outset is that the government does not believe the decision of Justice Spender is right, either in principle, on practice or in relation to precedent. As the member for Denison mentioned, an appeal has been brought. It is actually being argued in the full Federal Court in Adelaide today. It is not my delegate who is appearing for the Commonwealth; it is the Solicitor-General who is standing in his own right.

On the subject of Mr Foster himself, Mr Foster took a number of grounds of objection to the extradition proceedings. He lost on all of them, except the one technical point on which he did succeed. The member for Denison specifically asked what Mr Foster's rights are. If the appeal is not upheld and if there is no appeal to the High Court or an unsuccessful appeal to the High Court, then Mr Foster will be in a position of having set aside the extradition proceedings, but there would be nothing to stop a fresh process being commenced. I do not want to foreshadow any decision that might be taken. It might be I who might be obliged to take it, but one possibility is that simply a fresh process is commenced, following the procedures prescribed by the judgment of Justice Spender.

Like the member for Denison, I have no idea whether Mr Foster is a villain or not. Under the law to which he has sought to be subject to a criminal process, he is entitled to be treated as innocent until proven guilty. We are not concerned with his particular case in this bill; we are concerned only with the government procedure of delegation of authority by ministers. The bill provides that all ministerial authorisations that may have been affected by the decision in the Foster case are validated.

Because of the implications of the decision, it is appropriate that urgent legislative action be taken to clarify the position of ministerial authorisations. I do not see that as a belt and braces exercise, as both the member for Barton and the member for Denison have referred to it. I think the significance of the decision was, in fact, highlighted by the member for Barton in his reference to the legislation under which potential authorisations of ministers or parliamentary secretaries to act for other ministers could be taken.

The amendments in the bill will ensure that there is no uncertainty about the legal status of decisions made under any of the sorts of authorisations in question. The bill also clarifies the legal basis for senior portfolio ministers to authorise junior ministers and parliamentary secretaries to exercise statutory powers on their behalf. As members are aware, the speedy passage of this bill will restore certainty to government administration.

Can I comment on the reference in legislation to specific ministers. It can be suggested, and has been, that a reference to a specific minister indicates that parliament's intention is that only that minister perform the relevant function. As was argued before Justice Spender in the proceedings at first instance, that is not correct.

Following ministerial rearrangements in 1987, it was considered appropriate that all ministers appointed to administer the same department should have the same legal powers and responsibilities. Accordingly, section 19A of the Acts Interpretation Act was amended to provide that general references in an act to the minister include all ministers appointed to administer the act. In some cases, references to a specific minister merely indicate that a minister in another portfolio has responsibility for the function. For example, in relation to financial matters or legal matters, a reference might be made to the Treasurer or to the Attorney-General.

It is misconceived, in my respectful view and that of Justice Spender's submission, to read into such provisions the idea that parliament intended that the named minister and only the named minister exercised the relevant power. In the Attorney-General's portfolio, we have a specific piece of legislation dealing with issues such as these. The Law Offices Act allows for the Attorney-General to delegate his powers and functions to the Solicitor-General, the secretary of the department or any office holder in the department. Similar broad powers of delegation are common in other portfolios. In fact, the Cultona principle, named after the case of that name, holds that as a general common law principle.

It seems wrong to support the view that a reference to a specific minister indicates that parliament meant only that minister can perform the relevant task when that minister could delegate the task to a relatively junior departmental officer. There is no good reason why a statutory reference to a specific minister should not be read as including all ministers responsible for the relevant portfolio.

It follows that the proposed amendments are consistent with the policy of this government and of former governments, and are consistent with constitutional responsibility of ministers under section 64 of the constitution. All ministers are appointed under that section to administer entire departments of state.

The government has taken note of concerns raised about the proposed provision which would have allowed for oral authorisations to be given to a minister. Some concerns have been expressed that, if unwritten authorisations given to ministers become common, the paper trail of government decisions may be difficult to follow, and may create practical and procedural difficulties for anyone seeking to review or challenge an administrative decision.

I question the weight of those concerns but can understand why they are made. In the light of the concerns, it is proposed to amend the bill to provide that authorisations given to both ministers and parliamentary secretaries must be in writing, notwithstanding that this will reduce the flexibility of ministerial authorisations.

On the question of validation of past oral authorisations, I am advised that there have been such delegations in the past by both the current government and previous governments, and that these should be validated. Future authorisations, however, as I have just foreshadowed and the member for Curtin foreshadowed, will be required to be in writing.

The member for Barton in his speech suggested that divisions of responsibility between ministers should be dealt with by the administrative arrangement order. In fact, that is not the way it works. The administrative arrangements orders do not, and have not in the past, set out the specific areas of responsibility as between portfolio ministers and other ministers, or as between ministers and parliamentary secretaries. That, I think, is not the appropriate place for the fixing of anything but the general portfolio responsibility.

I note that the member for Barton opposes the validation of oral delegations, but the reasons he raised—that they prevent audit and prevent redress—I suggest are open to some question. I cannot see why judicial review, for example, cannot be taken, no matter who took a decision; and, if the process of suing the wrong minister or suing a minister in lieu of a parliamentary secretary occurs, it seems to me that legally the portfolio minister may well still be responsible for the decision of the delegate in legal terms, and the processes of litigation would effectively enable discovery or whatever else is required in order to identify the reasons.

The suggestion that there are loose arrangements allowing job sharing among ministers or ministers and parliamentary secretaries I think is inappropriate. But we do accept that the wholesale use of oral arrangements would be inappropriate—and it is not suggested that that has occurred, and it is certainly not suggested that it should occur in the future.

The member for Barton's reference to the Foster case I think highlighted the actual narrowness of the ground upon which the judge thought it appropriate that there be authorisations by ministers for others to act. It is not only in the case of illness or absence or leave or other emergencies that authorisations are required. The sharing of the considerable burdens of ministerial responsibility require that there be some system of authorisation. To limit it to simply the Prime Minister or cabinet would, in our view, be insufficiently flexible, and it is certainly not consistent with past practice.

As foreshadowed, it is proposed to move government amendments. I will move them when we move to the consideration in detail stage.

Question resolved in the affirmative.

Bill read a second time.