Ms JULIE BISHOP (11:52 AM) —I rise in support of the Acts Interpretation Amendment Bill 1998, which makes amendments to the Acts Interpretation Act 1901. Those amendments seek to address the implications of a recent decision of the Federal Court in Foster v. Attorney-General. The decision in that case sought to invalidate the general authorisation of the Minister for Justice to exercise statutory powers conferred upon the Attorney-General for and on behalf of the Attorney-General. If this decision were to stand, it would impact significantly upon a broad range of government activities and would place severe constraints upon effective and efficient government administration.

The bill in its current framework may at first blush seem to be dealing with rather technical aspects governing the appointment, powers and responsibilities of ministers and members of the federal Executive Council. But when one considers the implications of the recent decision, particularly in relation to the proper management of a portfolio by a minister, the bill deals with significant policy issues in matters of public administration and has the potential to affect a very wide range of government activities. So this bill is necessary and urgent, first to dispel the doubts arising from the Federal Court decision as to the powers of ministers to delegate to other ministers or members of the federal Executive Council. Secondly, the bill seeks to validate the past practices and procedures of this government and previous governments in respect of authorisations made by ministers. Thirdly, the bill seeks to clarify the formal procedures for redistributing executive power between ministers and members of the Executive Council.

The immediate implications of the Federal Court decision are that section 19 of the Acts Interpretation Act 1901 cannot be used by a minister to authorise junior portfolio ministers or another minister to exercise statutory powers vested in the holder of a specific ministerial office. The decision also means that section 19 cannot be used to authorise parliamentary secretaries to exercise statutory ministerial powers.

The opposition, I suggest, is well aware of the practical ramifications which would result from that decision should that decision stand. If, indeed, the minister is not able to so authorise another minister or parliamentary secretary, the workload of that minister becomes overwhelming. The member for Barton recalls how governments are run. He knows that it is absolutely impractical for a minister to have to perform all relevant powers and functions without the ability to authorise other ministers or parliamentary secretaries to act.

The bill, and I mention the foreshadowed supplementary amendments of the government, not only validates past authorisations but enhances the procedure for authorisations from a portfolio minister to another minister in the portfolio or indeed to a parliamentary secretary. The member for Barton can be assured that the foreshadowed supplementary amendments provide that authorisations must be in writing. So this addresses the concern about unwritten authorisations.

The opposition has a foreshadowed amendment and a copy has been circulated. I have been through it in some detail and it seems that the opposition is attempting to ensure that public administration grinds to a halt. The proposed amendment is that `The Prime Minister or Cabinet may authorise a non-portfolio minister or member of the Executive Council, who is not a minister, to act on his or her behalf'. There are some drafting problems in that document, so I will not go into it in any detail. I am sure that the member for Barton will consider that as it gets to the consideration in detail stage. Obviously the subject matter of this bill is not about delegation by the Prime Minister or cabinet of their statutory functions; it is about a minister authorising another minister or parliamentary secretary to act on that minister's behalf.

The same foreshadowed amendment of the opposition states `The Prime Minister or Cabinet may, during the temporary absence or incapacity of a minister'. What is determined to be a `temporary absence' in terms of days or weeks? What is `incapacity'? How is that defined? For how long, for what time period, will it be determined? The opposition's foreshadowed amendment also refers to a proposed provision, 18C(3)(b), whereby the time period would include `a time referred to in the authorisation afterwards to continue to have effect until another person is appointed'. So there seem to be some internal inconsistencies here between an expectation that this will only occur during relatively short periods of absence or incapacity and then an extremely open-ended arrangement which is anticipated between the time of authorisation and the appointment of another person to that office.

As to the proposal that it be only the Prime Minister or cabinet who may authorise a non-portfolio minister or a member of the Executive Council to act, surely even the opposition can see that the administration process would grind to a halt. If the Prime Minister happens to be too busy to write authorisations and if one can assume that the Prime Minister's time ought be directed to a higher order of decision making, the authorisations are to be sent to cabinet. Is it intended that every member of cabinet prepare and sign a written authorisation? Surely not. So it must mean that cabinet, through a recorded decision of cabinet, makes the written authority in each and every instance. How is it anticipated that the cabinet will make decisions on these authorisations, bearing in mind that the opposition is talking about authorisations for temporary periods, temporary absences or periods of incapacity of the minister? So there will be a backlog of authorisations.

In extradition proceedings, time is often of the essence. The opposition will not have a portfolio minister delegating so we have to track down the Prime Minister, or track down all of cabinet, get cabinet together, and add more items to the agenda to make a decision about an authorisation. What has been done efficiently and effectively in the past by both the coalition and Labor—when in government—is that the minister authorises a junior minister, or another minister, or a parliamentary secretary to exercise statutory powers for or on his or her behalf.

The absurdity of limiting the authorisation process to the Prime Minister and/or cabinet, in whatever guise, is apparent when one considers—as both members opposite will know—the Attorney-General has powers to delegate to departmental officers. Yet the opposition says, `No, the Attorney-General cannot delegate to a junior minister or a parliamentary secretary, only the Prime Minister and/or cabinet can.' Under the Law Officers Act 1964, strictly speaking, the Attorney-General would be able to delegate to a base grade officer his power to determine whether an eligible person should be surrendered for extradition. Yet the opposition will not authorise him to delegate that same power to a minister of the Crown or a parliamentary secretary.

As for the validation amendment, I have already indicated that there is a supplementary amendment foreshadowed by the Attorney-General in relation to future authorisations. But, as for validations, the proposed amendment ensures that, however and in whatever manner previous authorisations have been made by ministers, they are validated. This gives certainty to previous authorisations and, more importantly, to the validity of subsequent actions taken in reliance on those authorisations. One cannot unscramble the eggs. So the foreshadowed amendment restores the law to the position recently thought to exist prior to the Federal Court decision to which I have referred.

The bill certainly raises the bar in terms of the procedures to be adopted for authorisations; it is not just enshrining the practice of the past but sets out a specific procedure for authorisations that they be in writing, which of course overcomes any procedural difficulty which might otherwise have arisen at a later date in ascertaining which minister might have exercised the relevant power.

I will not go into further detail on the opposition's amendment. Suffice it to say that the foreshadowed supplementary amendments deal with one of the concerns raised about the procedure of future authorisations, and it is anticipated that they be in writing. I support this legislation with the foreshadowed supplementary amendments of the government.