Senator MINCHIN (Industry, Science and Resources) (4:45 PM) —I table a revised explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard .

Leave granted.

The speech read as follows—

This 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 result of the case is that section 19 cannot be used to authorise junior portfolio Ministers, or another Minister, to exercise statutory powers vested in the holder of a specific ministerial office. Decisions by portfolio Ministers in relation to statutory powers conferred upon the `Minister' are not affected as section 19A of the Acts Interpretation Act provides that such references are effectively taken to mean all Ministers appointed to administer the relevant department. The decision also means that section 19 cannot be used to authorise Parliamentary Secretaries to exercise statutory ministerial powers.

The proposed amendments will provide for a Minister to authorise a non-portfolio Minister or a Parliamentary Secretary to act on his or her behalf.

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.

The amendments also validate past authorisations that have been made in reliance on section 19 to the extent that they may be invalid. The amendments provide that any purported past authorisation, whether in writing or oral, is taken to have been validly given. This ensures that decisions made in reliance on those authorisations are not subject of further legal challenge.

The bill also amends section 19A to ensure that all Ministers within a portfolio, where appropriate, can exercise the statutory powers of the portfolio Minister.

The bill also makes related amendments to section 19BA to ensure that an order can be made by the Governor-General under that section 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.

In the Foster decision Spender J recognised that both Cabinet and the Prime Minister have traditionally been able to appoint a Minister or member of the Executive Council to exercise a statutory power vested in another Minister for and on behalf of that other Minister. In particular, His Honour noted that Cabinet or the Prime Minister may make an appointment of that kind where the other Minister is unable to exercise the relevant power through illness, absence or more generally. Section 19 of the act is being retained to ensure that Cabinet and the Prime Minister retain the powers of appointment recognised in the Foster decision.

An appeal has been lodged in the Foster case. However, because of the implications of the decision it is appropriate that urgent legislative action be taken to clarify the position and to validate past authorisations made in reliance of section 19 of the act. The validation provisions restore the law to the position that was reasonably thought to have existed prior to the decision in the Foster case.

The bill will not have a significant financial impact.

Debate (on motion by Senator Quirke) adjourned.