Legal Briefing No. 44

Number 44

(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

Related Publications:

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: olip@ags.gov.au'.

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this briefing.

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