Case: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582
Outcome: cited
Section 143(1)(c) of the Evidence Act permits the Court to take judicial notice of each instrument, without proof, as an order of the Governor-General in Council made under ss 64 and 65 of the Constitution : Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at [35] . Each instrument is signed by the Governor-General, sealed with the Great Seal of Australia and counter-signed by the Prime Minister of Australia. In accordance with ss 150(3) and (4) of the Evidence Act , it is to be presumed that each instrument was properly attested and, when read with cl 8 in Pt 2 of the Dictionary of the Evidence Act , it is to be presumed that the reproduction of the instrument before the Court is a true copy of the original. There is no evidence to the contrary. Each instrument is admissible and its contents proven under ss 143(1)(c) and ss 150(3) and (4) of the Evidence Act . 29 As a result, the Attorney-General and the Justice Minister are each Ministers of State, members of the Federal Executive Council and directed and appointed by the Governor-General to administer the Attorney-General's Department. The legislation administered by that department includes the Extradition Act , including s 40. 30 The dual administration of the Attorney-General's Department (and therefore the Extradition Act ) is consistent not only with the exercise of executive power as prescribed by the Constitution but is expressly provided for by s 19A of the AI Act . 34 Secondly, the executive and administrative arrangements expressly provide that the Justice Minister is one of two Ministers to administer the Extradition Act (including s 40), being arrangements necessary in the interests of efficient government administration: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at [37] and [42] and Zoeller v Attorney-General for the Commonwealth &amp; Ors (1987) 16 FCR 153 at 165. 37 As noted earlier, ss 19 and 19A of the AI Act were amended after the decision of Spender J and before the decision on appeal: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. Parliament amended ss 19 and 19A of the AI Act in 1998 (see Acts Interpretation Amendment Act 1998 (Cth)), because of the " serious implications for government administration " which resulted from the decision of Spender J: Explanatory Memorandum, Acts Interpretation Amendment Bill 1998 (Cth) at 1. 38 By the 1998 amendments ss 19 and 19A of the AI Act were amended as follows: (1) the phrase "unless the contrary intention appears" was deleted from s 19 ; and (2) s 19A(1) was amended to provide that a reference to a Minister, whether specific or generic, was taken to be a reference to all Ministers appointed to administer a particular department. 39 The amendments were explained in the Explanatory Memorandum, Acts Interpretation Amendment Bill 1998 (Cth) in the following terms: "Item 3 Section 19 13. The phrase 'unless the contrary intention appears' has created problems in relation to Acts that provide for a Minister to delegate his or her powers, one view being that the existence of a power to delegate may evince a relevant contrary intention. Item 3 amends section 19 by deleting the reference to contrary intention to ensure that these problems are not perpetuated. 14. 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. Item 4 Subsection 19A(1) 15. Item 4 amends subsection 19A(1) to provide that a reference to a Minister, whether specific or generic, is taken to be a reference to all Ministers appointed to administer a particular department, that is, all Ministers within the one portfolio. This will allow all Ministers within a portfolio to exercise relevant statutory powers of the portfolio Minister, where appropriate. 16. The reference to 'contrary intention' has been retained in section 19A as there is no question of a power of delegation giving rise to a contrary intention for the purposes of that provision." 40 Against that background, it is apparent that s 19A of the AI Act was amended to ensure that the reference in a provision to a Minister (specific or generic) is taken to be a reference to " all Ministers appointed to administer a particular department, that is, all Ministers within the one portfolio ." Section 19A(1) of the AI Act expressly acknowledges not only that the joint administration of the Attorney-General's department is possible but, as the Explanatory Memorandum makes clear, the " serious implications for government administration " if such a situation were not permitted. 41 After ss 19 and 19A of the AI Act were amended, the decision of Spender J went on appeal and was overturned: Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. The Full Court dealt with s 19 of the AI Act before it was amended and held that: (1) s 19 of the AI Act was not merely one in aid of interpretation of legislation but had a substantive effect: at [36]; (2) efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes: at [37] citing Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) and O'Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74 ; (1983) 153 CLR 1 at 11; (3) the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by " a Minister of State administering " that Department, is itself a sufficient indication that the Executive Council contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice: at [40]; (4) ss 22(2) and 23 of the Extradition Act do not indicate a contrary intention which excludes the operation of s 19 of the AI Act in respect of the exercise of power vested in the Attorney-General: at [42]; (5) in determining whether a statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: at [42] citing Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 at 93 and O'Reilly at 11. 44 Finally, the fact that the Law Officers Act 1964 (Cth) gives to the Attorney-General a general power to delegate to the Solicitor-General (s 17(1)) or to the Secretary of the Attorney-General's Department or " to the person for the time being holding or performing the duties of the office specified in the instrument of delegation " (s 17(2)) all or any of his or her powers and functions under all or any of the laws of the Commonwealth, is further evidence that s 40 of the Extradition Act did not evince a contrary intention. As the Full Court said in Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at [43] : "That the laws of the Commonwealth permit the delegation of the powers reposed in the Attorney-General under the Extradition Act to others who are not directly answerable to Parliament, lends weight to the conclusion that the nature of the powers reposed in the Attorney-General under the Act need not be exercised personally by the holder of that office." 45 Although Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582 was concerned with ss 22(2) and 23 of the Extradition Act and the language of s 40 of the Extradition Act is different, the decision of the Full Court and the principles established by it are directly contrary to the Applicant's contentions. As explained above, there is nothing to suggest that s 40 of the Extradition Act evinces a contrary intention for the purposes of s 19A of the AI Act . To adopt the Applicant's construction of the two sections read together would require me to ignore the history and express words of s 19A of the AI Act and the observations of the Full Court in Attorney-General v Foster [1999] FCA 81 ; (1999) 84 FCR 582. There is no occasion to do so.