Page 46 - Week 01 - Tuesday, 13 February 1990
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I expect you have already encountered those. If you look at sections 50 and 51 of the Self-Government Act you will understand that nobody, other than the Minister, is able to direct a departmental head.
MR SPEAKER: Order, Mr Wood. Your time has expired.
MR COLLAERY (Deputy Chief Minister) (4.43): Mr Speaker, I will be brief. The Government has received competent legal advice which puts to rest the arguments that have been advanced on the illegality or the inconsistency of the arrangements made by the Chief Minister with respect to Executive Deputies.
Mr Wood: We just maintain that it is a real muddle.
MR COLLAERY: Firstly, Mr Speaker, it was refreshing to hear our colleague, Mr Wood - at least he did not go into sour grapes and personalities. I think the only show of that today has been, regrettably, from the other side of the house.
The collegiate style that perhaps we all aspire to has to meet the provisions of the Self-Government Act as my colleague Mr Wood mentioned. Briefly, in section 39 and section 41(1) the Act provides that we have a ministry of four. Those powers can only be divided among the Ministers; section 43 makes that clear. That gives Ministers executive power. Ministers can legally bind the Government, and it is on a basis such as that we have had to abide by an arrangement made, for example, at Tuggeranong for some offices. So it is well settled in law that executive power rests in the Ministers.
It is further settled in law that a Minister is not bound to give his or her sole attention to matters personally. We are all used to delegations. We are all used to Ministers delegating power to senior officials. Indeed this concept was recognised by Lord Justice Denning, in a famous 1949 House of Lords decision. That case has been consistently recognised in the courts of this land and it was affirmed again, on my advice and to my knowledge, by the High Court in 1982. Clearly there is a power to delegate. That power to delegate in common law has now been given statutory recognition in section 54 of the Self-Government Act. We have senior public servants who can exercise executive power, and the Head of Administration is responsible, as Mr Wood pointed out, - in sections 50 and 51 for units and components of government.
Section 5 of the Administration Act 1989, a separate piece of legislation, gives the power subject to any contrary intent in any legislation. Sometimes that is only power to give the public servants a power to delegate. To my knowledge there have been no delegations of power - and I could be corrected by my ministerial colleagues - to any Executive Deputy, nor has it ever been foreshadowed in Cabinet that we would delegate executive powers to the Executive Deputies.
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