Page 1805 - Week 06 - Wednesday, 1 May 1991
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In report No. 16 of 17 October 1990 it again asked the question. The committee said:
... could the Committee be told what the source of power is? As this could affect the validity of the collection of any monies under this Determination and its predecessors, the answer to this question is significant.
No answer was or has been received.
Mr Speaker, there is clearly no power in this Act or its predecessor expressly authorising the Minister to delegate his or her power to set fees under section 48, or indeed to make regulations under section 58, to an official or any other person. It is interesting to contrast this lack of an express power to delegate with the power to enter property in section 54 of the Health Services Act, which clearly provides that the Minister or a person authorised in writing by the Minister may enter property to conduct certain inspections and so forth. It is also interesting to contrast the Minister's powers with the board's powers. By section 9 of the Act any power vested in the board may expressly be delegated by instrument in writing to any other person. But the Minister's power may not be delegated.
Mr Speaker, this is not the place for detailed legal argument; but I would refer Mr Humphries and, indeed, the Attorney-General to Professor Dennis Pearce's work Delegated Legislation, page 225 and following. The principle is glaringly obvious and simple in administrative law that subdelegation of legislative power is invalid. Unless there is an express power authorising the subdelegation of legislative power it is invalid.
Mr Humphries said in his remarks that Mr Bissett, exercising a delegation under his hand, made these fees. Mr Speaker, that is not an answer. The Act expressly says that fees may be made by the Minister in exactly the same terms as the Act says that regulations may be made by the Executive. This house would properly be outraged if, in any other Act where there is a power to make regulations, the Chief Minister, for example, purported to give that regulation-making power to some junior official. Regulations are made under the hand of Ministers. When an Act says that a Minister has the power to determine fees, those fees must be determined under the hand of the Minister. Obviously the work will be done by officials and it will be submitted to the Minister for his signature. It will be done in that way. That clearly is not an onerous task.
It is interesting that in the very Special Gazette that contains the fees under challenge - indeed on the very next page - under the Drugs of Dependence Act 1989, which has an identical power where the Minister may determine fees - the identical provision that is found in the Health Services
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