Page 1806 - Week 06 - Wednesday, 1 May 1991
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Act - we see that Mr Humphries exercised that discretion properly and, in No. S21 on page 14, set fees under the Drugs of Dependence Act under his hand, not under the hand of some official.
For some reason there has crept into public administration in this Territory the practice that fees under the Health Services Act or its predecessor may be set by an official. Mr Speaker, that official has no power. Professor Pearce, at page 225, refers to the legal maxim, well known to any lawyer on the other side, of delegatus non potest delegare - that is, a delegate may not subdelegate that power. Professor Pearce says:
The broad principle that a person cannot delegate legislative power that has been delegated to him has been accepted with only one or two minor expressions of doubt.
And they say:
The sole judicial reservation seems to have been that expressed by ...
Then there is mention of a Canadian judge in a Canadian wartime case. As any lawyers opposite would well know, wartime defence power cases tend to always err on the side of giving the Executive power because courts in time of war are most reluctant to strike down delegated legislation. Delegated legislation flourishes in those periods and a 1943 expression of some doubt by a Canadian judge is hardly any authority.
The long-established case which is cited in every casebook in administrative law is, of course, the New Zealand case of Hawkes Bay Raw Milk Producers Cooperative Co. Ltd v. New Zealand Milk Board in 1961. The Full Court there, on facts very similar to this, struck down a fee under the Milk Act. The principle there was that the Act gave the Governor-General power to determine fees; the Governor-General purported to delegate the fee-making power to the Milk Board; the Milk Board set fees; a person challenged those fees; the Full Court of the New Zealand Supreme Court said that the Act vested the power in the Minister; the Minister, absent of any express authority to subdelegate, may not purport to give that power to somebody else and the fee set by that other officer is of no validity.
Mr Speaker, we are most concerned that what has happened here, over a period of time, is that that principle has been ignored and officials have been setting fees with absolutely no legal authority. The consequences of that are of some concern to anyone who has a concern for proper administration because, over a period of many years, unlawful fees have probably been charged. I suspect that when the Law Office examines it the advice to Government will be that we had better fix this problem up. It probably will require legislation to fix the problem up. I would hope that the Government takes this on board.
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