Page 1807 - Week 06 - Wednesday, 1 May 1991
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I guess it is fair to say that there was a political aspect in this move by the Opposition to move disallowance because of the inherent contradiction between the Minister's statements on Mr Bissett's financial powers and his exercise of financial powers. It is quite proper for the Opposition to make that political attack and I guess it is proper for the Government to respond in a political way to that attack. But there is also a very fundamental issue of principle involved here and I would hope that the Government would respond to that very carefully. I am aware of no authority - and I have looked into this in some depth - which would say that a power vested in a Minister to determine fees may be exercised by the delegate of the Minister absent of statutory provision.
The High Court was recently looking at this in a case of Foley v. Padley in 1984. (Extension of time granted) I thank the house. I will wind up and put this on the record for the Law Office. I will be very brief. In that case a council had power to make delegated legislation by way of by-laws. The Adelaide City Council made a by-law which prohibited persons handing out material in the Rundle Mall but said that an officer could approve it. There was an argument run there that that was a subdelegation of legislative power. The High Court said, "Well, the general principle is that you cannot subdelegate legislative power, but it is all right if you have a general prohibition that may be relaxed by an official". So they are prepared to stretch the rule in that direction, but there is not even a hint in any authority that I can find that when a Minister is authorised to make determinations in relation to fees he has power to subdelegate that.
Mr Humphries, no doubt relying on advice and relying on practice over many years - I am not attacking Mr Humphries for doing the wrong thing here - has done what his predecessors have done and what has occurred well before self-government; but I suspect that there is a major flaw in that process because there simply is not the proper chain of authority that validates the fees.
Mr Bissett acted pursuant to section 48, but section 48 says that the Minister must act. Any attempt by the Minister to delegate that power would appear to be invalid. I suspect that the Government will have to look very carefully at this, and I would recommend that the situation be rectified by legislation.
Debate (on motion by (Mr Collaery) adjourned.
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