‘If a Minister purports to… perform a function… that is conferred or imposed on another Minister by an Act, the… performance of that function… is not invalid merely because the… function… is conferred or imposed on the other Minister.’
The Civil Law and Justice Legislation Amendment Act 2018 (Cth) (the new Act) received Royal Assent and commenced on 25 October 2015. The new Act makes several changes to various pieces of legislation, one of which relates to powers conferred on Ministers under the Acts Interpretation Act 1901 (Cth) (the AIA). Subsection 19D of the AIA previously read as follows:
19D Machinery of government changes—saving the validity of acts done by authorities
Saving the validity of acts done by authorities
(1) The purported exercise or performance of a power, function or duty by or on behalf of an authority (see subsection (5)) is not invalid merely because, following a machinery of government change, the power, function or duty:
(a) is conferred or imposed on another authority; or
(b) is conferred or imposed on the same authority under another name or title; or
(c) is no longer conferred or imposed on any authority.
…
(5) In this section:
authority means any of the following persons or bodies:
(a) a Minister;
(b) a Department of State of the Commonwealth;
(c) any other Agency within the meaning of the Public Service Act 1999;
(d) an office (including an APS employee’s office and any other appointment or position), or the holder of an office.
The only change made to the above provisions is that the word ‘The’ under s 19D(1) was replaced with ‘Subject to section 19E, the’. Section 19E was was added as follows:
19E Validity of acts done by Ministers
If a Minister purports to exercise a power or perform a function or duty that is conferred or imposed on another Minister by an Act, the exercise of that power or the performance of that function or duty is not invalid merely because the power, function or duty is conferred or imposed on the other Minister.
Disclaimer: the above is a mere tentative analysis of a new piece of legislation. The views expressed in those documents might not reflect the view of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au