Canberra, 3 June 1968
B270/4645. Unclassified
Ministerial Members
Further to discussions yesterday there seems no difference between the Department and the Administration on paragraphs 1 and 2 and 8 and 9 of our re-drafted approved arrangements2 if we amend paragraph I of our draft by including at the end of the second sentence the words ‘ which he would have helped formulate ’.
2. The real issue seems to concern the relationship between the Ministerial Member and the departmental head. You will recall that the Administration draft of CWP23 proposed that
(a) the Ministerial Members would ‘assist’ the departmental head; and
(b) policy proposals would be processed in the I.D.C.C.
3. Paragraphs 3, 4, 5, 6 and 7 of our latest draft are designed to implement the recommendation in paragraph 9 of the Select Committee report4 that the Ministerial Member would be responsible with the departmental head for policy and for the overall activities of a department. It seems inconsistent with this for executive authority to remain vested in name in a departmental head or an Assistant Administrator. Our proposal for a financial delegation to the Ministerial Member of the same amount as the departmental head accords with the approach of the Select Committee. The departmental head could then exercise the delegation in the absence of the Ministerial Member but if the Ministerial Member were available the arrangement would specifically require both to agree to the exercise of the delegated power.
4. We have no details of statutory or administrative delegations which have been made but the same principle would seem to apply to all delegations. It would not accord with the Select Committee report for a delegated power in relation to a function of a department with a Ministerial Member to remain legally vested in an Assistant Administrator or a departmental head. If the Ministerial Members are to accept some responsibility for the decisions of government so that they support them in the House of Assembly (and for that matter in the United Nations) it seems important that a procedure should be laid down to ensure that a Ministerial Member has specifically approved the decision and that arrangements gave him the authority to approve or reject that decision.
5. The Administrator is concerned to ensure that the papers do not show the Ministerial Members as being ‘tame cats’ or ‘stooges’.5 Unless the arrangements provide a procedure under which Ministerial Members can refuse to accept proposals put to them then the ‘tame cat’ or ‘stooge’ allegations will be likely to stick.
6. It also seems that a reference to delegation is necessary to give effect to sub-section (2) of section 256 read together with the passage in the second reading speech ‘the administrative functions exercised by a Ministerial Member would be derived from the Administrator’. It seems clear from the Administration message 5363 of 3rd June7 to which a separate reply is being sent8 that the Administration is not aware of the reasons behind this sub-section or that this provision has substantive Governmental authority.
7. With regard to the point about increased powers in two years time9 the Act does not confer powers on Ministerial Members and they will have no powers unless these are specifically conferred by approved arrangements. Whatever flexibility may be required to give scope for a further move in two years it is necessary for present purposes to define specifically how the arrangement for a sharing of powers is to work in present circumstances.
[NAA: A452, 1970/4521]
1 Warwick Smith was in PNG.
2 Document 193—a paraphrase of the arrangements earlier submitted to Barnes (see footnote I, Document 185).
3 See attachment to Document 171.
4 See Document 118.
5 See Document 194.
6 See editorial note ‘Changes to the Papua and New Guinea Act’.
7 Based on comments made in the Territory’s Department of Law, Hay wrote that he found the provision ‘puzzling’, and he remarked, inter alia, that the expression ‘in relation to the government’ was not easy to define; that there would be an unclear relationship between the section of an ordinance conferring powers, functions or duties and the rest of the ordinance; that the exception allowing conferral of powers under an ordinance was already in practice, ‘thus defeating the whole apparent object’; and that the reference to delegation of powers was ‘either … ex abundantia cautela or negates the primae facie meaning of the earlier words’. Hay commented that he was ‘so confused that I feel that the Attorney-General’s Department should be asked as a matter of urgency for an opinion on the scope of the provision’ (telex 5363, Hay to DOET, 3 June 1968, NAA: A452, 1970/4521).
8 Territories replied that telex 5363 was ‘received with some surprise’ because it seemed ‘out of accord’ with paragraphs 4 and 5 of Document 194 and as the Administration had had a draft of the provision since 28th April—and had in fact ‘specifically agreed’ to a provision along these lines. Nonetheless, the Parliamentary Draftsman had been consulted ‘but he does not share your concern’. The telex thereafter dealt with the Administration’s concerns on a point by point basis (telex 8270/4667, 4 June 1968, ibid.).
9 See Document 194.