Circular No 2001/1 : Cooperative arrangements between the Commonwealth and the states

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Introduction

In May 2000, the Attorney-General wrote to all Ministers regarding the implications of the High Court's decision in R v Hughes (2000 171 ALR 155). The decision concerns the conferral of State powers on Commonwealth officials.

2. At that time, the PSMPC sought advice from the Australian Government Solicitor on the effect of the decision on relevant provisions contained in both the (repealed) Public Service Act 1922 (the old Act) and the Public Service Act 1999 (the new Act).

Agencies were advised at the Comnet meeting in August 2000 that they should be aware of the implications of this case in relation to any arrangements entered into under section 71 of the new Act.

3. The purpose of this circular is to remind agencies of the implications of the decision in Hughes and to seek details of any co-operative arrangements that agencies have entered into with State governments under the relevant provisions of either the old or new Acts.

Implications of the Hughes decision

4. The decision in Hughes concerns the conferral of State powers on Commonwealth officials. It does not have implications for State officials performing Commonwealth powers.

5. The decision potentially has implications for certain arrangements made in the Australian Public Service (APS) under section 71 of the new Act, or under Division 9 of Part III of the old Act.

In accordance with these sections, APS officials may be authorised to exercise powers under State legislation, with the State legislation normally providing the mechanism for appointing persons to exercise the particular powers. Regulation 2.30 of the Public Employment (Consequential and Transitional) Regulations 1999 provides for arrangements previously made under Division 9 of Part III of the old Act to continue in force to the extent their provisions require or permit them to continue in force.

6. Prior to the decision in Hughes, it was assumed that the provisions of the old and new Acts provided sufficient basis upon which State powers could have been conferred on APS officials (at least in the absence of any inconsistent State or Commonwealth legislation).

In the light of Hughes, however, the Australian Government Solicitor has advised that, in respect of arrangements under both the old and new Acts, in so far as those arrangements contemplate the mandatory performance of powers by APS officials under State law, they would be open to challenge, in so far as the functions or powers may be performed or exercised in circumstances outside the Commonwealth's constitutional power.

Arrangements entered into under the Public Service Act

7. To the PSMPC's knowledge, there have been no arrangements made under s.71 of the new Act since its introduction on 5 December 1999. Agencies will, however, need to ensure that they are aware of the implications of the Hughes case when considering any arrangements under this section in the future. Agencies may need to obtain their own legal advice in relation to any such arrangements.

8. The PSMPC does not have comprehensive records of arrangements made under Division 9 of Part III of the old Act. The Attorney-General's Department is examining whether any remedial action needs to be taken in relation to both current and expired Commonwealth/State co-operative schemes and has sought the PSMPC's assistance in identifying the details of any such arrangements.

9. Would you please complete the attached proforma response and fax your return (including nil responses) to the PSMPC by Friday 15 June 2001.

10. The PSMPC's contact on this matter is Laura Hickey, telephone (02) 6202 3859. The fax number for returns is (02) 6273 2756.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

1 May 2001

Circular No 2001/1 : Cooperative arrangements between the Commonwealth and the states

Introduction

Implications of the Hughes decision

Arrangements entered into under the Public Service Act

Proforma