Social Welfare Commission Act 1973

Body corporate with perpetual succession. Under section 4, the Commission is a distinct legal entity. It may hold property, sue and be sued in its corporate name. Its common seal attracts judicial notice and a presumption of due execution.

Advisory and investigative character. The Commission does not administer social welfare programs. Its statutory functions under section 14 are confined to research, inquiry, evaluation, estimation of costs and making recommendations. It has no power to implement programs, allocate grants or direct other agencies.

Dual membership structure. Section 5 creates a Commission of eleven members: a full-time Chairman, a full-time Deputy Chairman and nine part-time Commissioners. All are appointed by the Governor-General. The full-time and part-time distinction affects remuneration, leave, termination grounds and acting appointment provisions.

Expenditure control. Section 15(2) imposes a strict limitation: the Commission cannot incur expenditure except on behalf of Australia, and cannot do so without the Minister’s approval. This is a fundamental constraint on the Commission’s practical operations.

Ministerial oversight. The Minister approves leave for the Chairman and Deputy Chairman (section 8), determines terms for acting appointments (section 12(6)), approves functions beyond the listed ones (section 14(g)), and must approve expenditure (section 15(2)). The Commission’s reports go to the Minister, who then tables them in Parliament.

Secrecy regime. Section 21 creates a comprehensive secrecy obligation. It applies to Commissioners, committee members and staff. It prohibits recording or divulging information about another person’s affairs acquired through the Act, and creates an immunity from being compelled to produce documents or divulge information in court proceedings.

The Commissioners. Eleven individuals appointed by the Governor-General serve as Chairman (full-time, up to seven years), Deputy Chairman (full-time, up to five years) and part-time Commissioners (up to three years). A person aged 65 or over cannot be appointed or re-appointed as Chairman or Deputy Chairman, and an appointment cannot extend beyond a Commissioner’s 65th birthday. Commissioners are eligible for re-appointment.

The Minister. The Act confers significant powers on the Minister responsible for administering the Act. The Minister receives reports, approves or directs functions, approves leave for the two full-time officeholders, approves external paid employment for full-time Commissioners and controls the Commission’s expenditure. The Minister also causes reports to be tabled in Parliament.

The Governor-General. The Governor-General appoints and may terminate Commissioners for misbehaviour or incapacity, and in the specified automatic termination circumstances under section 11, the Governor-General must terminate.

Members of Parliament serving as Commissioners or committee members. Sections 7(4) and 17(4) contain special remuneration rules for parliamentarians. They do not receive prescribed fees or allowances but may be reimbursed reasonable expenses with Ministerial approval.

Staff. The Commission’s staff are employed under the Public Service Act 1922-1973. The Chairman exercises the powers of a Permanent Head over that staff as if it were a separate department. The Chairman may delegate those powers to the Deputy Chairman.

Former public servants appointed as Chairman or Deputy Chairman. Section 20 preserves existing and accruing rights of persons who were Australian Public Service officers or covered by the Officers’ Rights Declaration Act 1928-1969 immediately before appointment.

Witnesses appearing at Commission inquiries. Section 18 provides for payment of prescribed allowances for expenses.

Persons and organisations whose affairs are investigated. The secrecy provision in section 21 protects information about the affairs of persons and entities that comes into the Commission’s possession.

The Parliament. The Minister’s obligation under section 16(2) to table Commission reports ensures that both Houses receive the Commission’s work product.

Duties of the Commission

The Commission must hold such meetings as are necessary for the performance of its functions (section 13(1)). It must furnish reports as the Minister requires (section 16(1)). It cannot incur expenditure without Ministerial approval (section 15(2)).

Duties of the Minister

When the Commission furnishes a report to the Minister, the Minister must, as soon as practicable, cause it to be laid before each House of the Parliament (section 16(2)). This is a mandatory tabling obligation.

Rights of the Commission

The Commission has power to do all things necessary or convenient for performing its functions (section 15(1)). This includes conducting public inquiries and engaging persons or institutions to carry out research or supply information. It may appoint committees to assist it, composed of Commissioners or non-Commissioners (section 17). It may furnish reports to the Minister on its own initiative in addition to those the Minister requires (section 16(1)).

Rights of the Chairman

The Chairman has all the powers of a Permanent Head under the Public Service Act 1922-1973 over the Commission’s staff (section 19(2)). The Chairman is deemed to be a Permanent Head for purposes of certain delegation provisions under that Act (section 19(3)). The Chairman may delegate those staff powers to the Deputy Chairman (section 19(4)). The Chairman, or Deputy Chairman if the Chairman cannot act, may convene meetings (section 13(2)). The Chairman presides at meetings and holds a deliberative and casting vote (section 13(5) and (8)).

Rights of Commissioners

Full-time Commissioners are entitled to remuneration and allowances fixed by Parliament or, until 1 January 1975, as prescribed (section 7(1)-(2)). Part-time Commissioners are entitled to prescribed fees, expenses and allowances for meeting attendance and approved business (section 7(3)). Commissioners may resign by writing addressed to the Governor-General (section 10). The Chairman and Deputy Chairman may, with Ministerial approval, engage in paid outside employment (section 11(a)).

Secrecy obligations

Every Commissioner, committee member and staff member is prohibited from recording, divulging or communicating information about another person’s affairs acquired through the Act, or producing related documents, except for the purposes of the Act (section 21(2)). They are also immune from being compelled to produce documents or divulge information in court (section 21(3)).

Meetings and voting

Six Commissioners (including the presiding officer) constitute a quorum (section 13(4)). Questions are decided by majority vote. The presiding Commissioner has a deliberative vote and, if votes are equal, a casting vote (section 13(7)-(8)). The Chairman may be compelled to convene a meeting on written request signed by three Commissioners (section 13(3)).

Offence under the secrecy provision. Section 21(2) creates an offence. The penalty is $1,000 or imprisonment for three months. The prohibition applies to making a record of, divulging or communicating information about another person’s affairs, and to producing documents relating to another person’s affairs, in each case except for the purposes of the Act.

Termination for misbehaviour or incapacity. Section 9 permits the Governor-General to terminate a Commissioner’s appointment for misbehaviour or physical or mental incapacity.

Mandatory termination grounds. Section 11 requires the Governor-General to terminate a Commissioner’s appointment in four specific circumstances:

• the Chairman or Deputy Chairman engaging in paid employment outside the duties of office without the Minister’s approval;
• the Chairman or Deputy Chairman being absent from duty without Ministerial leave for 14 consecutive days or 28 days in any 12 months;
• a part-time Commissioner being absent without Commission leave from three consecutive meetings; or
• the Commissioner becoming bankrupt, applying for relief as an insolvent debtor, compounding with creditors or assigning remuneration for their benefit.

The distinction between the discretionary power in section 9 and the mandatory obligation in section 11 is significant. The former requires a judgment about misbehaviour or incapacity; the latter operates automatically on proof of the specified events.

Immunity from compelled production in court. Section 21(3) states that a person to whom the secrecy provision applies is not required to produce documents or divulge information in court. This is not a penalty provision but an evidentiary immunity that courts must respect. The definition of “court” in section 21(4) includes any tribunal, authority or person with power to require production of documents or answering of questions.

Validating provision for acting appointments. Section 12(7) provides that Commission acts are not open to challenge in any proceedings on the ground that an acting appointment was not properly occasioned or had ceased to have effect. This protects the validity of Commission decisions from procedural attack based on defective acting arrangements.

Public Service Act 1922-1973. Section 19 provides that Commission staff are employed under the Public Service Act. The section then creates a statutory fiction: the Chairman holds the powers of a Permanent Head over the staff as if that staff were a separate department. This integrates the Commission’s staffing arrangements into the general APS framework while giving the Chairman departmental head-equivalent authority.

Officers’ Rights Declaration Act 1928-1969. Section 20 preserves rights for former APS officers who become Chairman or Deputy Chairman. Their service in the Commission role is counted as if it were APS service. The Officers’ Rights Declaration Act applies as if the Social Welfare Commission Act and section 20 were specified in its Schedule. This ensures continuity of superannuation, leave and other entitlements.

Public Service Act delegation provisions. Section 19(3) deems the Chairman a Permanent Head for purposes of subsections 25(5) and (6) of the Public Service Act 1922-1973, which relate to delegation of powers. The Chairman may delegate to the Deputy Chairman under those provisions (section 19(4)).

Interaction with parliamentary privilege. Section 7(4) and section 17(4) address the situation of parliamentarians serving as part-time Commissioners or committee members. They are not entitled to prescribed fees or allowances but may receive reimbursement of reasonable expenses with Ministerial approval. This avoids potential constitutional or privilege issues around parliamentarians receiving executive remuneration.

Bankruptcy law. Section 11(d) links a Commissioner’s tenure to insolvency events. Bankruptcy, applying for relief as an insolvent debtor, compounding with creditors or assigning remuneration for creditors’ benefit triggers mandatory termination.

The provided source text is the Act as originally enacted, assented to on 27 November 1973 as Act No. 151 of 1973. The text contains no amending provisions or schedules indicating subsequent amendment.

The source text preserves a transitional provision for remuneration: section 7(1) states that until 1 January 1975, the rate of remuneration and annual allowance for the Chairman and Deputy Chairman shall be as prescribed, after which Parliament fixes the rate. This indicates a staged transition from executive prescription to parliamentary determination.

The Act references the Public Service Act 1922-1973 and the Officers’ Rights Declaration Act 1928-1969, both of which have since been repealed and replaced. The current status of the Commission itself , whether it was later abolished, replaced or subsumed , is not evident from the source text provided. Researchers should verify whether this Act remains in force or has been repealed by subsequent legislation, and if repealed, which instrument effected the repeal and what transitional arrangements applied.

The source text contains no references to court decisions or challenges. The Act’s structure contains several provisions that could generate legal dispute, though the text does not record any having occurred.

The secrecy provision in section 21 is potentially contestable. Subsection 21(2) creates an offence for divulging information except for the purposes of the Act. Subsection 21(3) creates an absolute immunity from compelled production or disclosure in any court or tribunal. The interaction between these provisions and other statutory disclosure obligations or court processes is not addressed in the text.

Section 12(7) is a privative clause for acting appointments. It prevents any proceedings questioning the validity of a Commission act on grounds relating to the occasion for or cessation of an acting appointment. The scope of this protection would be tested if a Commission decision were challenged on other procedural grounds not captured by the provision.

The mandatory termination provision in section 11 leaves no discretion to the Governor-General once one of the specified events occurs. The application of section 11(b) (absence from duty) to a Chairman or Deputy Chairman who is prevented from attending by circumstances beyond their control is not qualified by any reasonableness test in the text.

Section 5(3) provides that the Commission’s functions and powers are unaffected by vacancies in membership. This prevents arguments that Commission decisions are invalid because the full complement of eleven Commissioners is not in place.

Expenditure requires Ministerial approval. Section 15(2) is an absolute constraint. The Commission cannot incur any expenditure on behalf of Australia without the Minister’s approval. This applies regardless of the nature or amount of the expenditure. A contract, engagement of a researcher or appointment of a committee that involves expenditure requires prior Ministerial approval to be validly incurred on behalf of Australia.

The casting vote trap. Section 13(8) gives the presiding Commissioner both a deliberative and a casting vote. At a meeting with a bare quorum of six, a tied vote of 3-3 becomes a resolution carried by the Chair’s casting vote. This can create decisions that lack majority support among Commissioners present. Practitioners advising Commissioners should note that the Chair’s two votes can be determinative.

Full-time Commissioners cannot hold outside paid employment. Section 11(a) creates a strict prohibition. The Chairman or Deputy Chairman who engages in any paid employment outside the duties of office without the Minister’s approval faces mandatory termination. The provision does not require that the employment conflict with Commission duties; the mere fact of unapproved paid employment triggers termination.

Age bar for Chairman and Deputy Chairman. Section 6(2) operates as an absolute prohibition. A person aged 65 or over cannot be appointed or re-appointed as Chairman or Deputy Chairman. An appointment for a period extending beyond the appointee’s 65th birthday is impermissible. This applies only to the two full-time offices, not to part-time Commissioners.

Parliamentarians’ unique remuneration treatment. Sections 7(4) and 17(4) exclude parliamentarians from prescribed fees and allowances. Instead, they may receive only expense reimbursement with Ministerial approval. An administrator processing payments to a parliamentarian serving as a part-time Commissioner or committee member who inadvertently pays prescribed fees would be acting without authority.

Secrecy provision applies beyond employment. Section 21(1) applies to every person who “is or has been” a Commissioner, committee member or staff member. The prohibition continues after the person leaves the role. The penalty provision (section 21(2)) and the evidentiary immunity (section 21(3)) both extend to former officeholders and employees.

Secrecy immunity operates as a shield for documents in court. Section 21(3) prevents any court, tribunal, authority or person from compelling production of documents or divulging of information held by a current or former Commissioner, committee member or staff member. This is an absolute statutory immunity, not a qualified privilege or a claim that can be waived by the Commission or Minister. Legal practitioners conducting litigation that involves social welfare program information should assess whether relevant material is held by a person caught by section 21.

Vacancies do not invalidate acts. Section 5(3) means that a decision made by a Commission with several unfilled positions is not invalid for that reason. However, the quorum requirement in section 13(4) still applies. If vacancies reduce membership below six, no quorum can be formed and the Commission cannot act even though the vacancy provision would validate acts if a quorum existed.

The 12-month limit on acting appointments to fill vacancies. Section 12(2) provides that an acting Chairman or acting Deputy Chairman appointed to fill a vacancy cannot continue in office after 12 months from the vacancy occurring. If a permanent appointment is not made within that period, the acting appointment lapses. The Act does not provide for extension of this period.

For the Governor-General and Executive Council. Appointments of Commissioners must specify the period, observing the statutory maxima of seven years for Chairman, five years for Deputy Chairman and three years for part-time Commissioners. Before appointing or re-appointing a Chairman or Deputy Chairman, verify the appointee has not attained 65 and that the term will not extend past the 65th birthday. Terminations under section 11 are mandatory on proof of the triggering event; establish a process for being notified of absences, bankruptcy events and outside employment.

For the Minister. Establish a system for receiving and actioning Commission reports, including the mandatory tabling obligation under section 16(2). Approvals for Commission expenditure under section 15(2) should be documented and specific to avoid risk of unauthorised expenditure being incurred on behalf of Australia. Approvals for outside paid employment by the Chairman or Deputy Chairman under section 11(a) should be express and recorded. Leave approvals for the Chairman and Deputy Chairman under section 8 should specify terms and conditions regarding remuneration.

For the Commission. Maintain a meeting schedule sufficient to perform functions under section 14. Ensure the Chairman or Deputy Chairman convenes a meeting when three Commissioners sign a written request under section 13(3). Record quorum and voting outcomes at each meeting, noting that six Commissioners including the presiding officer are required and that the presiding officer’s casting vote may be used on tied questions. Before conducting an inquiry under section 15(1)(a) or engaging researchers under section 15(1)(b), obtain the Minister’s approval for any associated expenditure. When appointing committees under section 17, determine whether members include parliamentarians and apply the correct remuneration or reimbursement provisions accordingly.

For staff and Commissioners handling information. Implement procedures to ensure information about the affairs of persons acquired under the Act is not recorded, divulged or communicated except for the purposes of the Act (section 21(2)). Identify which purposes fall within “for the purposes of this Act”. The statutory immunity under section 21(3) means that if a subpoena or notice to produce is received, the recipient should seek legal advice on asserting the statutory immunity, noting the broad definition of “court” in section 21(4) that captures any tribunal, authority or person with compulsory powers.

For persons interacting with the Commission. A witness appearing at a Commission inquiry is entitled to prescribed allowances for expenses under section 18. Persons or institutions engaged to carry out research or make submissions should ensure arrangements are documented and expenditure approvals are in place before commencing work.

For parliamentary officers receiving Commission reports. Section 16(2) requires the Minister to cause reports to be laid before each House “as soon as practicable”. Delays in tabling should be justified by reference to that standard.