The Constitution Act 1902 (sections 36 and 37) makes provision for the continued performance of Ministerial functions when a Minister is absent or otherwise unavailable to perform his or her functions.

Section 36 – specific authorisation

If a Minister knows in advance that he or she will be absent or may otherwise be unable to perform all of his or her Ministerial functions for a certain period, the Governor can grant a specific authorisation to another Minister (the acting Minister) to act for and on behalf of the first Minister (the principal Minister) under section 36 of the Constitution Act 1902.

Authorisations under section 36 are made by the Governor on the recommendation of the Executive Council, and they must be published in the Government Gazette.

The authorisation must specify a start and an end date.

A recommendation to the Governor for a Minister to be authorised under section 36 to act for and on behalf of another Minister should ordinarily be made if any of the following circumstances apply:

1. the principal Minister will be interstate (whether for official or private reasons) for a period of two weeks or more;
2. the principal Minister will be overseas (whether for official or private reasons), except if the trip will be for a very short period of only a day or two; or
3. approval has been given by the Premier for the principal Minister to take a leave of absence from duty for private reasons, for a period of two weeks or more.

Section 37 – standing authorisation

If a Ministerial function needs to be performed but the relevant Minister is temporarily unavailable (and no acting Minister has been authorised under section 36 of the Constitution Act 1902), then section 37 of the Constitution Act 1902 provides a standing authorisation for any Minister to exercise or perform for and on behalf of that other Minister, any function appertaining or annexed to the office of that other Minister.

Section 37 would ordinarily be expected to be relied upon in the following circumstances:

1. the Minister is ill or otherwise unavailable unexpectedly, and an important Ministerial function must be performed without delay;
2. a section 36 arrangement has been put in place, but the Minister's absence has been extended for a short period beyond the end date of the acting arrangements (for example, if an overseas trip is extended by a day or two, the standing authority under section 37 may be relied upon during those additional days if it would be impracticable to seek to have the Governor authorise a new section 36 arrangement);
3. the Minister will be out of the State for a period of less than two weeks;
4. approval has been given by the Premier for the Minister to take a leave of absence from duty for private reasons, for a period of less than two weeks.

A Minister may only perform a function for and on behalf of another Minister under section 37 if he or she is satisfied that the other Minister (and, if relevant, any acting Minister) is in fact "unavailable" to perform the function him or herself. Even if satisfied that the Minister is unavailable, if the performance of the function can wait until the Minister is available, it may be prudent to consider deferring the matter until the Minister returns.

Ministerial signature block when 'acting'

Ministers who are authorised to act for another Minister (whether under section 36 or section 37) must ensure that they clearly differentiate between when they are acting in their own capacity and when they are acting for and on behalf of the principal Minister.

Accordingly, a Minister who is acting for and on behalf of another Minister should use the following signature block:

The Hon. [*] MP/MLC
acting for and on behalf of
the Minister for [x]

A Minister who has been authorised to act for another Minister may, in an informal sense, be described as the "Acting Minister". However, their authorisation is to act as an agent for and on behalf of the principal Minister, who remains in office. Accordingly, when Ministers sign documents they should use the above sign-off block, not "Acting Minister".  

Barry O'Farrell MP
Premier

This Memorandum has not superseded any other Memoranda