Attorney-General (Additional Functions) Bill

Mdm Speaker, I welcome this proposed law to confer additional functions on the AG.

There are at least 66 Statutory Boards in Singapore covering a gamut of areas in every aspect of life ranging from public libraries, civil aviation, institutions of higher learning,

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religious matters, casino and gaming operations, national examinations, sports and more.

We are very much an administrative state. And in tandem with a citizenry that is more assertive of their rights and interests, judicial review of administrative action is probably a growth industry. Judicial review enables citizens to challenge and put a stop to unlawful Government action.

While more litigation is not necessarily better, the fact that there are more judicial review applications and proceedings in the past decade point to faith and confidence in our judiciary. They also signal that the legal system is robust and the commitment to the rule of law remains functional. The rule of law requires that public authorities, in exercising their public functions and statutory powers, do not cross the line of legality.

As a teacher of constitutional and administrative law, I must admit that I have been somewhat puzzled that Statutory Boards or private bodies exercising statutory functions could not avail themselves of the AG's advice and representation in judicial review actions brought against them.

The reality is that counsel from our Bar acting for the Statutory Boards operate under a quite different set of incentives and performance indicators from the AGC. While they may not have a "win at all costs" mindset, lawyers from the Bar may lack an appreciation for and a nuanced understanding of the public interest and what it entails. This is not surprising since they are not schooled in the public service and may not appreciate how the judicial review cases they are handling can have a reach far beyond their Statutory Board principal.

Second, with each Statutory Board defending itself and not being mindful of the larger picture, there is always the danger that there is lacking a whole-of-Government approach and perspective to judicial review proceedings.

Broadly speaking, administrative law principles do not just specifically apply to a Ministry or a Statutory Board; they may also apply to all bodies exercising statutory functions. So, a concession on an administrative law principle might not be onerous to one particular Statutory Board, but may be an entirely different proposition altogether for another. So, we may have a perverse situation in which one Statutory Board may unwittingly undermine the development of a coherent and robust administrative law jurisprudence.

Third, as Singapore develops its own administrative law jurisprudence, it must be developed in a coherent manner and one that is in sync with our system of governance and constitutional order. In serving the public, regulatory frameworks and regimes should adhere

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to certain core public law principles.

Madam, for a start, this proposed legislation, when brought into force, will empower the AG to represent MAS and SLA in a judicial review.

My sense is that such representation work by the AG is important and necessary in complex areas of law, such as MAS' functions with regard to prohibited market conduct under Part XII of the Securities and Futures Act. And in land-scarce Singapore, administrative law principles must be cognisant of the need to optimise land resources for the economic and social development of Singapore.

Nonetheless, could the Senior Minister of State elaborate on why MAS and SLA are chosen and the criteria used?

I also seek the Senior Minister of State's clarifications on a few other matters under the Bill.

One, clause 5 provides that the AG may require a scheduled Statutory Board to pay a reasonable fee for legal services and representation rendered by his Chambers. How will the fees be determined and will the fees be charged as a matter of practice?

Two, with respect to the Schedule, are the long-term plans for the AG to represent all Statutory Boards in judicial review proceedings? Also, is the AG already having oversight of all judicial review cases brought against Statutory Boards?

Three, the Bill appears to provide only for the AG to represent a body corporate or unincorporate established by or under a public Act to perform or discharge a public function.

Our jurisprudence has established that judicial review also extends to a body or tribunal that is "private" in nature but which operates as an integral part of a system with a public law character and which is supported by public law in that public law sanctions are applied if its directives or decisions are ignored, and performs what might be described as public law functions. As such, can the AG represent a body corporate or unincorporate that is not a Statutory Board?

Finally, this Bill has the potential to add to the demands on AGC. It is desirable that as much of the public sector receives quality legal advice and representation, especially pertaining to administrative law. AGC will, therefore, have to beef up its manpower to

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manage the likely increase workload.

More importantly, AGC will also need to enhance its training outreach to the Public Service so that public officers have a competent understanding of what judicial review is about and how their actions and decision-making processes have to be in compliance with the law.

Madam, judicial review is not about the Courts judging the merits of the administrative act or decision of the Executive branch of the Government. Rather, it is concerned about how an administrative act or decision was arrived at in the exercise of discretionary powers conferred by the law. In this sense, judicial review can be a platform by which public authorities, especially if they lose a judicial review case, can learn to exercise discretionary power and the process of decision-making that do not run afoul of the law and the principles of natural justice. As such, I hope that the Government will consider strengthening the education outreach efforts of the AGC. Mdm Speaker, I support the Bill.

Mdm Speaker, I rise in support of the Attorney-General (Additional Functions) Bill.

Presently, where Statutory Boards in Singapore are involved in judicial review and related Court proceedings, they engage private law firms to act on their behalf.

This Bill, if enacted, will empower the AG to represent the relevant Statutory Boards in judicial review cases, related Court proceedings and even, where it is a matter of public importance, in other Court proceedings as well. I rise in support of this Bill because the Bill sets out clearly a framework and the requirements for the AG to represent the relevant Statutory Boards in judicial review and related Court proceedings. However, of equal importance is that the Bill does not inadvertently incentivise the initiation of frivolous judicial review applications.

The proposed Bill adopts a four-fold requirement before the AG is empowered to represent the relevant Statutory Board in Court proceedings.

First, the Statutory Board must make a request to the AG for such representation; secondly, the Minister charged with the responsibility for the relevant Statutory Board must consent to such representation; next, the AG must be of the opinion that the Government and the requesting Statutory Board do not have conflicting interests in the matter; and lastly,

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the AG must be of the opinion that such representation is not contrary to public interest.

These four prerequisites for the representation of the Statutory Boards by the AG ensure that the core role and purpose of the AG to act as Public Prosecutor and State Counsel for the Government, as set out in our Constitution, are not compromised.

At the same time, it ensures that there is a clear framework for the Statutory Board to first obtain approval from the relevant Minister to engage the assistance of the AG, and also makes it necessary for the AGC to do its due diligence to ensure that its involvement in the judicial review (JR) and relevant Court proceedings is not in conflict with the Government's interest and is not contrary to public interest.

Taken together, the Bill provides an avenue for greater synergy between the AGC and the relevant Statutory Boards and could create overall cost savings.

It is important that, from a resource angle, this arrangement of having the AG represent Statutory Boards in judicial review and relevant Court proceedings must be sustainable in the long term.

While I support the overall aim of this Bill, I would appreciate if the Minister could clarify a few aspects of the mechanics of the Bill.

First, from a manpower point of view, would the legal service officer assigned to assist the relevant Statutory Boards in these judicial review and relevant Court proceedings be solely focused on such judicial proceedings, or would it be one of several responsibilities within the officer's portfolio? It is important that we ensure that our legal service officers are deployed effectively while at the same time ensuring that they are not overly burdened by multiple roles and responsibilities.

Further, could the Minister explain the rationale for the inclusion of just two Statutory Boards in the Schedule to the Bill, which specifies the relevant Statutory Boards that may be represented by the AG – namely, MAS and SLA? Those were the only two currently in the Schedule. Although the Bill does empower the President to amend the Schedule by order published in the Government Gazette, it is unclear as to why just these two Statutory Boards have been identified at the enactment of this Bill.

On the whole, Mdm Speaker, I support the overall objective of this Bill and believe that it would be beneficial to provide a means for the relevant Statutory Boards to have the AG or his deputies represent them in judicial review and related Court proceedings.

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The framework that has been created with this proposed Bill ensures that Statutory Boards continue to have the flexibility to request the AG and/or his or her officers to represent them in judicial review and relevant Court proceedings while maintaining the present option to engage a private law firm should there be a conflict of interest.

In a legal system that is premised on the rule of law, judicial review actions in respect of administrative decisions or instruments of legislative character of the relevant Statutory Boards are inevitable. With the enactment of this Bill, the relevant Statutory Boards will now be better positioned to respond to judicial review applications, through its representation by the AG. Ultimately, the Court will decide on the merits or demerits of any application. I support the Bill.

Mdm Speaker, I wish to thank the hon Members, Assoc Prof Eugene Tan and Mr Christopher de Souza for speaking in support of the Bill.

Assoc Prof Tan had asked whether the AG is already having oversight of all judicial review cases against Statutory Boards. The AG currently provides his views and comments to the Statutory Boards' parent Ministries in cases which involve public law issues that could have implications across the public sector or on the development of the law.

Both Members had asked for the rationale of including just two specific Statutory Boards, namely, MAS and SLA, in the Schedule to the Bill as relevant Statutory Boards that may be represented by the AG.

The inclusion of Statutory Boards into the Schedule of the Bill will be a gradual process so that the AG can put in place the necessary protocols to meet the projected workload.

MAS has been included in the first phase because the financial sector is an important segment of the Singapore economy, as Assoc Prof Tan identified just now, and financial sector regulation is becoming increasingly complex.

SLA is the custodian of state land and properties and has the responsibility of ensuring that Singapore's scarce land resources are allocated optimally. Cases involving state land could have important ramifications for the state, Government, businesses and individuals.

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Assoc Prof Tan had also asked about the criteria by which Statutory Boards will be placed in the Schedule and whether there are plans to include every Statutory Board in the Schedule of the Bill. The main criterion is the public functions that the Statutory Board performs in accordance with its enacting public Act. It is envisaged that the Bill will eventually cover Statutory Boards which perform core or sensitive functions.

Members may wish to know the factors that might inform the AG's decision on whether to represent a Statutory Board in Court proceedings. Without fettering the AG's discretion in any way, let me explain some of the factors he could take into account.

One of the relevant factors would be the nature of the allegation that is being made against the Statutory Board or, put another way, the nature of the right that the applicant is seeking to assert. For example, the AG may be more inclined to represent the Statutory Board if the applicant is challenging the scope of the Statutory Board's powers.

Another relevant factor would be the potential impact of the Court's decision in that particular application. Thus, if the applicant makes allegations against the Statutory Board which call into question the system of public administration and governance across the public sector as a whole, the AG could regard this to be a case where he should represent the Statutory Board, in the interests of the entire public sector.

As for potential cases under clause 4 of the Bill, that is, matters of public importance, these would include cases where there are important and novel legal issues that will have an impact on the public sector or Singapore as a whole.

Assoc Prof Tan also asked if this Bill would empower the AG to represent non-Statutory Boards. Although the Singapore Courts have held that under certain conditions, the decisions of non-Statutory Bodies or tribunals could be amenable to judicial review, the Bill allows the AG to represent only Statutory Boards which perform or discharge public functions.

Assoc Prof Tan and Mr de Souza had queries relating to the issue of the AG's resources. The phased approach in the implementation of this Bill will allow the AG to gradually build up the necessary resources for carrying out his additional functions. This would avoid over or under-utilising legal service officers who will be involved in representing Statutory Boards.

As for Mr de Souza's question as to whether a legal service officer assigned to assist the relevant Statutory Board in the judicial review or Court proceeding would be solely focused on these matters, or whether this engagement would be one of several responsibilities within the officer's portfolio, how the AG will deploy legal service officers within his Chambers is an operational matter balancing considerations, such as caseload, the need to

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build expertise and the need to ensure diversity of work for legal service officers. So, in short, we will leave that to the AG to determine.

Assoc Prof Tan had also asked how AGC's fees will be determined. The exact charging model will be determined at a later date. Generally, Government agencies operate on the basis of cost recovery. As such, the AGC's fees are likely to be lower than the rates charged by external counsel. But the rationale for imposing fees is to ensure that there is discipline in the use of resources. All fees collected will be paid into the Consolidated Fund.

*Question put, and agreed to.*

*Bill accordingly read a Second time and committed to a Committee of the whole House.*

*The House immediately resolved itself into a Committee on the Bill. – [Ms Indranee Rajah].*

*Bill considered in Committee; reported without amendment; read a Third time and passed.*

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