Ministerial Advisers and the Australian Constitution

• Author: Yee-Fui Ng
• Pages: 1-29

[2017]Ministerial Advisers and the Australian Constitution1

MINISTERIAL ADVISERS AND THE AUSTRALIAN

CONSTITUTION

YEE-FUI NG*

Ministerial advisers are relatively new institutional actors within the Commonwealth

Executive. Ministerial advisers were not envisaged at federation and pose a challenge

to constitutional theory, which largely focuses on the position of public servants and

Ministers. This article analyses the position of ministerial advisers within the

constitutional framework of the Australian Executive. It also considers the

constitutional basis for the employment of ministerial advisers at the Commonwealth

level, including the appropriation of their salaries and the power to contract for their

employment. In doing so, it illustrates the practical operation of the tests in the cases

of Williams v Commonwealth and Pape v Commissioner of Taxation. The author

argues that ministerial advisers have become integrated within the constitutional

framework of the Executive such that their activities fall within the ordinary and well-

recognised functions of government as they play an integral role in assisting in the

administration of a government department.

Key Words:ministerial advisers, ministerial staff, constitutionality, appropriations,

executive power

I Introduction........................................................................................................... 2

IIPosition Of Ministerial Advisers Within The Constitutional Framework............4

A Transfer of State Public Service Departments to the Commonwealth.............5

1 Section 69...................................................................................................... 5

2 Section 52(ii)................................................................................................. 6

B Section 67.......................................................................................................... 7

C Executive Power (Section 61)........................................................................... 9

1 Prerogative Power.......................................................................................10

2 Capacities of Commonwealth.....................................................................11

IIIIs the Members of Parliament (Staff) Act 1984 (Cth) Constitutionally Valid?..17

A Case Law on Executive Power and Incidental Power under Section 51(xxxix).

.........................................................................................................................18

B Is the MOPS Act Supported by Sections 61 and 51(xxxix)?..........................20

C Are there any Limitations on the Scope of Executive Power and Incidental

Power under section 51(xxxix) that apply to the MOPS Act?................................21

1 Federalism...................................................................................................21

2 Coercive v Facultative Laws.......................................................................22

IVAppropriation of and Expenditure on Salaries of Ministerial Advisers.............23

V Conclusion..........................................................................................................27

2University ofWestern Australia Law Review[Vol 42:1]

IINTRODUCTION

[Ministerial advisers] operate in an area which strict constitutional theory does not

recognize as existing.1

Ministerial advisers, personally appointed by Ministers and working out of

their private offices, have become an integral part of the political landscape in the

last 30 years. Ministerial advisers at the Commonwealth level are subject to

legislation concerning their employment 2as well as a Code of Conduct. 3

Traditionally ministerial advisers are seen to be mere emanations of their Minister

and therefore accountable to their Minister personally, whilethe Ministers are

accountable to Parliament.4Although ministerial advisers are personally employed

by Ministers in their private offices, they perform public functions, including

advising on public policy, media, political, parliamentary management and party

management matters.5 A Commonwealth Senate Select Committee found that ‘it

can no longer be assumed that advisers act at the express direction of ministers

and/or with their knowledge and consent. Increasingly, advisers are wielding

executive power intheir own right’.6

In 2012, Jennifer Westacott, the Chair of the Business Council of Australia

launched a scathing attack on ministerial advisers, claiming that public servants

were ‘undermined by political gatekeepers, often with little expertise and no

accountability’.7In 2013, Terry Moran, former Secretary of the Department of the

Prime Minister and Cabinet, stated that ministerial advisers ‘are becoming a black

hole of accountability within our parliamentary democracy’.8This is a

contemporary issue that is deserving of further analysis.

Ministerial advisers operate within the public sphere but have thus far largely

been subject to private law accountability frameworks, that is dismissal through a

1J R Mallory, ‘The Minister’s Office Staff: An Unreformed Part of the Public Service’ (1967) 10(1)

Canadian Public Administration25.

2Members of Parliament (Staff) Act 1984(Cth).

3Code of Conduct for Ministerial Staff < http://www.smos.gov.au/media/code_of_conduct.html>.

4H Collins, ‘What shall we do with the Westminster Model?’ in R Smith and P Weller (eds), Public

Service Inquiries in Australia (1978) 366. Senate Debates, 7 February 1995, 611.

5The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967

[22].

6Senate Select Committee, A Certain Maritime Incident(2002) Commonwealth of Australia xxxvii.

7Jennifer Westacott, ‘A Servant to Short-Termism’, The Australian(Sydney), 21 September 2012

<http://www.bca.com.au/Content/102032.aspx>.

8Ross Peake, ‘Call for Ministerial Advisers to be Personally Responsible, The Canberra Times

(Canberra), 16April 2013 <http://www.canberratimes.com.au/national/public-service/call-for-

ministerial-advisers-to-be-personally-responsible-20130416-2hx41.html>.