Legal Briefing
Number 61
14 November 2001
AFTER A GENERAL ELECTION – SOME
LEGAL ISSUES
Introduction
This Briefing discusses a number
of legal issues which arise after a federal general election.
It supersedes
the previous Briefing on these issues published
on 23 September
1998 (Legal Briefing Number 43), to take account of changes
that have occurred since then, including in relation
to parliamentary secretaries and the enactment
of the Public
Service Act 1999. Because of their governmental nature,
these issues often involve administration and practice,
as well as law.
This Briefing is only an introduction
and is structured on the basis of a legal analysis, not
the order in which
events occur. Contacts for further information and advice
are set out at the end.
Ministers
Sections 64 and 65 of the Constitution
provide:
Ministers of State
64. The Governor-General
may appoint officers to administer such departments of
State of the Commonwealth as the
Governor-General in Council may establish.
Such officers
shall hold office during the pleasure of the Governor-General.
They shall be members of the Federal
Executive Council, and shall be the Queen’s
Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first
general election no Minister of State shall hold office
for a longer period than three months unless
he is or becomes a senator or a member
of the House of Representatives.
Number of Ministers
65. Until the Parliament
otherwise provides, the Ministers of State shall not exceed
seven in number, and shall
hold such offices as the Parliament prescribes,
or, in the absence of provision, as the Governor-General directs.
After a general
election, the Governor-General appoints as Prime Minister
the person who can form a ministry that has the confidence
of the House of Representatives.
Other ministers are appointed by the Governor-General on the advice of the
Prime Minister.
The resignation of the existing Prime Minister
following a general election for the House of Representatives
terminates the
commissions of all other ministers
in that ministry. Even where the same party or parties are returned to power,
the resignation of the old ministry, followed by the appointment of a new ministry,
is now accepted as the appropriate course to follow.
Ministers must be members
of the Federal Executive Council
Section 64 of the Constitution
requires ministers to be members of the Federal Executive
Council. Proposed ministers
who are not already members are ordinarily
appointed by the Governor-General under section 62 as Executive Councillors
before being appointed as ministers. This enables them immediately to participate
in
meetings of the Executive Council relating to departmental changes proposed
following a general election.
Number of ministers
Under the Ministers of
State Act 1952 the number of ministers is not to exceed
42 (section 4). Up to 12 may be designated
as parliamentary secretary. Up to
30 may be designated as other than parliamentary secretary. At present, that
is the maximum possible number of ministers. But fewer ministers could be appointed.
Ministers administer a department
A minister
is appointed to administer a department. This requirement,
when joined with the disqualification provisions
in section 44 of the Constitution
relating
to the holding of offices of profit under the Crown, has in effect ruled out
the practice followed in other jurisdictions of appointing Ministers of State
without portfolio. A minister may be appointed to administer more than one
department.
Multiple ministers for a department
There
is no constitutional objection to the appointment of more
than one minister to administer a department
of State, where each minister is appointed to administer
the department. In practice, this allows for a ‘senior’ minister
and a ‘junior’ minister or ministers to distribute amongst themselves
the administrative workload within a particular portfolio. Thus, where portfolio
legislation confers a particular power on ‘the Minister’, each
of the administering ministers is able to exercise that power (see section
19A of
the Acts Interpretation Act 1901). The validity of this practice adopted by
successive governments since 1987 was recently upheld by the High Court of
Australia in
Re Patterson; Ex parte Taylor (2001) 182 ALR 657.
On some occasions the practice
of having a minister authorised to assist another minister in the latter’s
performance of statutory powers and functions has continued. In so assisting,
the minister authorised acts for or on behalf
of the latter minister. In relation to statutory powers and functions, this
is made possible by sections 18C and 19 of the Acts Interpretation Act.
More
detailed information about sections 18C and 19 of the Acts Interpretation
Act is contained in Legal Briefing No. 44 ‘Ministerial Authorisations:
Foster and Beyond’ which can be accessed through AGS on the Web http://www.ags.gov.au/publications/agspubs/legalpubs/legalbriefings/br44.htm.
Parliamentary
Secretaries
Parliamentary secretaries are ministers.
Prior to 2000, parliamentary secretaries were appointed
to statutory offices under the Parliamentary
Secretaries
Act 1980. They were not ministers and were not remunerated because
of the office
of profit
disqualification provisions in section 44 of the Constitution. However,
they received reimbursement for reasonable expenses.
However, the responsibilities
of parliamentary secretaries have increased over time.
In early 2000 the Parliamentary Secretaries Act was repealed
by the Ministers
of State and Other Legislation Amendment Act 2000. This Act amended
the Ministers of State Act to increase the number of ministers to a
maximum
of 42. Twelve
of these may have the title ‘Parliamentary Secretary’.
These changes to the Ministers of State Act,
including providing for the designation of some ministerial
offices as ‘Parliamentary
Secretary’, were
also upheld by the High Court in Re Patterson. Accordingly, like
other ministers, parliamentary secretaries are appointed under section
64
of the Constitution
to administer departments and are remunerated.
Commission
The form of commission now in use
provides that the minister concerned is directed and appointed
to hold the office
of (naming the ministerial
designation,
including
the designation ‘Parliamentary Secretary’ as appropriate – see
above) and to administer the department of (naming the appropriate
department). This, at the one stroke, provides the designation of
the minister and identifies
the department he or she is to administer.
Administrative Arrangements
Order
In addition to the Governor-General directing
and appointing a minister to administer a department, the
Governor-General
makes
a new Administrative
Arrangements Order.
The Order provides a detailed description
of each department’s and minister’s
responsibilities. This Order sets out for each department:
- the matters to be dealt with by the department
(and provides that the department also deals with matters
arising under
legislation
administered by the department’s
minister); and
- legislation to be administered by the
minister for that department (and provides that the minister
administers legislation, passed
before or after, that relates
to a matter dealt with by the minister’s department).
Where
there is more than one minister administering a department,
the Order operates so that each minister administers all
the
legislation relevant
to that department.
Arrangements for the allocation of responsibilities between
the ministers are made at the political level.
Departments
The departments are such as the
Governor-General in Council establishes from time to time
under section 64 of the Constitution.
This
authority to establish
departments carries with it the power to abolish existing departments,
and to alter existing departments by changing their names.
The power to establish
departments,
abolish existing departments and to alter existing departments
by changing their names is often exercised immediately after
a general
election.
For example, after
the 1998 general election the name of the Department of Health
and Family Services was changed to the Department of Health
and Aged
Care.
The Public Service Act makes provision for
the movement of APS employees associated with machinery
of government
changes
which
usually occur
following an election
(see section 72). In particular, the Public Service Commissioner
is able to move APS employees from one agency to another without
anyone’s consent if the Commissioner is satisfied
that it is necessary or desirable in order to give effect to
an administrative re-arrangement.
‘Agencies’ are usually staffed by persons
employed under the Public Service Act. A department established
by the Governor General (see above), excluding
any part that is itself an Executive Agency or Statutory
Agency, is an agency.
Executive Agencies (established under section 65 of the Public
Service Act) and Statutory Agencies (established under other legislation) are
also ‘agencies’.
Where an APS employee is moved to another
APS agency under section 72, the Public Service Regulations
provide for no
reduction in
annual salary,
and
allow for
the making of a determination preserving some or all of
the employee’s
existing conditions of employment, until a new award, certified
agreement or Australian workplace agreement begins to apply
to the employee.
Also, there is scope for APS employees
to be transferred from an agency to a specified Commonwealth
authority, which
includes
a
company in
which the
Commonwealth holds a controlling interest, or vice versa.
Upon transfer to a Commonwealth
authority an APS employee’s conditions of employment,
for example, under an award or certified agreement, are
not to be less favourable than what he
or she had immediately before the transfer. However, the
conditions may later be
varied when there is a relevant variation to an award or
certified agreement that applies to the employee.
For the
purposes of the machinery of government changes, the term ‘administrative
re arrangement’ is defined in section 72(6) to mean
any increase, reduction or reorganisation in Commonwealth
functions, including one that results from
an order made by the Governor-General. This would include
the Administrative Arrangements Order referred to above.
Appointment
of Secretaries
When a new department is established, the
office of Secretary of that department is also established
(section 56(1) of
the Public
Service
Act). When a department
is abolished, the office of Secretary is also abolished
(section 56(2)). The Prime Minister may appoint a person
to be the
Secretary of a department
for
a period up to five years (section 58(1)) and may, having
received a relevant report
about a proposed termination, also terminate the appointment
of a Secretary at any time (section 59(1)).
19B and 19BA
orders
A general reference to ‘the Minister’ in
legislation means the ministers administering the legislation
under the Administrative Arrangements
Order (section
19A of the Acts Interpretation Act). A reference to a specific
minister in legislation generally means all the ministers
administering the legislation.
Where Acts,
and instruments made under Acts, refer to specific ministers,
departments and Secretaries of departments, these specific
references may need to be altered
to reflect the changes in ministers, departments and Secretaries
which, as discussed above, commonly result from a new Administrative
Arrangements Order.
It is not, however, necessary to amend
each and every reference to a specific minister, department
or Secretary contained
in an Act
or instrument.
Rather,
sections 19B and 19BA of the Acts Interpretation Act confer
on the Governor-General powers to make orders which appropriately
alter
all specific references
contained in Acts and instruments.
Section 19B orders
Subsection 19B(1) of the
Acts Interpretation Act provides that the Governor-General
can make an order altering a
reference in a provision
of an Act to a
particular minister if there is no longer any such minister.
Subsection 19B(2) provides that the Governor-General
can make an order altering a reference in a provision of
an
Act to a
particular department
if that department
has been abolished or the name of the department has been
changed. Similarly, subsection 19B(3) provides that the
Governor-General can make an order
altering a reference in a provision of an Act to a particular
Secretary
of a department
if that office of Secretary has been abolished or the name
of that office has been changed.
The changes in ministers, departments and Secretaries which
are made following an election generally necessitate the
making of
orders
under section 19B.
Section 19BA
Section 19BA of the Acts Interpretation
Act provides an additional power for the Governor-General
to alter references
in Acts
to specific ministers,
departments
and Secretaries. In particular, in some cases the name
of a minister, department and Secretary will stay the same
but
a
specific reference
in a provision
of an Act will nevertheless need to be changed because
the administration of that
provision
has been changed by the Administrative Arrangements Order
made by the Governor-General.
The changes in the administrative
arrangements which are made following an election sometimes,
but not often, necessitate
the making of
orders under
section 19BA.
Instruments under Acts
The powers conferred
on the Governor-General by sections 19B and 19BA of the
Acts Interpretation Act may, by virtue
of paragraph
46(1)(a) of that
Act, also
be exercised to change specific references to ministers,
departments and Secretaries which are contained in instruments
made under
Acts.
The Attorney-General’s Department will,
following the making of an Administrative Arrangements
Order, contact
all departments to determine the references to
specific ministers, departments and Secretaries which will
need to be changed by orders
made under sections 19B and 19BA.
Delegations and authorisations
The changes
in ministers, departments and Secretaries which occur following
an election make it essential that each
department review its instruments
of delegation
and authorisation following a general election.
There are
three kinds of instrument which departments will need to
review following an election:
- An instrument
of delegation made under an express statutory power of
delegation (‘instruments of delegation’).
A person to whom a power is delegated in accordance with
an instrument of delegation exercises the delegated power
in their own right.
- An instrument
made in accordance with an express statutory provision
which enables a person to be designated as the
recipient of a statutory function or power (‘statutory
authorisations’). For example, legislation sometimes
expressly confers functions and powers on an ‘authorised
officer’ and provides for
the making of an instrument which designates an identified
person or persons as an ‘authorised officer’.
As is the case with a person acting pursuant to an instrument
of delegation, a person acting pursuant to a statutory
authorisation
performs the relevant function or exercises the relevant
power in their own right.
- An instrument
made by a person (‘the first person’) in whom
a statutory power is vested authorising another person
to exercise that power for and on
behalf of the first person (Carltona authorisations). In
contrast to a person acting pursuant to an instrument of
delegation or a statutory authorisation,
a person acting pursuant to a Carltona authorisation does
not act in their own right but, rather, as the ‘alter
ego’ or agent of the first person.
The power to make an authorisation of this kind is, in
most cases, implied from the terms of the statute which
confers the relevant power on the first person.
Occasionally, however, the first person’s power to
authorise another to act for and on the first person’s
behalf is conferred expressly by legislation.
Instruments
of delegation
An instrument of delegation made by a minister
or a Secretary will continue to have effect following a
general election
if the only
substantive administrative
change is the person who holds the office of minister or
Secretary to the department. Similarly, a delegation continues
in effect
where there
has
simply been a change
in the designation of a minister, Secretary or department.
However, in both cases,
it is clearly good administrative practice to provide new
office-holders with the opportunity to reconsider arrangements
for delegated
decision-making, and
issue new instruments of delegation.
In the case of a transfer
of functions from one department (the originating department)
to another (the receiving
department), delegations of
power to persons within
the originating department who are responsible for performing
those functions will cease to have effect at the time the
functions, together with relevant
staff, are transferred. New delegations will need to be
made in
favour of persons performing
the relevant functions.
Similar considerations apply in
the case of departments which are abolished. Delegations
of power to persons within
that
department will cease to
have effect at the time of the department’s abolition.
New instruments of delegation should be made without delay
in favour of persons performing the relevant functions
in any department which takes over the functions of the
abolished department.
Statutory authorisations
What is said in
relation to delegations applies equally to statutory authorisations.
Carltona
authorisations
The position is different in relation to
instruments of authorisation which provide for specified
persons to exercise
relevant
powers for and on behalf
of an office-holder.
All authorisations of that kind cease to have effect when
the person holding the relevant office changes. Accordingly,
all
such instruments
of authorisation
should be re-made without delay where the person holding
the relevant office has changed as a result of the election
and
the changes
in the administrative
arrangements. For example, an authorisation by an Agency
Head for another person to enter into Australian workplace
agreements
under
section
170WK of the Workplace
Relations Act 1996 on his or her behalf would need to be
reviewed. More detailed information about delegations and
authorisations
is contained in Legal Practice
Briefing Number 24 ‘Devolution of Power within Government’ which
can be accessed through AGS on the Web http://www.ags.gov.au/publications/agspubs/legalpubs/legalbriefings/br24.htm.
Availability
of appropriations
Orders under the Acts Interpretation Act
There
are two ways in which appropriations can continue to be
available after a change in departments. Where an
applicable
order under
sections 19B or
19BA of the Acts Interpretation Act has been made, a reference
in an Appropriation Act to the former department is to
be read as a
reference
to the new department
translated in accordance with the order. This follows from
the
terms of sections 19B and 19BA themselves.
Financial Management
and Accountability Act
Section 32 of the Financial Management
and Accountability Act 1997 applies if a function of a
department (the old
department) becomes
a function
of another department (the new department) either because
the
old department was abolished
or for any other reason. The section provides that the
minister administering the Financial Management and Accountability
Act may issue directions
to transfer
from the old
department to the new department some or all of an amount
that has been appropriated for the performance of the function
by
the old
department.
Under this section the minister can make
an early, interim response and transfer an amount. If it
appears
that the
amount needs to
be adjusted, the minister
is given power to transfer an amount back to the old department.
However,
the minister cannot issue directions that transfer amounts
between parliamentary departments except in accordance
with a
written recommendation
of the presiding
officers.
Status of Bills
Under section 5 of the Constitution,
the Governor-General may, by proclamation or otherwise,
prorogue the Parliament.
Under
section 5 the Governor-General
may also dissolve the House of Representatives.
For the
purpose of the 1993, 1996 and 1998 general elections Parliament
was prorogued and the House of Representatives
was dissolved. This
practice was
also adopted
for the 2001 general election. Prorogation terminates a
session of Parliament. Dissolution terminates the House
of Representatives
and
therefore there
must be a general election.
‘Prorogation has the effect of terminating
all business pending before the Houses and Parliament does
not meet again until the date specified in the proroguing
proclamation or until the Houses are summoned to meet again
by the Governor-General’ (Odgers’ Australian
Senate Practice, 10th edition at 168).
Where Parliament
is prorogued all bills before either House lapse.
Where
prorogation of Parliament is not followed by a general
election, a bill which has lapsed before it has been finally
passed by a
House may be
revived
in the following session, under certain conditions. That
is, it may be proceeded with in the next session at the
stage it
had reached
in the
preceding session
(House of Representatives Standing Order 264, Senate Standing
Order 136). However, where there has been a prorogation
followed by a
dissolution
and general election
then a bill may not be revived. ‘The rationale of
this rule is that a bill which has been agreed to by one
House should not be taken to have been passed
again by that House if the membership of that House has
changed’ (Australian
Senate Practice at 282).
However, Senate procedures do allow
for some bills to be restored to the Notice Paper after
an election. This option
has not
been utilised by the
Government
after previous elections as the House of Representatives
will not accept
any bills restored by the Senate. Hence all bills that
are still required will
need to be reintroduced and proceeded with in the ordinary
manner.
‘Bills agreed to by both Houses during
a session are in practice assented to prior to the signing
of the prorogation proclamation’ (House of Representatives
Practice, 4th edition at 227).
However, if a bill had been
passed by both Houses and was awaiting Royal Assent at
the time Parliament was prorogued
and the House
of Representatives
dissolved
for the purpose of a general election, the accepted view
is that it would nevertheless be possible for the Governor-General
to
give his
assent
to the bill (House
of Representatives Practice at 221 and 227).
Inquiries by
parliamentary committees
House of Representatives
Where the House
of Representatives has been dissolved committees of the
House and joint committees appointed by standing
order or by resolution
cease to
exist (House of Representatives Practice at 221).
Senate
A committee appointed by the House
in the next Parliament to inquire into the same matter
as that inquired into by
a previous
committee
is nevertheless
a
different committee. However, Standing Order 341 empowers
committees to consider and make
use of the evidence and records of similar committees appointed
during previous Parliaments.
Joint committees established
by legislation, for example, the Joint Committee of Public
Accounts and Audit and the
Parliamentary
Standing
Committee
on Public Works, also cease to exist. The Acts establishing
those committees provide
that members cease to hold office when the House is dissolved.
The
constituting legislation of joint statutory committees
also commonly provides for the new committee to be able
to consider
evidence taken
by the previous
committee as if it had taken that evidence (see, for example,
section 24 of the Public
Works Committee Act 1969).
While the position in relation
to committees of the House of Representatives is clear
the position in relation to
Senate committees is not completely
settled. Questions have been raised whether Senate committees
have power to meet in
the period following prorogation and dissolution of the
House of Representatives and the next meeting of Parliament
following
a
general election (Australian
Senate
Practice at 515 and following). The Senate ‘has not
asserted its right to meet after a prorogation but has
regularly authorised its committees to do
so’ (Australian Senate Practice at 517). Consistently
with this, Senate committees were active in the period
after the prorogation of Parliament and
dissolution of the House of Representatives for the purpose
of the 1993 and the 1996 general elections (Australian
Senate Practice at 521–522).
For general information please contact:
Department of the
Prime Minister and Cabinet
Anne Dowd (02) 6271 5535
(Administrative Arrangements Order, ministers, Departments
and Secretaries)
Yvonne Fetherston (02) 6271 5787
(Legislation)
For general information about section 19B
and section 19BA orders under the Acts Interpretation
Act please contact:
Attorney-General’s Department,
Civil Justice Division
John
McGinness (02) 6250 6370
Sara Pesenti (02) 6250 6315
For legal advice please contact:
Australian Government
Solicitor, Office of General Counsel
Robert Orr QC (02)
6253 7129
Peter Lahy (02) 6253 7085
Leo Hardiman (02) 6253 7074
Denise Saunders (02) 6253 7036
Richard Harding (02) 6253 7026
For enquiries regarding supply of issues of the Briefing,
change of address details etc, tel: (02) 6253 7052 or fax:
(02) 6253 7313 or email: ags@ags.gov.au.
The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this briefing.
Back to Legal Briefing
Index
© Australian Government Solicitor
Print
this page
