Legal Briefing
Number 85
10 November 2007
After the election — what happens?
Significant administrative rearrangements concerning
ministers, departments and other Commonwealth bodies,
and APS employees and other Commonwealth officials, often
follow a general election. The purpose of this briefing
is to assist those affected by these rearrangements to
better understand the constitutional and statutory framework
and to ensure the successful implementation of the proposed
changes.
The briefing also outlines the impact that the prorogation
of the Parliament and the dissolution of the House of Representatives
has had on particular parliamentary business. The matters
discussed in this briefing often involve government 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 of the briefing.
Ministers
Sections 64 and 65 of the Constitution provide:
64 Ministers of State
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.
65 Number of Ministers
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 s 62 as executive councillors
before being appointed as ministers.
Number of ministers
Under the Ministers of State Act 1952, the number of ministers
is not to exceed 42 (s 4). Up to 12 may be designated as
parliamentary secretaries. Up to 30 may be designated as
other than parliamentary secretaries. At present, 42 is
the maximum possible number of ministers, but fewer ministers
can be appointed. On 17 October 2007, after Parliament
was prorogued and the House of Representatives was dissolved,
the Fourth Howard Ministry had 42 ministerial offices.
Ministers administer a department
A minister is appointed to administer a department. This
requirement, when joined with the disqualification provisions
in s 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. At present,
for example, the Minister for Defence administers both
the Department of Defence and the Department of Veterans’ Affairs.
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. This was a common practice of the
Fourth Howard Government. For example, the Minister for
Education, Science and Training and the Minister for Vocational
and Further Education and the parliamentary secretary were
each appointed to administer the Department of Education,
Science and Training. Thus, where portfolio legislation
confers a particular power on ‘the Minister’,
each of the administering ministers is able to exercise
that power (see the Acts Interpretation Act 1901, s 19A).
The validity of this practice, adopted by successive governments
since 1987, was upheld by the High Court of Australia in
Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Re
Patterson).
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 authorised minister acts for or on behalf
of the latter minister. In relation to statutory powers
and functions, this is made possible by ss 18C and 19 of
the Acts Interpretation Act.
Under s 18C it is possible, for example, for a portfolio
minister to authorise a non-portfolio minister to perform
or exercise, on behalf of the authorising minister, functions
or powers which the authorising minister has under an Act
which he or she administers. The authority would include
functions or powers that the authorising minister has under
delegated legislation made under or for the purposes of
an Act.
An authorisation must be both given and revoked in writing.
It is possible for a relevant authorisation given under
s 18C to continue to have effect after the authorising
minister ceases to hold office (for example, because of
resignation or death) and before another person is appointed
to fill the office.
Under s 19 it is possible for a minister to authorise
another minister (whether in the same portfolio or not)
to perform or exercise statutory functions or powers conferred
on the authorising minister by legislation which he or
she does not administer.
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 s 44 of the Constitution.
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
s 64 of the Constitution to administer departments, and
are remunerated. Twelve individuals in the Fourth Howard
Ministry held offices designated as parliamentary secretary
at 17 October 2007, including two who held the office as ‘Assistant
Minister’.
Commission
The form of commission now in use achieves two things.
It provides for a person who is an executive councillor
to hold a particular office; in the case of a parliamentary
secretary, he or she is directed to hold the office of
parliamentary secretary to a particular minister. It also
directs the person to administer a particular department.
Thus, at the one stroke, there is a designation of an executive
councillor as a minister and an identification of 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 matters dealt
with by a department and the legislation administered by
a minister administering a department.
- The matters to be dealt with by the department include
the matters set out in the order (and the order provides
that the department’s matters include matters arising
under legislation administered by the department’s
minister).
- The legislation to be administered by a minister for
that department is set out in the order (and it also
provides that the minister administers legislation, passed
before or after the order was made, 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.
The current order can be accessed through the website
of the Department of the Prime Minister and Cabinet at www.pmc.gov.au.
Departments
The departments are such as the Governor-General in Council
establishes from time to time under s 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, to abolish existing departments
and to alter existing departments by changing their names
is often exercised immediately after a general election,
but can occur at any stage. For example, in January 2007,
the Department of Immigration and Multicultural Affairs
had its name changed to the Department of Immigration and
Citizenship. As at 17 October 2007 there were 18 departments
of State.
APS employees
The Public Service Act 1999 makes provision for the movement
of APS employees associated with the machinery of government
changes which usually occur following an election (see
s 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 rearrangement.
The term ‘administrative rearrangement’ is
defined in s 72(6) of the Public Service Act to mean any
increase, reduction or reorganisation in Commonwealth functions,
including one that results from an order by the Governor-General.
This would include the Administrative Arrangements Order
referred to above.
‘Agencies’ for the purposes of the Public
Service Act are staffed by persons employed under that
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 s 65 of the Public Service Act) and
statutory agencies (established under other legislation)
are also agencies.
Terms and conditions of employment
Where an APS employee is moved from one APS agency to
another under s 72 of the Public Service Act, he or she
will usually be covered by the workplace agreement of the
agency into which he or she is moved. However, the terms
and conditions of employment for these employees can be
affected by the Public Service Regulations 1999. The regulations
ensure that an employee’s salary on the day when
the move occurs will be the greater of the salary that
applied immediately before the move and the salary to which
the employee would be entitled after the move (Reg 8.1(2)).
The regulations thus ensure that an employee who is moved
between APS agencies will not suffer any disadvantage in
terms of salary as a result of an administrative rearrangement.
With respect to terms and conditions other than salary,
the Public Service Regulations allow for the making of
a determination preserving some or all of the employee’s
existing conditions of employment (Reg 8.1(3)). Such a
determination prevails, to the extent of any inconsistency,
over any award, collective agreement or AWA that would
otherwise apply. The regulations thus provide a means for
preserving an employee’s status quo where this is
considered necessary or desirable after an administrative
rearrangement. However, conditions that applied in the
losing agency cannot be preserved where that would involve
a reduction of any individual term or condition applicable
to the employee under a collective agreement that applies
to the employee in the gaining agency.
Sometimes new departments are created after an election
to carry out functions that were previously the responsibility
of existing APS agencies. In these cases there will be
no existing collective agreement that could apply to transferred
employees.
A determination made in accordance with the Public Service
Regulations will be needed to ensure that appropriate terms
and conditions exist for the transferred employees until
a new workplace agreement is made.
A determination made in accordance with the Public Service
Regulations only applies to an employee until a new workplace
agreement that applies to the employee starts operating.
Thus, if an employee who is covered by a determination
makes an AWA after the move, the determination will cease
to apply to that employee even though it may continue to
apply to other employees who were subject to the s 72 transfer.
APS employees who are parties to AWAs will usually continue
to be covered by their AWAs if they are moved into a different
agency, unless express provision is made in the AWA to
prevent this from occurring. Consequently, any determinations
made in accordance with the Public Service Regulations
to preserve pre-transfer terms and conditions of employment
will typically be expressed as not applying to employees
who are parties to AWAs. The AWA will operate to the exclusion
of the gaining agency’s collective agreement. The
salary of the employee immediately after the move will
be their AWA salary, even if it is lower than the salary
that would have applied to the employee under the collective
agreement if the employee was not party to an AWA.
As well as administrative rearrangements where functions
are moved between APS agencies, functions may be moved
from APS agencies to non-APS bodies and vice versa. These
types of rearrangements tend to be less common immediately
after an election than moves between APS agencies, but,
when they occur, affected employees are usually moved under
s 72 of the Public Service Act.
Section 72 ensures that the salary and other conditions
of an employee who is moved out of the APS into a non-APS
Commonwealth body are not less favourable than those the
employee enjoyed as an APS employee. This protection continues
until the next occasion when an award or workplace agreement
that applies to the transferred employee is made or varied
or the Australian Fair Pay and Conditions Standard is adjusted.
When employees are moved from a non-APS body into an APS
agency, the Public Service Regulations provide for the
making of determinations to preserve the pre-transfer terms
and conditions. However, unlike employees who are moved
between APS agencies, no provision is made for the higher
of the pre-transfer and post-transfer salaries to apply
automatically.
Transmission of business issues
Where functions are moved between APS agencies, there
is no ‘new employer’ for the purposes of the
transmission of business provisions of the Workplace
Relations Act 1996. The Commonwealth is the employer of all APS employees.
This means that a workplace agreement that applies in the
losing agency will not ‘transmit’ to the gaining
agency by virtue of Part 11 of the Workplace Relations
Act.
However, when there is a transfer of functions between
an APS agency and a statutory body that employs employees
on its own behalf (rather than on behalf of the Commonwealth)
there will usually be a transmission of business. This
means that, following the transfer of the function, Part
11 will apply and the workplace agreement of the losing
agency will ‘transmit’ to the gaining agency.
The transmitted agreement applies only in relation to transferring
employees and only for a period of 12 months (the transmission
period).
A transmitted collective agreement ceases to operate if
the transferring employee makes an AWA with the new employer.
Sometimes this will mean that transferred employees are
potentially within the coverage of two certified agreements,
one applying by transmission and the other applying on
its face to employees in the gaining agency. Where this
occurs, Part 11 of the Workplace Relations Act sorts out
the interaction between the agreements. The transmitted
agreement will operate to the exclusion of the existing
agreement for the transmission period. After this time,
the existing agreement applies according to its terms.
If the agency makes a new collective agreement that covers
the employee’s employment, the transmitted collective
agreement will cease to operate (even if it has not passed
its nominal expiry date).
However, this relationship may be affected by s 72 of
the Public Service Act (where employees are moved out of
the APS) or a determination made in accordance with Reg
8.2 of the Public Service Regulations (where employees
are moved into the APS).
Section 590 of the Workplace Relations Act gives power
to the Australian Industrial Relations Commission to make
orders that will stop a new employer being bound by a collective
agreement because of a transmission of business. Where
the outcomes under Part 11 of the Workplace Relations Act
following an administrative rearrangement are inequitable,
inappropriate or uncertain, and are unable to be resolved
by s 72 of the Public Service Act or action under the Public
Service Regulations, an order could be sought under s 590.
Appointment of secretaries
When a new department is established, the office of secretary
of that department is also established (Public Service
Act, s 56(1)). When a department is abolished, the office
of secretary is also abolished (s 56(2)). When a department
is simply renamed, the office of secretary is not abolished.
The Prime Minister, having
received a relevant report, may appoint a person to be
the secretary of a department for a period up to five years
(s 58(1)) and, having received a relevant report about
a proposed termination, may also terminate the appointment
of a secretary at any time (s 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 (Acts Interpretation
Act, s 19A). A reference to a particular 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 the rearrangements
following a general election.
It is not necessary, however, to amend each and every
reference to a specific minister, department or secretary
contained in an Act or instrument. Rather, ss 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
Section 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.
Section 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, s 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 s 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 s 19BA.
Instruments under Acts
The powers conferred on the Governor-General by ss 19B
and 19BA of the Acts Interpretation Act may also be exercised
by virtue of s 13(1)(a) of the Legislative Instruments
Act 2003 and s 46(1)(a) of the Acts Interpretation Act
to change specific references to ministers, departments
and secretaries which are contained in instruments made
under Acts. The Legislative Instruments Act deals generally
with instruments made under Acts that are of a legislative
character determined
in accordance with that Act and the Legislative Instruments
Regulations 2004. Section 46(1)(a) of the Acts Interpretation
Act is concerned with instruments that are not legislative
instruments for the purposes of the Legislative Instruments
Act or rules of court.
The Attorney-General’s Department contacts all departments
for the purpose of determining the references to specific
ministers, departments and secretaries which will need
to be changed by orders made under ss 19B and 19BA. A copy
of the Acts Interpretation (Substituted References – Section
19B) Order 1997 and the Acts Interpretation (Substituted
References – Section 19BA) Order 2004 can be accessed
through ComLaw at www.comlaw.gov.au. Those orders are in
the form of running lists of substitutions that have been
made in respect of ministers, departments and secretaries
since 1997 and 2004, respectively.
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.
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 his or her own right.
- An instrument made in accordance with an express statutory
provision that 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 of 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 officeholders
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 old department) to another department, delegations
of power to persons within the old 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
The information in relation to delegations applies equally
to statutory authorisations.
Carltona authorisations
The position is less clear in relation to instruments
of authorisation which provide for specified persons to
exercise relevant powers ‘for and on behalf of’ an
officeholder. On one view, authorisations of this kind
cease to have effect when the person holding the relevant
office changes, so the authorisations must be remade. However,
the Full Federal Court decision in Commissioner of Taxation
v Mochkin (2003) 127 FCR 185 has indicated that such steps
are not necessary in the context of particular powers in
the Income Tax Assessment Act 1936. The ramifications of
this decision in the context of other legislation and other
powers are not clear. The safest course is for departments
to ensure that Carltona authorisations are remade 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 a secretary for another person to enter into AWAs under
s 415 of the Workplace Relations Act on his or her behalf
should be reviewed. More detailed information about delegations
and authorisations is contained in Legal Briefing No.
74, ‘Delegations,
authorisations and the Carltona principle’, which
can be accessed through the AGS website at www.ags.gov.au.
Availability of appropriations
Orders under the Acts Interpretation Act
There are two ways in which appropriations can be available
after a change in departments. Where an applicable order
under s 19B or s 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 ss 19B and 19BA themselves.
Financial Management and Accountability Act
A new s 32 was recently inserted into the Financial
Management and Accountability Act 1997 by the Financial
Framework Legislation Amendment Act (No. 1) 2007.
Section 32 applies if a function of a department (the
transferring department)
is transferred to another department, either because the
transferring department is abolished or for any other reason.
The section provides that the minister administering the
Financial Management and Accountability Act or his or her
delegate may determine that one or more Schedules to one
or more Appropriation Acts are amended in a specified way.
The amendment must be related to the transfer of the function.
As the Replacement Explanatory Memorandum for the Bill
which became the Financial Framework Legislation Amendment
Act points out, the new s 32 will provide clearer legislative
authority to address a range of practical situations that
can arise following a transfer of functions or machinery
of government changes. Notably, because it provides for
each Appropriation Act concerned to have effect as if it
were amended in accordance with the minister’s determination,
agencies would be able to assess their financial position
more clearly. Agencies would not be put in the position
of needing to interpret a ministerial direction and determining
what effect it had on the unaltered text of the Appropriation
Act, which was the mechanism under the ‘old’ s
32.
Importantly, a ministerial determination under s 32 cannot
result in a change to the total amount appropriated.
Section 32 determinations are legislative instruments
for the purposes of the Legislative Instruments Act. However,
they are not subject to disallowance or sunsetting.
Section 32 determinations may be expressed to operate
retrospectively. This would enable them to operate, for
example, from the date an Administrative Arrangements Order
is made. Of course, any expenditure that occurred in the
period after the order was made but before the determination
was made would need to have been supported by an existing
appropriation.
A minister cannot issue s 32 determinations in respect
of transfers of functions between parliamentary departments
unless it is in accordance with written recommendations
of the presiding officers.
Guidance on financial framework issues is also contained
in Implementing Machinery of Government Changes: A Good
Practice Guide. The guide was developed jointly by the
Australian Public Service Commission, the Department of
Finance and Administration, and the Department of Employment
and Workplace Relations and can be accessed through the
Australian Public Service Commission website at www.apsc.gov.au.
Status of bills
Under s 5 of the Constitution, the Governor-General may,
by proclamation or otherwise, prorogue the Parliament.
Under s 5, the Governor-General may also dissolve the House
of Representatives.
For the purposes of the 1998, 2001 and 2004 general elections,
Parliament was prorogued and the House of Representatives
was dissolved. This practice was also adopted for the 2007
general election, although the prorogation and dissolution
did not occur on the same day, as had occurred previously.
Prorogation terminates a session of Parliament. Dissolution
terminates the House of Representatives; therefore, there
must be a general election.
Odgers’ Australian Senate Practice (11 ed, p 142)
states:
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.
Where Parliament is prorogued, all bills before the House
of Representatives and the Senate 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
and Sessional Orders (House of Representatives Standing
Orders), Order 174; Standing Orders and Other Orders
of the Senate (Senate Standing Orders), Order 136). However,
where there has been a prorogation followed by a dissolution
and general election, a bill may not be revived.
Odgers’ Australian Senate Practice (p 261) states:
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.
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.
The House of Representatives Practice (5 ed, p 227) states:
Bills agreed to by both Houses during a session are
in practice assented to prior to the signing of the prorogation
proclamation.
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
assent to the bill (House of Representatives Practice,
pp 221 and 227).
Questions on notice
House of Representatives
Any unanswered questions that are still on the Notice
Paper at prorogation of the Parliament or the dissolution
of the House lapse, and answers received by the Clerk of
the House after that time cannot be accepted (House
of Representatives Practice, pp 550 and 555).
Senate
In the Senate, prorogation has the consequence ‘that
all business on the Notice Paper lapses on the
day before the next sitting’ (Odgers’ Australian Senate
Practice, p 491) (emphasis added). It appears that, if
answers are not given before the next sitting day, the
Department of the Senate would inquire of senators whether
they wish to ‘renew the questions when the Senate
resumes’. Odgers’ Australian Senate Practice (p 491) states:
Ministerial departments are advised to answer questions
outstanding at prorogation.
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, p 221).
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, committees are empowered to consider and make
use of the evidence and records of similar committees appointed
during previous parliaments (House of Representatives Standing
Orders, Order 237).
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, s 24 of
the Public Works Committee Act 1969).
Senate
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 as to 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 (Odgers’ Australian
Senate Practice, p 505). The Senate ‘has not asserted
its right to meet after a prorogation, but has regularly
authorised its committees to do so’ (Odgers’ Australian
Senate Practice, p 501). Consistently with this, Senate
committees have regularly met after the prorogation of
Parliament and dissolution of the House of Representatives
for the purposes of private meetings and public hearings
(Odgers’ Australian Senate Practice, p 505).
Peter Lahy is a Special Counsel who specialises in providing
advice on complex constitutional and statutory interpretation
matters. Peter has provided ongoing advice to many clients
on a wide range of machinery of government issues including
delegations and authorisations, the making of orders under
the Acts Interpretation Act necessitated by changes in
administrative arrangements, and the relationship between
the executive government and Parliament.
Leah Edwards is a Senior General Counsel in the Office
of General Counsel who specialises in the fields of employment
and workplace relations law, statutory interpretation and
administrative law. She has advised numerous Commonwealth
agencies on the employment implications relating to the
Uhrig Report recommendations and more generally following
a machinery of government change.
Contacts
The material in this briefing is provided to AGS
clients 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.© AGS
All rights reserved
© Australian
Government Solicitor
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