Legal Briefing No. 43

Number 43

(23 September 1998)

AFTER A GENERAL ELECTION – SOME LEGAL ISSUES

Introduction

This Briefing discusses a number of legal issues which
arise after a general federal election. 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.

Minister must be Member 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 30 (section 4). Subject to
amendment, 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 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. On some occasions the practice of having a
Minister designated to assist another Minister in the latter's
administration of the department has continued. In so assisting,
the Minister designated acts for or on behalf of the latter
Minister. In relation to statutory powers and functions,
this is made possible by section 19 of the Acts Interpretation
Act 1901.

Parliamentary Secretaries

In the past unsalaried 'Parliamentary Secretaries' have
been appointed. Statutory provision is now made in the Parliamentary
Secretaries Act 1980 for the Prime Minister to appoint
a member of either House of Parliament to be a Parliamentary
Secretary to a Minister of State.

No remuneration is payable in respect of such an appointment,
but a person so appointed may be reimbursed out of the
Consolidated Revenue Fund for expenses reasonably incurred,
up to the level determined by the Remuneration Tribunal.
Such persons are not Ministers of State in the constitutional
sense, and they could not take political responsibility
for a department. But in practice they are also appointed
as Federal Executive Councillors. This enables them to
act for or on behalf of a Minister (especially the Minister
to whom they are appointed) in the exercise of statutory
functions (section 19 of the Acts Interpretation Act).

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) 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 the 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. 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 1996 general election the Department
of Housing and Regional Development was abolished and the
name of the Department of Human Services and Health was
changed to the Department of Health and Family Services.

The resultant changes flow through to Schedule 2 of the Public
Service Act 1922 by operation of the deeming provision
in subsection 7A(1) of that Act. (The Public Service
Bill 1997 which repeals the Public Service Act was
not passed by Parliament before the general election
was called and has lapsed.) Notification in the Gazette of
departmental changes must be given by the Prime Minister
as soon as practicable (subsection 7A(2)).

The Public Service Act also implies a power to create,
abolish, replace or alter the office of the Secretary of
a department. Implementation is effected by the operation
of the deeming provision in subsection 25(1) of the Public
Service Act. Notification in the Gazette of changes
in the offices of Secretaries must be given by the Prime
Minister as soon as practicable (subsection 25(1A)).

Appointment of Secretaries

When a new department and the office of its Secretary
are created, the Governor-General in Council can then appoint
a person to the office. The procedures to be followed are
prescribed by section 36 of the Public Service Act.

Creation and Filling of Other Offices

Where a department has been abolished, the Prime Minister
may, under subsection 29(1) of the Public Service Act,
create in another department, or direct the relevant Secretary
of another department to create in that other department,
an office that has the same classification and substantially
the same duties as an office that existed in the abolished
department, and declare the office so created to be in
substitution for the abolished office. For example, this
occurred in 1996 following the abolition of the Department
of Housing and Regional Development and the transfer of
its functions to other departments.

Subsection 29(2) makes similar provision for the abolition
and creation of offices where, by virtue of changes in
administrative arrangements, functions are transferred
from one department to another.

Where the abolished office was, at the time it ceased
to exist, occupied by an officer, the officer is automatically
transferred to the substituted office (subsection 51AA(2)).
Where the abolished office was vacant at the time it ceased
to exist, any action taken in relation to filling the vacancy
is deemed to have occurred in relation to the filling of
the vacancy in the substituted office (subsection 51AA(3)).
In these circumstances, offices may be abolished and created
by the Prime Minister and officers transferred without
the involvement of the relevant Secretaries.

However, where a new department is created which does
not take over the functions of another department so that
the offices will not be in substitution for offices that
have been abolished, action cannot be taken to create and
fill new offices until a Secretary (or acting Secretary)
has been appointed, as he or she is vested with the power
to create offices in the department (section 27).

Section 82BA of the Public Service Act is similar in its
operation to sections 29 and 51AA of that Act except that
section 82BA deals with the position of 'employees' rather
than 'officers'.

19B and 19BA Orders

Some Acts, and instruments made under Acts, refer to specific
Ministers, departments and Secretaries of departments.
These specific references need to be altered to reflect
the changes in Ministers, departments and Secretaries which,
as discussed above, commonly occur following a general
election.

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
that the Governor-General make orders under section 19B.

Section 19BA Orders

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 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.

For example, in October 1997, under amendments to the
March 1996 Administrative Arrangements Order, responsibility
for administering legislation related to shipping and marine
navigation was transferred from the Minister for Transport
and Regional Development to the Minister for Workplace
Relations and Small Business. There was no change in the
designation of either Minister. However, the change in
administration of the legislation meant that references
in the legislation to the Minister for Transport and Regional
Development needed to be changed to references to the Minister
for Workplace Relations and Small Business. The Governor-General
relied on section 19BA to make an order appropriately changing
the specific references.

The changes in the administrative arrangements which are
made following an election sometimes, but not often, necessitate
that the Governor-General make 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.

Process

The Attorney-General's Department will, following the
election, 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 power
    of delegation ('instruments of delegation');
  • an instrument which, in accordance with an express
    statutory provision, appoints persons as 'authorised
    officers' so that those persons can exercise statutory
    powers conferred on authorised officers ('statutory authorisations');
    and
  • an instrument made by a person in whom a statutory
    power is vested which authorises an official to exercise
    the statutory power on the person's behalf ('Carltona authorisations').

Instruments of Delegations

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 officers 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.
That is because the offices held by the relevant officers
within the originating department are abolished and corresponding
offices are created in the receiving department at the
time the functions are transferred. New delegations will
need to be made in favour of persons holding relevant corresponding
offices in the receiving department. Those new delegations
should be made without delay after the creation of the
corresponding offices.

Similar considerations apply in the case of departments
which are abolished. Delegations of power to officers of
that department will cease to have effect at the time of
the department's abolition. If the functions performed
by the abolished department are transferred to another
department (the receiving department) the usual course
is to create offices in the receiving department corresponding
to the offices in the abolished department. New instruments
of delegation should be made without delay in favour of
persons holding relevant corresponding offices in the receiving
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,
that is, which are made in the exercise of an implied power
to authorise or under a relevant statutory power to authorise. 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.

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
Window on the Law (http://law.gov.au/publications/pubs.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

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 and the 1996 general election
Parliament was prorogued immediately before the House of
Representatives was dissolved. This practice was also adopted
for the 1998 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 a session of
Parliament until the date specified in the proclamation
or until the Houses are summoned to meet again by the Governor-General,
and of terminating all business pending before the Houses' (Odgers' Australian
Senate Practice, 8th ed. at 171).

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
266).

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,
3rd ed. at 243). 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 238).

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 238).

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. 'Consequently,
the House must expressly authorise such a committee to
have access to the records of and evidence taken by the
previous committee. Without that authority no such access
is permissible' (House of Representatives Practice at
615).

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).

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. Views have
been expressed that Senate committees do not have power
to meet in the period following dissolution of the House
of Representatives and the next meeting of Parliament following
the general election (Australian Senate Practice at
487-490). However, the Senate 'has asserted that ... its
committees may meet after a dissolution of the House of
Representatives' (Australian Senate Practice at
485). Consistently with this assertion, 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 490).

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

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
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

Back to Legal Briefing
Index