(23 September 1998)
AFTER A GENERAL ELECTION – SOME LEGAL ISSUES
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.
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.
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).
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.
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.
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.
What is said in relation to delegations applies equally to statutory 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).
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.