Legal Briefing No. 72

Number 72

29 October 2004

After the election – what happens?

Margaret Byrne

Canberra
Margaret Byrne Senior General Counsel
Australian Government Solicitor
T 02 6253 7098 F 02 6253 7304
margaret.byrne@ags.gov.au

Sam Rosewarne

Canberra
Sam Rosewarne Counsel
Australian Government Solicitor
T 02 6253 7081 F 02 6253 7304
sam.rosewarne@ags.gov.au

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 that governs action
taken 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.

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 section 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 (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.
At 31 August 2004 when Parliament was prorogued and the House of Representatives
was dissolved the Third 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 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. At present, for example, the Minister for Veterans' Affairs
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 has been
a common practice of the Third Howard Government. For example, the Minister
for
Employment and Workplace Relations and the Minister for Employment Services
were each appointed to administer the Department of Employment and Workplace
Relations. 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 upheld
by the High Court of Australia in Re Patterson; Ex parte Taylor (2001) 207 CLR 391.

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 the AGS web site
at <www.ags.gov.au&gt;.

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.
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. Eleven individuals in
the Third Howard Ministry held offices designated as parliamentary secretary
at 31 August
2004.

Commission

The form of commission now in use does 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 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.

The current Order
can be accessed through the web site 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 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, to abolish existing departments and to alter existing
departments by changing their names is often exercised immediately
after a general
election. For example, after the 2001 general election the name of
the Department of
Health and Aged Care was changed to the Department of Health and
Ageing. As at 31 August 2004 there were 17 departments of State.

APS
employees

The Public Service Act 1999 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 rearrangement.

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.

'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 section 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 section 72 of the Public Service Act,
he or she will
usually be
covered by
the certified agreement of the agency into which they are moved.
However, the
terms and
conditions of employment for these employees can be affected by
the Public Service Regulations.
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 or the salary to which the employee would be entitled
after the move. 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.
Such a determination prevails, to the extent of any inconsistency,
over any award, certified 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 certified 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 certified 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 certified
agreement and/or
AWAs are
made.

A determination made in accordance with the Public Service
Regulations only applies to an employee until a new award,
certified agreement
or AWA 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
applying to that employee even though it may continue applying
to other
employees who were
subject to the section 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 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. In most
circumstances
the AWA will
operate
to the exclusion of the gaining agency's certified
agreement. Also in most circumstances, 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 certified
agreement if they were 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 section 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,
certified
agreement
or AWA is
made or varied that applies to the transferred employee.
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 certified agreement that applies in the losing agency
will not 'transmit' to
the gaining agency by virtue of section 170MB 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,
section
170MB will apply
and the certified agreement of the losing agency will 'transmit' to
the gaining agency.

Sometimes this will mean that transferred
employees are 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, section
170LY of the Workplace Relations Act sorts out the interaction
between the agreements. Where neither certified agreement
has passed its
nominal expiry
date, the agreement certified first will prevail over a
later-certified agreement. However, this relationship may
be affected by
section 72 of the Public Service
Act (where employees are moved out of the APS) or a determination
made in accordance with regulation 8.2 of the Public Service
Regulations (where employees
are
moved into the APS).

Section 170MBA 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 certified agreement because of
a transmission of business.
Where the outcomes under section 170MB following an administrative
rearrangement are inequitable, inappropriate or uncertain,
and are unable to be resolved
by section 72 of the Public Service Act or action under
the Public Service Regulations, consideration could be
given
to applying
for an order under
section 170MBA.

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 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 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 contacts all
departments for the purposes of determining the references
to specific ministers, departments and secretaries
which will need to be changed by orders made under sections
19B and 19BA. A copy of the Acts Interpretation (Substituted
References – Section 19B)
Order 1997 can be accessed on the web at <http://scaleplus.law.gov.au/html/instruments/0/27/top.htm>.
That Order contains a running list of substitutions that
have been made in respect of ministers, departments and
secretaries since 1997.

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 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 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
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 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

What is said 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 office-holder. On one view, authorisations of that
kind cease to have effect when the person holding the relevant
office
changes,
and
must be re-made.
However, the recent Full Federal Court decision in Commissioner
of Taxation v Mochkin (2003) 127 FCR 185 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 is not clear. The safest course
is for departments
to ensure
that
Carltona authorisations are 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
a secretary
for another
person to enter into AWAs under section 170WK of the Workplace
Relations Act on
his or her behalf should 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 the AGS web site <http://www.ags.gov.au&gt;.
This briefing is being updated to take account, for example,
of the decision of the Federal Court in Mochkin.

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
section 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 or his or her delegate
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.

Guidance on financial framework
issues can also be accessed through the Financial Management
Guidelines No. 5 – Guidelines for Implementation
of Administrative Arrangements Orders and Other Machinery
of Government Changes, September 2003 – published
by the Department of Finance and Administration.

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 1996, 1998 and 2001 general elections Parliament
was prorogued and the House of Representatives
was dissolved. This
practice was
also adopted for the 2004 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).

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 at 537 and 541).

Senate

In the Senate, prorogation has the consequence 'that
all business on the Notice Paper lapses on the day before
the next sitting' (Australian
Senate Practice at 506) (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'. 'Ministerial departments
are advised to answer questions outstanding at prorogation' (Australian
Senate Practice at 506).

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).

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).

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 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, 1996 and 2001 general elections
(Australian Senate Practice at 521–522).

Margaret Byrne is a Senior General Counsel who is expert
in industrial relations and employment law, especially
in relation to agreement-making, termination of employment
and issues arising from administrative rearrangements.
She also advises on constitutional aspects of industrial
relations and employment law.

Sam Rosewarne is a Counsel who specialises in matters
of statutory interpretation and public law generally. He
has provided advice across a range of industrial relations
and employment law matters, with a particular focus upon
issues arising in the context of the Public Service Act
1999.

Contacts

For general information please contact:

Department of the Prime Minister and Cabinet

Anne Dowd
(02) 6271 5535
(Administrative Arrangements Order, ministers, departments
and secretaries)

Henry Thomson (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

Amanda
Davies (02) 6250 6370

Jonathon Meredith (02) 6250 6351

For legal advice please contact:

Australian Government Solicitor, Office of General Counsel

Robert
Orr QC (02) 6253 7129
Peter Lahy (02) 6253 7085
Margaret Byrne (02) 6253 7098
Sam Rosewarne (02) 6253 7081
Leo Hardiman (02) 6253 7074

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

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.

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