29 October 2004
After the election – what happens?
Margaret Byrne Senior General Counsel
Australian Government Solicitor
T 02 6253 7098 F 02 6253 7304
Sam Rosewarne Counsel
Australian Government Solicitor
T 02 6253 7081 F 02 6253 7304
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
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.
Sections 64 and 65 of the Constitution provide:
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
The resignation of the existing Prime Minister following
a general election for the House of Representatives terminates
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.
administer a department
A minister is appointed to administer
a department. This requirement, when joined with the disqualification
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.
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
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
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).
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
of the latter minister. In relation to statutory powers and functions,
this is made possible by sections 18C and 19 of the Acts
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
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
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'.
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
ministers, parliamentary secretaries are appointed under section 64 of
to administer departments and are remunerated. Eleven individuals in
the Third Howard Ministry held offices designated as parliamentary secretary
at 31 August
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
of a parliamentary secretary he or she is directed to hold the office
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,
makes a new Administrative
The Order provides a detailed description of each
department's and minister's
responsibilities. This Order sets out for each department:
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
- 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).
is more than one minister administering a department, the Order operates
so that each minister administers all the legislation
to that department. Arrangements for the allocation of responsibilities
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>.
The departments are such as the Governor-General
in Council establishes from time to time under section
64 of the Constitution.
departments carries with it the power to abolish existing departments,
and to alter existing departments by changing their names. The power
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.
The Public Service Act 1999 makes provision for
the movement of APS employees associated with machinery
changes which usually
an election (see section 72). In particular, the Public Service Commissioner
is able to move APS employees from one agency to another without
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
including one that results from an order made by the Governor-General.
This would include the Administrative Arrangements Order referred
'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
Where an APS employee is moved from one APS agency
to another under section 72 of the Public Service Act,
he or she will
the certified agreement of the agency into which they are moved.
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
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
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
Sometimes new departments are created after an election
to carry out functions that were previously the responsibility
cases there will be no existing certified agreement that
could apply to transferred employees. A determination made
will be needed to ensure that appropriate terms and conditions
exist for the transferred employees until a new certified
A determination made in accordance with the Public Service
Regulations only applies to an employee until a new award,
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
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
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
expressed as not
applying to employees who are parties to AWAs. In most
the AWA will
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
As well as administrative rearrangements where functions
are moved between APS agencies, functions may be moved
agencies to non-APS bodies
and vice versa. These types of rearrangements tend to be
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
not less favourable
than those the employee enjoyed as an APS employee. This
protection continues until the next occasion when an award,
or AWA is
made or varied that applies to the transferred employee.
When employees are
a non-APS body into an APS agency, the Public Service Regulations
provide for the making of determinations to preserve the
and conditions. However, unlike employees who are moved
between APS agencies,
is made for the higher of the pre-transfer and post-transfer
salaries to apply
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
However, when there is a transfer of functions
between an APS agency and a statutory body that employs
of the Commonwealth) there will usually be a transmission
of business. This means that following the transfer of
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,
transmission and the other
applying on its face to employees in the gaining agency.
170LY of the Workplace Relations Act sorts out the interaction
between the agreements. Where neither certified agreement
has passed its
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
moved into the APS).
Section 170MBA of the Workplace Relations
Act gives power to the Australian Industrial Relations
Commission to make
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
for an order under
Appointment of secretaries
When a new department is established,
the office of secretary of that department is also established
(section 56(1) of
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
a period up to five years (section 58(1)) and may, having
received a relevant report about a proposed termination,
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
It is not, however, necessary to amend each and every reference
to a specific minister, department or secretary contained
in an Act
sections 19B and 19BA of the Acts Interpretation Act confer
on the Governor-General powers to make orders which appropriately
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
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
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
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
under section 19B.
Section 19BA of the Acts Interpretation Act
provides an additional power for the Governor-General to
to specific ministers,
and secretaries. In particular, in some cases the name
of a minister, department and secretary will stay the same
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
Instruments under Acts
The powers conferred on the Governor-General
by sections 19B and 19BA of the Acts Interpretation Act
may, by virtue
46(1)(a) of that
be exercised to change specific references to ministers,
departments and secretaries which are contained in instruments
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 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
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
change is the person who holds the office of minister or
secretary of the department. Similarly, a delegation continues
simply been a change
in the designation of a minister, secretary or department.
However, in both cases, it is clearly good administrative
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
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
of persons performing
Similar considerations apply in the case of departments
which are abolished. Delegations of power to persons within
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
What is said in relation to delegations
applies equally to statutory authorisations.
The position is less clear in relation
to instruments of authorisation which provide for specified
persons to exercise
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
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
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
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,
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
Number 24 'Devolution
of Power within Government' which can be accessed
through the AGS web site <http://www.ags.gov.au>.
This briefing is being updated to take account, for example,
of the decision of the Federal Court in Mochkin.
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
section 19B or 19BA
of the Acts Interpretation Act has been made, a reference
in an Appropriation Act to the former department is to
new department translated in accordance with the order.
This follows from
the terms of
sections 19B and 19BA themselves.
Financial Management and
Section 32 of the Financial Management
and Accountability Act 1997 applies if a function of a
department (the old
of another department (the new department) either because
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
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.
the minister cannot issue directions that transfer amounts
between parliamentary departments except in accordance
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.
Under section 5 of the Constitution, the Governor-General
may, by proclamation or otherwise, prorogue the Parliament.
section 5 the Governor-General
may also dissolve the House of Representatives.
purpose of the 1996, 1998 and 2001 general elections Parliament
was prorogued and the House of Representatives
was dissolved. This
also adopted for the 2004 general election. Prorogation
terminates a session of Parliament. Dissolution terminates
of Representatives and
therefore there must be a general election.
has the effect of terminating all business pending before
the Houses and Parliament does not meet again until the date specified in the
proclamation or until the Houses are summoned to meet again
by the Governor-General' (Odgers' Australian
Senate Practice, 10th edition at 168).
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
in the following session, under certain conditions. That
is, it may be proceeded with in the next session at the
(House of Representatives Standing Order 264, Senate
Standing Order 136). However, where there has been a prorogation
followed by a
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.
been utilised by the
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
'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
and the House
for the purpose of a general election, the accepted view
is that it would nevertheless be possible for the Governor-General
to the bill (House
of Representatives Practice at 221 and 227).
House of Representatives
Any unanswered questions that
are still on the Notice Paper at prorogation of the Parliament
or the dissolution
lapse and answers
received by the Clerk of the House after that time cannot
be accepted (House of
Representatives Practice at 537 and 541).
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
order or by resolution
exist (House of Representatives Practice at 221).
appointed by the House in the next Parliament to inquire
into the same matter as that inquired into
by a previous
different committee. However, Standing Order 341 empowers
committees to consider and make use of the evidence and
records of similar
during previous Parliaments.
Joint committees established
by legislation, for example, the Joint Committee of Public
Accounts and Audit and
on Public Works, also cease to exist. The Acts establishing
those committees provide
that members cease to hold office when the House is dissolved.
constituting legislation of joint statutory committees
also commonly provides for the new committee to be able
by the previous
committee as if it had taken that evidence (see, for
example, section 24 of the Public Works Committee
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
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
For general information please contact:
Department of the Prime Minister and Cabinet
(02) 6271 5535
(Administrative Arrangements Order, ministers, departments
Henry Thomson (02) 6271 5787
For general information about section 19B and section
under the Acts Interpretation Act please contact:
Attorney-General's Department, Civil Justice
Davies (02) 6250 6370
Jonathon Meredith (02) 6250 6351
For legal advice please contact:
Australian Government Solicitor, Office of General Counsel
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.