Chapter 19 - Relations with the executive government
Parliamentary secretaries
Some members of the Senate are appointed by the government to assist
ministers in their work. They are now referred to as parliamentary secretaries.
In the past, persons who performed similar functions have been known by a
variety of designations, including parliamentary under-secretary and assistant
minister.
Parliamentary secretaries are now appointed under an amendment made in
2000 to the Ministers of State Act 1952, which prescribes the
number of ministers under section 65 of the Constitution. The statutory
provision provides for them to be appointed as ministers, but without that
title or status. The purpose of this paradoxical provision is to allow them to
be paid salary for the office without incurring disqualification under section
44(iv.) of the Constitution, which prevents members of either House holding an
office of profit under the Crown, excepting only ministers. (For comments on the
constitutional propriety of this provision, see the remarks by Senator Harradine, SD, 16/2/2000, pp 11926-7. This arrangement, however, was, in
effect, upheld by the High Court: In Re Patterson, ex parte Taylor 2001 182 ALR 657.)
Before the 2000 provision, parliamentary secretaries were appointed
under the Parliamentary Secretaries Act 1980, and were not paid any
remuneration of office but were reimbursed for expenses.
Since 1990, when the practice of appointing parliamentary secretaries
was resumed, at least one senator has always been included in their number.
The first assistant minister to be appointed in the Senate was Senator E J Russell, who held that
office during 1914-16. As assistant minister, Senator Russell answered
questions (without notice and upon notice), laid papers on the table, initiated
and controlled the passage through the Senate of legislation, moved other
motions, and generally did all those things which a minister representing
another minister in the other House does in the Senate. No special resolution
or changes in the standing orders were made to enable Senator Russell to discharge the
functions of a minister.
The legal status of parliamentary secretaries and the extent of their
powers was the subject of debate on a number of occasions in the past; for
further details see the report of the Senate’s Standing
Committee on Constitutional and Legal Affairs on The Constitutional
Qualifications of Members of Parliament (PP 131/1981).
A continuing order
of the Senate authorises parliamentary secretaries to exercise the powers and
perform the functions conferred upon ministers by the procedures of the Senate,
but they may not be asked or answer questions which may be put to ministers
under standing order 72(1), or represent a
Senate minister in respect of that minister’s responsibilities before a
committee examining the estimates.
The history of this order is as follows. The Parliamentary
Secretaries Act 1980 did not define the powers or duties of a parliamentary
secretary and thus did not settle the question of the extent to which senators
appointed to such offices could exercise the powers and functions conferred
upon ministers by the procedures of the Senate. In a statement to the Senate on
this matter in June 1991, President Sibraa gave consideration to the question of whether
secretaries could answer questions without notice on behalf of ministers and
whether they could represent ministers at estimates committees (SD, 18/6/1991,
pp 4778-9). On 3 September 1991 (J.1455-6) the Senate adopted the following sessional
order:
That any Senator appointed a
parliamentary secretary under the Parliamentary Secretaries Act 1980 may
exercise the powers and perform the functions conferred upon ministers by the
procedures of the Senate, but may not be asked or answer questions which may be
put to ministers under standing order 72(1).
During his term as Parliamentary Secretary to the Treasurer, 4 April 1990 to 24 March 1993, Senator McMullan appeared before
estimates committees in place of the Treasurer and the Minister for Finance. On 6 May 1993
(J.100) the Senate adopted a sessional order which contained, in addition to
the provisions included in the order quoted above, a prohibition on
parliamentary secretaries representing ministers before committees considering
estimates. The order was made permanent on 11 November 1998 (J.54). This
prohibition was subsequently relaxed to allow parliamentary secretaries to
represent ministers other than Senate ministers in relation to the latter’s own
responsibilities (6/2/2001, J.3860).
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