Purpose of the Bill
The purpose of the Ministers of State Amendment Bill 2022 (the Bill) is to amend the Ministers of State Act 1952 (the Act) to provide greater transparency and publicly available information regarding Commonwealth executive government positions.
It will do this by establishing legislative requirements for the publication of notices detailing the commencement or revocation of appointments to the Federal Executive Council or to administer a department of State, or directing a Minister of State to hold an office. The Bill implements Recommendation 1 of the Report of the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments, led by the former High Court Justice Virginia Bell AC.
Structure of the Bill
The Bill consists of one Schedule which contains amendments to the Act to insert three proposed sections respectively requiring the making of a notifiable instrument as soon as practicable after the Governor-General:
- chooses, summons and swears in, or revokes the membership of an Executive Councillor under section 62 of the Constitution
- appoints or revokes the appointment of an officer to administer a department of State under section 64 of the Constitution and
- directs that a Minister of State hold an office under section 65 of the Constitution or revokes such a direction.
Background
Constitutional basis for executive appointments
The Constitution provides the Governor-General with several powers relevant to the establishment and management of the executive government of the Commonwealth.
Section 62 provides that there will be a Federal Executive Council to advise the Governor-General, and that the members ‘shall be chosen and summoned by the Governor-General and sworn as Executive Councillors’.
Section 64 provides that the Governor-General may appoint officers to administer the departments of State. Such officers shall be Executive Councillors and the Ministers of State for the Commonwealth. Ministers must also be senators or members of the House of Representatives, or become so within three months of appointment.
Section 65 provides that unless the Parliament otherwise prescribes, the Governor-General may direct a Minister of State to hold an office.
Taken together, the practical result of these constitutional provisions is that the Governor-General may appoint Ministers of State to run Commonwealth departments and may allocate responsibilities and portfolios to those Ministers. By convention these decisions are made on the advice of the Prime Minister.
Responsible Government
The above provisions establishing the Executive Government in Chapter II of the Constitution, along with some others, establish a system of responsible government. This means that the ministerial decision makers in the Executive Government are responsible to the Parliament, and the Parliament is responsible to the voters.
Dr Stephen Donaghue KC, the Solicitor-General, summarised the High Court’s recognition of this system:
The provisions of Chapter II are sparse. Nevertheless, the High Court has long recognised that they provide for a system of responsible government – meaning a “system by which the executive is responsible to the legislature and, through it, to the electorate”. Indeed, responsible government has been recognised as a “central feature of the Australian constitutional system”. As a majority of the High Court put it in the Engineers Case, the Constitution is “permeated through and through with the spirit of … the institution of responsible government”. [footnotes omitted][1]
The Morrison appointments
Between March 2020 and May 2021, Scott Morrison, the then Prime Minister, was appointed by the Governor-General under section 64 of the Constitution to administer five departments of State in addition to the Department of the Prime Minister and Cabinet.[2]
The additional appointments resulted in the concurrent administration of the departments with their existing Ministers.
No announcements were made regarding these appointments, either by the Office of the Governor-General, the Department of the Prime Minister and Cabinet, or the departments involved. The changes were not tabled in Parliament or otherwise published.
Response to the appointments
Once the facts of the first of these appointments became publicly known in August 2022, the Government referred the matter to the Solicitor-General, Stephen Donaghue, for consideration.[3]
The Solicitor-General’s Opinion, SG No. 12 of 2022, was released publicly on 22 August 2022. The Solicitor-General considered the appointment of Mr Morrison to the Department of Industry, Science, Energy and Resources (DISER), and found that the appointment was constitutionally valid, but was ‘inconsistent with the conventions and practices that form an essential part of the system of responsible government prescribed by Ch II of the Constitution’ noting in particular:
Plainly enough, it is impossible for the Parliament to hold Ministers to account for the administration of departments if it does not know which Ministers are responsible for which departments.[4]
The Solicitor-General’s Opinion also recommended that the Government consider some reforms to require the publication of appointment information in some form and proposed several alternatives.[5]
Anne Twomey, Professor of Constitutional Law at the University of Sydney, explained why the transparency of executive government appointments was so important in the Australian system of Government, in an article for The Conversation in August 2022:
Is it appropriate for ministers to be secretly appointed to exercise statutory powers?
No, such matters should be notified to parliament and formally published so members of the public can know who is entitled to exercise particular powers. That is why we have Administrative Arrangements Orders and notifications of changes in ministerial responsibility that are recorded on the Federal Register of Legislation.
It is inappropriate for such matters to be kept secret – especially if it is kept secret from the Cabinet and from the minister who was formally allocated responsibility for a portfolio by the governor-general.
Such a lack of transparency is indicative of a lack of respect for the institutions of government and for the general public who have a right to know how power is allocated.
The Bell Inquiry
On 26 August 2022 the Government established the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments, led by former High Court Justice Virginia Bell AC (the Bell Inquiry).
The Bell Inquiry delivered its Report on 25 November 2022, and while Justice Bell noted that ‘the implications of the appointments are limited’ given Mr Morrison’s limited exercise of the additional powers, she found that the secrecy attached to the appointments caused significant issues:
Given that the Parliament was not informed of any of the appointments, it was unable to hold Mr Morrison to account in his capacity as minister administering any of these five departments. As the Solicitor-General concluded, the principles of responsible government were “fundamentally undermined” because Mr Morrison was not “responsible” to the Parliament, and through the Parliament to the electors, for the departments he was appointed to administer.[6]
Justice Bell went on to state:
the lack of disclosure of the appointments to the public was apt to undermine public confidence in government. Once the appointments became known, the secrecy with which they had been surrounded was corrosive of trust in government.[7]
The Bell Report contained six recommendations for greater transparency and public notification of executive government appointments. Most relevantly, Recommendation 1 called for legislative reforms that have been introduced in the present Bill:
Recommendation 1
Legislation should be enacted to require publication in the Commonwealth Gazette or in a notifiable instrument registered on the Federal Register of Legislation as soon as reasonably practicable following the fact of:
- the swearing of an Executive Councillor under section 62 of the Constitution;
- the appointment of an officer to administer a department of State under section 64 of the Constitution;
- the direction to a Minister of State to hold an office under section 65 of the Constitution; and
- the revocation of membership of the Federal Executive Council, an appointment to administer a department, and a direction to hold an office, when effected by an instrument executed by the Governor-General.
The notice or notifiable instrument should include the name of the person and the date that he or she was sworn, appointed and/or directed, or the date that such membership, appointment and/or direction was revoked. It may also be convenient for a copy of the instrument to be included in the notification.[8]
On 25 November 2022 the Prime Minister issued a media release welcoming the Report of the Bell Inquiry and advising that he would recommend that the Cabinet accept all six recommendations.
Committee consideration
The Senate Selection of Bills Committee stated in its Report no. 8 of 2022 that it had deferred consideration of the Bill to its next meeting.
At the time of writing no other committees had considered the Bill.
Policy position of non-government parties/independents
At the time of writing no statements have been released by non-government parties or independents.
Financial implications
The Explanatory Memorandum states at page 3 that the Bill will have no financial impact.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[9]
Key issues and provisions
Item 2 inserts proposed sections 5, 6 and 6A into the Act to introduce legislative requirements for the publication, as soon as practicable, of notices detailing the commencement or revocation of appointments to, respectively, the Executive Council, the administration of a department of State or the directing of a Minister of State to hold an office.
The notices are to be made by notifiable instrument, a type of official notice which is registered and available on the publicly accessible Federal Register of Legislation. The Explanatory Memorandum explains that such notices are ‘for notices of a legal nature that are not legislative but still of long-term public interest’.[10]
The notification requirements that the Bill proposes to add for each of these three types of executive appointments are substantially similar.
Proposed section 5 contains provisions relating to the notification of matters relating to the choosing, summoning, swearing in and revocation of members of the Executive Council (Executive Councillors).
Proposed subsection 5(1) requires that, where the Governor-General has sworn in an Executive Councillor, the Official Secretary of the Governor-General must notify that the Executive Councillor has been sworn in by making a notifiable instrument that specifies the name of the Executive Councillor and the date of the swearing in.
Proposed subsection 5(2) provides that the notifiable instrument must be made as soon as practicable after the day of the swearing in, and that it may comprise a copy of the instrument made by the Governor-General notifying that the Governor-General has sworn the Executive Councillor under section 62 of the Constitution (the section 62 instrument).
This last stipulation is presumably included because, while it may be useful for practical purposes for the proposed section 5 notifiable instrument to be a copy of the section 62 instrument made by the Governor-General, it is important to note that the proposed requirements are imposed on the Official Secretary to the Governor-General (a statutory office under the Governor-General Act 1974 who is appointed by the Governor-General), and not on the Governor-General.
Proposed subsection 5(3) clarifies that the validity of the Governor-General’s decision and instrument made under section 62 is not affected by any failure to comply with proposed subsections 5(1) and (2).
Proposed subsections 5(4) and (5) provide that similar notification requirements apply to the revocation of an Executive Councillor’s membership of the Federal Executive Council. Proposed subsection 5(6) similarly mirrors the validity provision of proposed subsection 5(3).
Proposed section 6 contains substantially identical provisions relevant to the appointment (or revocation) by the Governor-General of an officer to administer a department of State under section 64, and proposed section 6A contains substantially identical provisions for the situation where the Governor-General directs (or revokes a direction) that a Minister of State holds an office under section 65.
Item 3 is the application provision and will ensure that the requirements introduced by proposed sections 5, 6 and 6A will only apply to appointments and the like that occur after the date of commencement of the Act.