Key points
- This Bill will introduce a requirement for the Official Secretary to the Governor-General to publish a notification as soon as practicable after the Governor-General appoints a person to the Federal Executive Council or to administer a department of State, or directs a Minister of State to hold an office. Notification will also be required if the Governor-General revokes any of these appointments or directions.
- These changes are intended to ensure greater transparency for such executive appointments.
- The notification requirements have been introduced in response to the multiple portfolio appointments of the then Prime Minister, Scott Morrison, which were made in 2020 and 2021 but were only publicly disclosed by media reporting in late 2022.
- In particular, the Bill is part of the Government response to recommendations 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.
Introductory Info
Date introduced: 1 December 2022
House: House of Representatives
Portfolio: Finance
Commencement: The day after Royal Assent
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.